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Could you do with a bit of magic in your life?

Maternity pay and leave changes. Proposed changes to Maternity (and Paternity and Adoption) pay and leave.

You're fired! How many of us have wanted to say that in a moment of frustration? But can you ........? Make sure you know the issues behind dismissal.

Could you do with a bit of magic in your life?

When pressure is piling on, the phone never stops ringing and you are increasingly aware that you're not up to speed with latest employment legislation and Health & Safety issues, you wish you had a magic wand. If that's how you feel, then please come along and join us at the ISSBA Trade Fair - 28 April 2004, 5.00 p.m. to 9.00 p.m. at the Corn Exchange, Ipswich. Come and find out the magic of HR outsourcing at our stand and find out how we can help you transform your working life forever. Take the opportunity to relax and get acquainted with Steve Short a professional magician, who will be showing you a few tricks of the trade.

To read more about the Trade Fair go to www.issba.co.uk

Life in the fast lane

When your employees are stressed.... as an employer it's all your fault, of course. Or is it? Is it the workplace that's making them sick, or could it be their own pressurised lifestyle? How can you protect yourself and what should you expect your employees to do for themselves? It's a difficult balancing act, and if you get it wrong it could have serious repercussions for your business. Learn where you need to take real steps, and where you need to tread very carefully by attending our free short presentation at the ISSBA Trade Fair; 4.00 p.m. at Corn Exchange, Gatsby suite 28th April.

Maternity pay and leave changes.

It was announced in the November 04 pre-budget report that the 26 weeks SMP entitlement will be ‘initially’ extended to 39 weeks from April 2007 with ‘a goal of twelve months paid maternity leave by the end of the next parliament’. The proposals also consider a similar extension to periods of maternity allowance and adoption pay. A consultation document ‘Work and Families, Choice and Flexibility’ issued by the DTI considers these proposals in more detail. Find out more about the proposals, how they could affect you, and how you can make your views known bu looking at the full article.

Primarily, the proposals aim to ‘ensure every child has the best start in life’ and ‘give families more choice about how they balance their work and family life’ particularly in the first year of the child’s life. As a consequence much emphasis is placed on encouraging flexible working, providing adequate support and advice to parents and increasing the availability of child care provision. The government in its proposals suggest that ‘there have been considerable changes in household working patterns over recent years’. These changes include a growth in the population of ‘work rich’ households whereby both parents are working unlike previous years where it was normal to rely on one income. There has also been a significant rise in lone parents from 44% to 54% in the last decade. According to research, changes in family life and working patterns are set to continue. For example, it is expected that women with higher qualifications are more likely to return to work following maternity leave than unskilled mothers and women are gaining higher qualifications at a faster rate than men, also the changes in demographics, the ageing population and smaller families. Interestingly, according to research conducted by the Social Policy Research Unit, University of York, ‘one in five people will end up caring for another adult at some point in their lives’. In terms of the business environment, many employers including those engaged with Picasso HR have already responded positively to the issue of ‘work life balance’. Business owners recognise that ultimately the success of their business depends on recruiting and retaining the right people and by supporting this important asset through appropriate family friendly policies; they are more likely to gain a significant competitive advantage. Note: Need to review your current policy or consider introducing more family friendly options for your employees?, please contact Picasso HR 01473 890037. The Government suggests that research revealed many employers consider the introduction of family friendly policies to be ‘cost effective’ in fact 75% of managers report there to be ‘minimal or no cost involved’ when introducing such policies and 66% considered the increase in flexibility to be ‘cost effective’. In comparison with other countries the UK has traditionally lagged behind Europe in its provisions for Maternity, Paternity and Adoption leave and pay. However, during the last decade the UK has introduced additional provisions such as paternity pay which has place us amongst the leading group of European Countries on this measure, furthermore the UK has the longest period of maternity leave at 26 weeks in the European Union. However despite the current arrangements, parents continue to find balancing their commitments difficult to manage hence the governments’ decision to introduce additional benefits. For example, although most mothers receive 6 months paid maternity leave the additional 26 weeks (if they qualify) is unpaid, therefore unless parents have a further source of income or can rely of savings mothers feel forced to return to the workplace for financial reasons before they want to. Consequently the government is calling for your views on how they should meet the following goals and commitments: • extending Statutory Maternity Pay (SMP), Maternity Allowance (MA) and Statutory Adoption Pay (SAP) to nine months from April 2007, towards the goal of a year’s paid leave by the end of the next Parliament • improving communication between parents and employers during maternity leave, including reforming the periods of notice to be given by an employee prior to returning to work • introducing a right for mothers to transfer a proportion of their statutory maternity leave and pay to fathers, and considering whether transferring payment of SMP, SAP and Statutory Paternity Pay (SPP) from employers, and MA from the Department for Work and Pensions, to the Inland Revenue would make administration easier for employers • considering extending the right to request flexible working to carers of sick and disabled relatives and parents of older children (Chapter Picasso HR will be considering each of these points in turn over the next few months, your views; comments and opinions regarding this matter would be gratefully received.

You're fired!

So often employers wish they could just come out with "you’re fired", march the employee to the door and hope that that’s the end of their problems. There are many that still do, especially when all the evidence suggests that the employee is ‘guilty’, and end up at a tribunal.

Any claim for unfair dismissal must go through a two-stage test.

1. Was the dismissal for a fair reason?

And if the dismissal was for a fair reason and that the employer behaved reasonably.

2. Was the dismissal dealt with fairly?

This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which it was handled was unfair and so an unfair dismissal claim can be made.

Reasons for dismissal

The following is a list of fair reasons for dismissing an employee and points that an Employment Tribunal will consider;

1. Capability

This is split into several areas.

Qualifications

Does the employee have the necessary qualifications for the job and is a particular qualification actually needed for this type of job?

Incompetence

This can be repeated incompetence or a very serious individual incident.

But was the employee trained?
Were warnings given?

Health

An employee who is genuinely ill on a regular basis.

What was the illness?
How long was the employee absent from work?
Did the employer consider alternative work for the employee?

2. Conduct

Here are some of the possible situations where an employee’s conduct may have given the employer grounds for dismissal:

Theft Corruption, including taking bribes
Being drunk at work
Taking drugs at work
Abusive behaviour
Leaking confidential documents or information
Inappropriate use of the Company’s Internet and e-mail system
Being absent from work on a regular basis
Constantly late for work
Unsuitable work clothes or appearance
Taking holidays without informing your employer or not following the Company’s holiday procedure.
Unsuitable conduct with other members of staff during office hours
Unsuitable conduct outside work hours that has an impact on the employee's job
Even telling your employer exactly what you think of them.

All of the above may be persistent behaviour for which an employee has received earlier warnings or they may be individual incidents that are of a serious nature. The tribunal will also consider the following:

a) Was the conduct of the employee looked into thoroughly?

b) Did the employer believe that the employee committed the offence? The employer does not need absolute proof in a case of dishonesty, but there must be strong evidence of dishonesty for them to dismiss the employee.

3. Redundancy

The employer must have a fair procedure for selecting who is going to be made redundant. Once the method has been decided upon, the employer must stick to it. One of the most commonly used methods is 'last in - first out'. An employer cannot select an employee for redundancy if it is based upon one of the unfair dismissal exceptions.

4. Breaking the law

For example, a foreign worker whose work permit has expired. To continue to employ them would break immigration law. However, the employer should check whether the situation can be made legal before dismissing the employee.

5. Any other reason

This is very wide and is used to cover virtually every other possible reason. For example, where a business is being reorganised and some employees refuse to reorganise along with it or where they are no longer considered suitable. For example, an employee who refused to use computers when they were installed, despite being offered training, was dismissed. This was considered a valid reason to dismiss. This section can also include dismissing an employee because an important client demands it.

Fairness of Procedure

The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:

1	Was the employee given a fair hearing by the employer?
2	What evidence was used at the hearing and was it all used?
3	Did the employee have a representative at the hearing or a Trade Union official?
4	If there was more than one employee involved were they all treated in the same way?
5	Had the employee done this before?
6	Did the employer consider warnings? Were these used in the past?
7	Did the employer consider the overall performance of the employee? For example, did the employee previously have a long record of good work and behavior?
8	Could the employer have disciplined the employee instead of dismissing them?
9	Did the employee have an effective right of appeal against the decision?
10	Was the whole procedure carried out in the same way as previous procedures? If not, how did it differ and why?

Wrongful dismissal

Employer do not always realise when they have breached their contract of employment with the employee – whether that contract is implied or explicit. Either way it is important for employers to understand the type of things that may be considered as breach of contract and consequently a claim for wrongful dismissal could be brought against them.

Wrongful Dismissal should not be confused with Unfair Dismissal. Because Wrongful Dismissal is based on contract law, any claim under it means looking at the employee’s employment contract to see if the employer has broken the contract.

The most common breach is where the employee is dismissed without notice or the notice given is too short. Obviously, either party can end the employment relationship if they give the necessary notice. This will either be the legal minimum or what is stated in the employee’s contract. However, the employer can justify dismissing the employee without notice (Summary Dismissal) if the employee commits a serious breach of the contract, for example theft. The employer does not have to have proof of the theft, suspicion is enough and provided a fair procedure is followed.

Another example of Wrongful Dismissal is a failure by the employer to follow a contractual disciplinary procedure.

Wrongful Dismissal claims can be brought in the Employment Tribunal, county court or High Court depending on the value of the claim.

An employee can bring a claim for both Unfair and Wrongful dismissal. However, any money received under one will cancel out the same amount received under the other claim. This is to stop the employee receiving double compensation.

Constructive dismissal

A tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed' For example, the employer has made the employee’s life very difficult and the employee feels that they cannot remain in their job. When this happens the employee’s resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal. The employer's actions must have amounted to a fundamental breach of contract.

Constructive dismissal is based on the Employment Rights Act 1996 s 95(1) (re-enacting the Employment Protection (Consolidation) Act s 55(2)), which gives, as the third definition of dismissal:

"(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

Examples of Constructive Dismissal can include:

1	The employer not supporting managers in difficult work situations.
2	Harassing or humiliating staff, particularly in front of other less senior staff.
3	Victimising or targeting particular members of staff.
4	Changing the employee’s job content or terms without consultation.
5	Making a significant change in the employee’s job location at short notice.
6	Falsely accusing an employee of misconduct such as theft or of being incapable of carrying out their job.
7	Excessive demotion or disciplining of employees.

An employee can resign over one serious incident or due to the build up of a number of incidents. However, the employee must resign soon after the incident in order to be able to rely upon it. Generally, the actions of the employer must be a serious breach of contract.

An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The employee has to go on and prove that the dismissal was also unfair.

If the Constructive dismissal is connected to one of the Unfair Dismissal Exceptions it will be simple to prove that it was unfair.

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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PicassoHR Newsletter (August, 2010)

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