Employment Law Myths.    “The 90 Day Notice Period”

Health and Safety News   The overriding principle

Managing sickness and absence   A management headache….

What are written particulars of employment?   And who needs them?

Employment Law Myths.

Clients often ask us how to make changes to employees’ contracts. Like many areas of employment law, the answer depends on the particular circumstances. There are guidelines to follow and also a few commonly held myths.

One of best myths is the “90 days notice”.

Some people think that if they give 90 days notice, they can change any terms in an employee’s contract. Others believe that they have a right to 90 days notice of any change, however minor. Both are myths. Of course, myths are powerful when people believe in them, but problems can arise when one party is a believer and the other isn’t.

One well known case was that of the Hertfordshire School Dinner Ladies. It happened in the 80’s but the lessons from it are just as true today.

Hertfordshire County Council wanted to save money by changing the terms and conditions of their school catering employees. So the council wrote to each employee with an official letter headed “Amendment of Contract of Service – General Kitchen Assistant”.

The letter set gave them notice of a number of changes in their contracts, which had the effect of reducing their pay. Most of the dinner-ladies received 90 days notice.

Now some people might have shrugged their shoulders and accepted the pay-cuts. After all they had been given proper notice, hadn’t they? But these ladies were made of stronger stuff. They took the case to the High Court.

Find out what happened in the full article.

The High Court judge ruled that the Council had no right to make such changes unilaterally, no matter how much notice was given. So the ladies won their claim. It was probably fortunate for the Council that the ladies carried on working. If they had resigned and claimed constructive dismissal then they would have been entitled to even more compensation!

The moral of the tale is that it’s dangerous to rely on myths. There are much safer ways of changing contracts. The best way is always by agreement because by definition a contract can only be changed this way. But of course it’s not always possible to gain agreement. In these situations you may decide to give notice to terminate the old contract and offer a new one. There is a possibility that the employee could claim unfair dismissal but if you follow the correct procedures you can minimise the risk.

At Picasso HR when we’re asked to advise on changing contractual terms, we assess the risk of each option.

If you have attended the Picasso HR “Bite-size” Employment Law Seminars you will be familiar with the “Dinner Ladies”. It’s one of many cases that we use to illustrate the myths and truths of Employment Law.

Health and Safety News

On 17th August the Health and Safety Executive put out a press release with the heading:  “Fatal Injuries to British workers at Record Levels”.

Fortunately they mean record Low levels. Last year’s figures were actually the lowest number of fatalities on record.

But there’s nothing to cheer about, it just means that last year 223 people went out to work one day, and never came home again.

The most common type of fatal accident is falling from a height. This has been the No 1 killer every year for the last ten years. After that, it’s being hit by falling objects, and being hit by vehicles.

And while the riskiest places to work are in Construction and Agriculture, these three killers can strike almost anywhere. Of course it’s not only fatal injuries that matter. It’s staggering to note that in 2003-4, almost 4,000 people suffered major injuries after falling from heights. Looking at these accident figures explains the need for the Work at Heights Regulations 2005. These regulations make it very clear what you must do if anyone at work is exposed to a risk of falling from a height. The new rules apply to any situation where a person could be injured by falling. So whether it’s using a stepladder to change a light bulb, or a ladder to mend the guttering, there are new duties to be aware of.

There is one sentence in the regulations, called the overriding principle, which sums them up beautifully. It just says that “you must do all that is reasonably practicable to prevent anyone falling”.

The rest of the regulations tell you how to do this in more detail, i.e. you have to ensure that:

• all work at height is properly planned and organised;
• all work at height takes account of weather conditions that could endanger
  health and safety;
• those involved in work at height are trained and competent;
  the place where work at height is done is safe;
• equipment for work at height is appropriately inspected;
• the risks from fragile surfaces are properly controlled; and
• the risks from falling objects are properly controlled.

To learn more about these regulations you can visit the HSE’s website (www.hse.gov.uk). But if you would like to put your mind at rest that you are complying with the regulations, why not ask Picasso HR’s specialist Health and Safety team to help you.  

Managing sickness and absence

Managing sickness and absence is invariably a headache for any company, large or small.  No matter what size or nature of business you are in, or geographically where you are - it affects everyone.

The CIPD’s 2006 Absence Management survey has revealed that the annual level of absence fell by 0.2% to 3.5% of working times equating to  8 days per employee per year.   The costs of this equate to £598 per employee (the costs being slightly higher in the public sector at £680).  A  recent CBI report puts the estimated cost to UK industry at a massive £13.2 billion a year.

The most common causes of sickness absence are minor complaints such as colds or headaches, which can be treated most effectively with self-medication. GPs are not obliged to provide their patients with sick certification for illnesses of seven days or less. The use of GPs services to manage short-term sickness absence is a waste of NHS resources, problematic for employees and may have cost and efficiency implications for employers.

Short-term sickness accounts for 80% of absences and 62% of lost time.

Improvements in health and safety performance may offer greater opportunities for cost control than many of the business areas commonly reviewed for the purpose by management. The largest single area for loss control in any labour intensive industry is related to health. With the majority of absences accounted for by minor complaints the potential for management of these costs is even more apparent.

Some tips on managing absence are in the full article.

Absence management tips

• intervene early to help the sick employee. The sooner that you take positive action, the more likely it is that long-term absence will be reduced, and that they will successfully return to work;
• secure commitment and support from senior management to improving absence management.

There are six key elements to the process of managing sickness absence and return to work:

• Recording, monitoring and analysing sickness absence within your organisation.
• Keeping in regular contact with sick workers.
• Planning and undertaking workplace adjustments that will help sick workers to return safely.
• Making use of professional advice and treatment, including G.Ps, occupational health professionals and rehabilitation providers.
• Agreeing and reviewing a return to work plan with the worker.
• Co-ordinating the return to work process.

Practical adjustments – what are they?

Simple adjustments made to the premises, job or working arrangements can enable sick workers to return to work safely before their symptoms have completely disappeared. Examples of adjustments to working arrangements include:

• allowing a phased return to work to build up strength;
• changing individuals' working hours to allow travel at quieter times, or allowing flexible working to ease their work-life balance;
• providing help with transport to and from work;
• arranging home working (providing a safe working environment can be maintained);
• allowing an employee to be absent from work for rehabilitation treatment.

Examples of adjustments to premises

These include:

• moving tasks to more accessible areas
• making alterations to the premises, e.g. providing a ramp for people who find steps difficult

Examples of adjustments to a job

These include:

• providing new or modifying existing equipment and tools
• modifying workstations, furniture and movement patterns
• modifying work patterns and management systems
• providing a buddy or mentor to your employee while they regain their confidence back at work
• reallocating work within the sick employee's team
• providing alternative work.

Interestingly, statistics show that UK employers are getting to grips with this managing absence issue with  the average level of employee absence falling in two consecutive years.

Sources:  CIPD Absence Management Survey 2006 and HSE website – Managing Absence/SWASH survey

What are written particulars of employment?

When we come across employers we are constantly amazed at how many of their employees do not even have an offer letter let alone any documentation that indicates their basic terms and conditions of employment. Often the terms and conditions are verbally agreed, which as you can imagine could lead to disputes and disagreements - a recipe for an unhealthy employer employee relationship.

The employer is also required to provide a written grievance and disciplinary procedure.

The law says that employees are entitled to a written statement of their particulars of employment, meeting the requirements described below within two months of joining. The consequence of not having these should you end up at a tribunal and the employee wins their case is that they will be awarded additional compensation.

What information must the written statement include?

The written statement must cover:

• the names of the employer and the employee;
• job title or a brief job description;
• the date of joining and the period of continuous employment if relevant;
• salary and when it is to be paid;
• hours of work;
• holiday entitlement;
• entitlement to sick leave, including any entitlement to sick pay;
• pensions and pension schemes;
• notice of termination -  employer and employee entitlement;
• where it is not permanent, the period for which the employment is expected to continue or, if it is for a fixed term, the date when it is to end;
• either the place of work or, if the employee is required or allowed to work in more than one location, an indication of this and of the employer's address; and
• details of the existence of any relevant collective agreements.
  

If an employee is normally employed in the UK but will be required to work abroad for the same employer for a period of more than one month, the statement must also cover other terms.

This information may be stated in an offer letter and does not have to be in any special format.

Of course a contract of employment may contain additional terms and conditions and possible restrictions during and after termination of employment.

If you need advice and guidance on forming contracts of employment and policies and procedures contact us on 01473 890037. You may wish to take advantage of our FREE health check of your current HR documentation.

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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