Directors and managers in UK businesses are well aware of the difficulties in dealing with the requirements in UK law to allow their employees to take statutory leave under certain circumstances. For example women are entitled to take maternity / adoption leave; those with over a years service can take up to 52 weeks leave when they have a baby or (for male employees also) adopt a child. Following this period of course, the employee in question then effectively has the right to go back to their old job (or a suitable alternative on no less favourable terms) which must be kept available for their return. The introduction of shared parental leave now also means that both parents can now share the 52 weeks leave between them.

Businesses have also had to absorb the requirement to allow parents parental leave of up to 18 weeks off (albeit unpaid) for each child and adopted child, up to their 18th birthday (restricted to 4 weeks for each child in a year). This can be activated with 21 days notice to the employer, and although it can be postponed by the employer for good business reasons for up to 6 months, it still eventually must be allowed if requested.

As well as these rights, fathers (or individuals adopting a child) are also able to take up to two weeks paternity leave.

It means that when you add in the contractual statutory minimum annual leave entitlement of 5.6 weeks per annum (that is 28 days for a worker working a 5 day week), and the entitlement to reasonable unpaid time off to deal with an emergency involving a dependant, it is possible for a small business to lose the services of a key worker – even a male one – continually for the best part of a whole year just based on their statutory leave entitlements.

Furthermore the Office of National Statistics published statistics published in 2017  showed that the average UK worker took 4.3 days per annum off through sickness. Of course this is an average and it is possible that any individual could have significantly longer off than this.

It is therefore entirely possible that in the year of the birth of their child, a business could easily lose the services of a key employee, male or female, for the best part of a whole year. So in a small / medium sized business, where perhaps there may be one or several virtually irreplaceable key employees who may single-handedly support an important area of the business, what can be done to minimise the potentially disastrous absence of these employees? Here are some suggested actions:

1. Businesses must make a careful risk assessment by identifying those positions within their organisation which are key positions and which if they were left absent for any significant length of time would damage the business.
2. For every key position it will be necessary to have a strategy to cover that position in the event that the individual goes out of the business for a prolonged period.
3. This strategy will vary depending on the post in question and the nature of the business, but could involve such things as:

• Having key jobs carefully described and defined with all the duties and responsibilities carefully catalogued so it is easier for a replacement to come in and undertake the role.
• Having a suitably trained ‘understudy’ (say a junior or apprentice) able to stand in and undertake all or most of the main duties. This is good succession planning anyway.
• Contracting with an agency to supply a suitably qualified and skilled individual when required. The agency could be asked to maintain a list of potentially suitable candidates within their database.
• Maintaining a personal relationship with an interim contractor who could step in at short notice. Similarly there may be a retired ex-employee experienced in the job who would be able to come back for a period of time when necessary
• Outsourcing the work to another organisation until the employee returns
• Agreeing with the key employee that they would undertake a certain amount of paid work during their absence.
• Having a plan to re-distribute the duties of the post around others in the current workforce.

All these leave arrangements are undoubtedly a potential burden on small businesses, and it is likely that they could be even further enhanced in due course, for example if the eligibility criteria become more relaxed or the pay on offer becomes more attractive through legislation.

All-in-all this should serve to remind Business Owners and managers of the need to plan more carefully for losing key employees. Addressing these issues before they become a problem could potentially go a long way to minimising the impact on the business further down the line.

(Revised March 2018)

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This feeling is no doubt heightened by HR professionals who we hear regularly in the media expounding on the costs associated with such things as Employment Tribunals, and how easy they are to lose. There are also innumerable HR Consultancies on the internet all offering to provide services for you to ensure you are “fully legally compliant”, and also to “add value” by providing services that you never even knew you needed like the latest HR software, or an “HR Audit” of your company.

As an HR practitioner of over 30 years standing, and as one who currently works as an HR Consultant, let me tell you a secret. If you run your small / medium sized business reasonably well and you have no major staffing issues, then you do not need to employ an HR Consultant (usually starting around £500 per day), you do not need to “subscribe” to an expensive HR website, indeed you don’t really need to spend any significant amount of money at all on HR services! Here are the 10 reasons why:

1. If you are competent enough to manage your business with all the complexities that entails, there is no reason why YOU can’t easily ensure you have a proper HR framework in place to support your staffing issues. You really don’t need an HR Consultant who is external to your organisation to tell you how to manage your staff.
2. The risks of getting things wrong are massively over-hyped. HR Consultants and Employment Lawyers will fill you full of horror tales about the costs of losing an Employment Tribunal. The simple facts are that if you act reasonably as an employer, you are likely to spend far more on HR Consultants and lawyers trying to defend an Employment Tribunal claim than you would lose if the findings went against you! Employment Tribunals are really quite rare in the scheme of things, and if you do have a claim made against you by an employee, then if you have acted reasonably in your dealings with them you should have no fears in defending the ET yourself.
3. HR Consultants are geared towards maximising their income rather than helping your business. This means that they will do their best to persuade you that you need to implement those products they support. A good example is HR software. Do you really need a bespoke HR System to record your employee details? An Excel spreadsheet or Access database knocked up in an afternoon might do just as well. If you do want an HR system you should shop around, there are a number of fairly cheap stand-alone systems out there which you could easily implement yourself.
4. You do need to have proper HR policies in place to regulate how you employ your staff. However these days there is so much information on the internet you can easily find the information you need on there. If you get your information there, then there is no need to employ an HR Consultant to come in to your organisation and tell you the same things!
5. There are some basic HR policies and procedures that you really  need to have in place. These are in my view: Discipline, Grievance, Equality, Harassment / Bullying and Health & Safety. You may also want to add Induction and Training, and you will need some guidance on Maternity / Paternity /Shared Parental leave and pay, and probably on Flexible Working. In this day and age you will also need to have compliant policies on data protection in particular related to the General Data Protection Regulation (GDPR) especially if you hold sensitive / personal data on employees. If you have a problem with sickness, then you should implement an Absence Management policy to address this. To be honest the easiest way to address all this is to produce a Staff Handbook which outlines all these policies and any other issues which you think are relevant for your particular circumstances. Our site has templates of most of the policies you will need – you can download and adapt these. We also have a full Policy Manual, and a template Staff Handbook. If what you need is not here, then you can easily Google it and you are likely to find something on the internet, or you can ask us if we have it. We do have lots of stuff which we have not yet put onto out web site. You really don’t need an HR Consultant to develop something bespoke for your organisation when so many resources already exist and can be adapted.
6. The internet is a fantastic free resource for small / medium-sized businesses. From an HR perspective you can access all the information you could possibly need to ensure you have the necessary framework in place to support your staff. The UK Government’s Employing People site is a great resource for employers, as is the ACAS site. If you need Health & Safety information go to the Health & Safety Executive site, and for a significant amount of other professional HR resources, you can continue on our site – all of these resources are free.
7. When recruiting, which you may not do very often, you may feel you need professional guidance. This is not necessary. Just be sure that the advert you produce for your vacancies is not in any way biased towards or against one or more type of person. It is often a good idea to let a colleague have a look at it just to double check you have not unconsciously missed something. At interview construct a list of questions based on the skills needed for the job, basically asking for examples of what the individual has achieved in that regard in previous jobs. Ask every applicant the same questions. Interview with a colleague and guard each other against any bias or discrimination creeping into your questioning. Make careful notes of the answers and how you have concluded who is the best candidate. Have a look at our Recruitment page.
8. When dealing with staffing issues, if you have a problem with a staff member, you should manage the situation as you would with any other business problem. That is make sure you gather all the information you need, review the situation and then take appropriate action. If this relates to disciplining a member of staff, just make sure you investigate properly and then apply your agreed disciplinary procedure. Just be sure you have good notes on everything you do.
9. If you are faced with a staffing situation which is new to you and you are not sure how to act, you should flex your network of colleagues to see if anyone you know has experience of a similar situation. You can also look on the web to see if you can get guidance there. Here at Human Resource Solutions, we also offer the opportunity to ask questions of our qualified HR staff. We generally turn these questions around in 24 hours and the service is free. Have a look at some examples.
10. Don’t worry about being caught out by changes to employment law. To be honest these are so well trailed if you simply keep an eye on the Business Links site noted above, or our site you will be certain to know what changes are coming and how they will affect you. We will always update our policies to reflect any changes. It really is as simple as that.

In conclusion, if you are careful about any staffing issues and you ensure you implement a decent framework of up-to-date HR policies and procedures which meet your employment law obligations, then you should have no anxieties about getting things wrong and feel no necessity to seek expensive HR Consultant help.

(Article updated 30/3/2018)

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The fair reasons in law for dismissal

1. Conduct – where an employee breaks the terms of their employment contract through such things as continually missing work, poor discipline or theft / dishonesty etc. In order to dismiss using conduct, you really need to demonstrate that you have properly followed a fair procedure, and so it is important that you have a disciplinary procedure, which should be in line with the ACAS Code of Practice. Often the difficulty is in deciding whether the misconduct merits dismissal or not. Generally it is safest to apply a warning – either a first warning, or where the misconduct is more serious (or where a first warning already exists) a final warning. However for gross misconduct where the act is so serious it obviously warrants dismissal, it is ok to do so; just be sure you properly investigate and go through your disciplinary procedure first.

2. Capability – where an employee is unable to perform to the required standard for reasons such as inability to deal with new technology, inability to get along with fellow workers, or long-term persistent illness. (However if the long-term illness relates to a disability you have a legal obligation to make ‘reasonable adjustments’ to help the individual to work). This can be a tricky one to get right, and it is advisable to ensure you have a Capability Procedure in place which meets best practice. This will ensure that you have properly defined the problem, outlined the required improvements, and given the individual time and opportunity to improve. These timescales do not need to be elongated if the individual’s capability is seriously impacting on the business.

If you have an employee giving you conduct or capability problems – our book may be of some help: “How to Deal with Staff who Can’t or Won’t Perform”

3. Redundancy – where there is no longer any, or enough, work for the employee in your workplace. Although not as difficult as some think, it is important to get the process right, in particular selection for redundancy. If you are moving to a situation where you  will be making staff redundant, you really must implement a Redundancy Policy, and agree this if possible with any recognised trade unions. You will need to decide whether you wish to offer voluntary redundancy, or whether you need to move to making staff compulsorily redundant. There is useful guidance on making staff redundant on the Government Business Link site.

If you plan to make 20 or more employees redundant in one place of work within a 90-day period – a collective redundancy situation – you must:

• Notify the Department for Business, Innovation & Skills (BIS) using form HR1.
• Consult with workplace representatives. These may be either trade union representatives and/or, elected employee representatives for those employees not represented by a union. If your employees choose not to elect employee representatives, you must give the relevant information directly to each individual.

5. Illegality or contravention of a statutory duty – you can fairly terminate if continuing to employ would break the law, for example you employ a driver on driving duties who loses his licence, or you find an individual does not have an appropriate visa to work in the country. If possible, you would be expected to look for alternative employment before dismissal.

6. Another Substantial Reason – this is a general catch-all of other reasons – these can be such things as imprisonment of the employee, an unresolvable personality conflict etc. Generally this reason for dismissal should not be relied on where possible as it is often more difficult to prove a ‘substantial’ reason.

Please Note: Retirement – The Default retirement age came to an end in 2011, and so there is now no automatic age when you can insist your staff retire. There is more information from ACAS here.

If you end up at an Employment Tribunal, what are your risks?

If an employee decides to claim unfair dismissal, ACAS will contact you to see if things can be worked out by conciliation. This is a first chance to look at the circumstances of the dismissal; if you feel you have got things wrong, ACAS can help to sort it out. If however you decide you have made a justifiable decision, you can defend your decision at the Employment Tribunal. This is not something to be unduly worried about, and you do not need to employ an expensive lawyer or HR consultant to do this for you. The Tribunal will make allowances for your lack of experience.

Where an employment tribunal decides that an employee has been unfairly dismissed, it must award a basic award and may also award a compensatory award.

Basic Award
For each year of employment (subject to a maximum of 30) those employees deemed unfairly dismissed:
-  over the age of 41 are entitled to 1.5 weeks pay;
-  between the ages of 22 and 41 are entitled to 1 weeks pay; and
-  under 22 are entitled to 0.5 weeks’ pay.

The current weekly maximum (from April 2018) is £508 with a total maximum basic award of £15,240. This multiple may be increased (higher basic awards) where employers fail to comply with an employment tribunal order as to reinstatement or re-engagement. If an employee contributes to their own dismissal or refuses reinstatement, the basic award can be reduced or extinguished.

Compensatory Award
In addition to the basic award, the employment tribunal can also award a compensatory award to take into account loss of net earnings (immediate and future), pension rights and other fringe benefits e.g. company car, and expenses. The current ceiling on any compensatory award (from April 2018) is  £83,682. An employer’s failure to follow proper disciplinary and dismissal procedures as set out in the ACAS Code of Practice on dismissing an employee can lead to an increase of up to 25% in the amount of compensatory award which would otherwise be payable.

Conclusion

If you implement and follow proper procedures it is unlikely an Employment Tribunal will find against you. If they do, demonstrating responsible use of proper procedure will help to minimise any costs against you.

(Article updated March 2018)

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However this has often proven to be difficult for businesses where standard job descriptions and contracts of employment have meant that staff work rigidly and will not agree to be flexible. So can anything be done about this? The answer is yes it can and we will look at 13 suggestions for ways you can improve the flexibility of your workforce.

1. Flexible Contract of Employment – Ensure when you employ new staff that the contract you offer them builds in the flexibility you need for your business. This should include:
2. A mobility clause – to allow you to move staff to another location if necessary
3. A movement clause – to allow you to move your staff to other reasonable day to day work if required
4. A short-time working clause – to provide for a temporary reduction in contractual days in a week, or hours in a day.
5. A lay-off clause – to provide for a time when you temporarily cannot provide any work for the employee
6. Implementing these arrangements - these clauses must be part of your employees contract, or must have been significant custom and practice, before they can be legally implemented (unless you get the agreement of your workforce to implement these arrangements perhaps in avoidance of redundancies).  Similarly either you will need an explicit arrangement in the contract, or an agreement with the workforce in relation to stopping or reducing their pay during lay-offs and short-term working. Acas produce a useful leaflet on this which can be found here.
7. Flexible Working Arrangements – consider implementing working arrangements for your staff which maximise your flexibility to profile your workforce to the busy and slack periods of workload. Here are some options to think about:
8. Annualised hours – where if your business has major peaks and troughs throughout the year, you might look at averaging out hours across the year for some or all employees whereby they would work reduced hours during quiet times, and increased hours during peaks. The employee would be paid in equal installments throughout the year, with no entitlement to overtime or enhanced payments during busy periods. Implementing such an arrangement can be somewhat complex and must comply with the Working Time Regulations.
9. Utilise zero-hours and / or agency workers – this can form a very useful source of additional workers to cover for example seasonal peaks in workload. Zero hours contracts are where staff agree to be available for work but do not have any set number of hours / times of work specified; they can also refuse any work offered. A good relationship with an agency who know your requirements can also help you to get staff in at short notice. You could also of course employ part-time staff and offer them additional hours at busy times, but they have no requirement to work these extra hours (unless you make a contractual commitment to providing them with these hours). Here is a zero-hours contract template.
10. Introduce a Time-off-in-Lieu system (TOIL) – whereby additional hours worked during busy times are given back as time off during quieter periods – normally all TOIL is paid at basic rates. This needs a careful policy to ensure there is clarity about when TOIL or overtime is used.
11. Outsource some work – it might be possible to push out some work to a third party at busy times – this can be an expensive option, but can ensure you meet your needs while someone else takes the strain. Simple administrative work can often be treated in this way. Similarly could you share some services with another business which might be a suitable arrangement as long as both don’t have the same peaks and troughs – a joint accounts department for example.
12. Train your staff to be flexible – often staff undertake a very narrow job description, and when their work is slack, but other parts of the business are pushed, it makes sense to be able to re-deploy them to busy areas of the business. If this requires them to have received specific training to do so, then it is generally very cost-effective to have them undertake the training and so enhance their flexibility.
13. Acas have produced a useful guide on flexible working and work-life balance which is well worth a look. You will find it here.

(Article updated March 2018)

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In the March 2018 UK Labour Market Statistics, the Office of National Statistics reported the unemployment levels in the UK at 1.45 million people  actively seeking work.

The upshot of this is that every job you advertise is likely to generate dozens and potentially hundreds of applications especially if you are not asking for particular skills or qualifications. What can you do to ensure you make good sound appointments without being overwhelmed by unsuitable job applicants.

Firstly you need to understand and be able to run a good recruitment process – have a read here - this  will help you to think through what you should be doing. However given the likely high number of potential applicants, there are some initial things you can do to try to ensure you only have to consider applications from the most suitable candidates:

1. Look internally first: do you have any staff who are temporary who might be suitable for the post, or perhaps some part-time staff who might be able to take on additional hours?
2. Get referrals: before you start advertising, try to speak to people you trust like current employees, friends and relatives. They may be able to recommend someone that they know well who is looking for the kind of job you have on offer. You could offer the job on an initial trial period to assess how they get on in the role.
3. Use your network: do any of your professional associates know of someone suitable – perhaps someone made redundant from their organisation that they can recommend
4. Make applicants go to your website: where they can get more details (you can do this through printing a link to it in an advert in the local press or online job board). Once there you can give a clear definition of the sort of person you are looking for, and outline any specific requirements of the post in far more detail than you could do in an advert.
5. Don’t ask for CVs: if you do you will be inundated by hundreds of stock CVs which applicants routinely send to any job vacancy they think might be in any way suitable. Use a bespoke application form which will require the individual to do a bit of work to complete. This is a good test of their motivation to apply.
6. Be ruthless when shortlisting: at this stage don’t waste time trawling through every word on an application – just look for the specific essential criteria you have stipulated – e.g. a particular level of experience. If you cant find this then discard the application.
7. Use the telephone: once you have reduced the applications to a reasonable number, consider setting up short – say 10 minute – telephone screening interviews with the applicants. Ask them all the same questions which you will design to give you some insight into their knowledge and experience for the post.
8. Once you have appointed, retain any other suitable applications on file so that you can use them if another suitable vacancy comes up – given the state of the current job market it is quite likely the applicants will still be looking for a job.

Hopefully by utilising some of the above tips you will be able to not only save yourself valuable time in recruiting to your post, but will also have reduced the cost of recruitment significantly too.

(Article updated March 2018)

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It’s not hard to do this, but it needs some preparation and planning to ensure you get the best and most suitable employee for your business. Just follow these steps and you won’t go wrong.

1. Describe the new job

Write down what your new employee will be doing. Reflect on this carefully – one of the main problems we find is that new jobs are not properly thought through and in fact often the new employee finds they don’t have enough to do.  Think about recurring tasks – are there enough to keep the employee busy? If so think about how many hours per week this will take. It is often better to start with a part-time employee and review it after a few months. You could even think about a casual arrangement or a zero-hours contract to start with, where you only call in the employee when you need them.

You will also need to decide on the terms and conditions you will be offering. As a minimum in the UK you will have to offer the minimum wage and 5.6 weeks paid holiday entitlement.

2. Describe the ideal person for the job

What sort of individual would be ideal for your new job? Think about the skills, experience and any qualifications they would need. This is not only now, but in the foreseeable future. For example might you need the employee to drive in future? If so then you might want to employ someone with a driving licence. A good way to structure this is to identify what attributes are essential and those which might be desirable (but not essential). Just remember when you are doing this that you must not discriminate directly or indirectly on the grounds of age, disability, gender reassignment, sexual orientation, marriage and civil partnership, pregnancy and maternity, race, religion or belief or sex which are protected characteristics in law.

There is a job description compiler here which will help you to describe the job and the person specification (n.b. small companies can ignore the competency description section).

3. Think about how to recruit the ideal person

a) This will very much depend on who you are looking for. The first place to look for your new employee is your own network! Do you know someone who would be ideal for the position? Could you approach them and see if they would be interested? Send them the job description and person specification and see what they say. If they are not interested perhaps they know someone equally suitable you could approach.

b) If the role requirements  are technically or academically based, then perhaps you could approach local university careers offices. Often at the end of the academic year there are large numbers of clever graduates looking for a job.

c) JobCentre Plus in the UK have a Small Business Recruitment Service which can help you through the recruitment process and connect you with suitable applicants who meet your specification. They can also signpost you to things like job trials which  is a way of trying out a potential employee before offering them a job. There are also various wage incentive schemes worth several thousand pounds if you employ someone who is under 24 or who is disabled. Further information and contact details here.

d) If the above steps fail to produce any suitable applicants, then you could advertise the job more widely. There is some information about how to write an effective job advert here. Where you place the advert will depend on the sort of person you need.  You should definitely steer clear of national newspapers or professional journals if you can as these are extortionately expensive, but sometimes local papers can be a good idea to reach local applicants.  However by far the most popular method of recruitment these days are the online recruitment boards such as Monster recruitment or Reed in the UK which will give you advertising exposure on their recruitment sites for 30 days or even longer for around £200. Once you have sufficient applications you should shortlist using the person specification you drew up earlier and then interview the candidates. There is an article here which will help with this.

4. Sort out the administration

Once you have offered the candidate the job and they have accepted, you have a few things you need to do:

a) Check they have a legal right to work in the UK – Government checker here.

b) A Disclosure and Barring Service check may be required if the employee will be working in certain areas e.g. with vulnerable groups or in the security field. Use an umbrella service for this – details here. Employers in Scotland can ask their employees to get a criminal records check from Disclosure Scotland, while those in Northern Ireland should go through Access NI.

c) You will need Employers Liability Insurance of at least £5 million before the new employee starts. There are significant fines if you fail to have insurance and display the certificate. Any decent insurance broker can help you with this.

d) Register as an employer with HM Revenue & Customs (HMRC) using the online tax registration service. You can also use the HMRC basic PAYE tool which allows employers with less than 9 staff to work out payroll deductions and then report payroll information online in real time. You could also use your accountant or a payroll bureau to ensure this is done and your new employee gets paid!

e) before or on their first day of employment provide them with a written statement of the main terms and conditions of their employment. This should contain:

• the employer’s name and the name of the employee
• the date on which the employment began
• the date on which the period of ‘continuous employment’ began (not necessary for your first employee!)
• pay (or how it is calculated) and when it will be paid
• agreed normal working hours and days of the week expected to work and whether these may be variable (and if so how that variation would be determined)
• entitlement to holidays and holiday pay (and how this will be calculated)
• the employee’s job title or a brief description of their work
• the employee’s place(s) of work
• details of disciplinary, dismissal and grievance rules and procedures
• details of training entitlement provided by the employer and any part of that  which the worker is required to complete (and any required but which the employer will not bear the cost)

You should also include in the written statement, or at least make available in easily accessible documents:

• terms and conditions relating to sickness and injury, and sick pay (other than statutory sick pay)
• terms and conditions relating to pensions
• the notice period the employee is obliged to give and entitled to receive for termination of the employment contract (and if you reserve the right to give payment in lieu, it would be sensible to say so)
• how long the employment is intended to last (unless permanent)
• any collective agreement which directly affects the employment (again not necessary for your first employee unless you have previously agreed any).

There are loads of free templates on the web for this – you will find examples on our website here. (You will also find there an integrated contract and staff handbook which is ideal if you are employing your first staff member).

Hang on – did he say pension arrangements!!? Yes all employers must provide a suitable pension scheme for their employees and auto-enrol them into this scheme on employment (the individual can elect to opt out again though). There are a variety of schemes which meet the necessary criteria, but a good starting point is the UK Government sponsored National Employment Savings Trust (NEST).

When you send the statement, it is a good idea to also include a note of any rules, policies or other information you may want the new employee to know about. For example any rules about their conduct, dress code, confidentiality, use of email and the internet, smoking, health & safety, flexible working etc. This can eventually be extended into a staff handbook as you grow your staffing numbers.

5. Welcome them onboard!

So the start date for your new employee is approaching and there are still a few tasks which you need to sort out:

• If they need a desk, chair and computer you need to source those and any other equipment such as a phone; don’t forget to set them up with an email address too.
• Ensure the working conditions are appropriate, including access to a toilet. It is worth doing a quick health and safety audit of their work area just to be sure all is well. There is some advice on risk assessment from the Health & Safety Executive here.
• Think about putting together an induction programme for them to help them learn the job as quickly as possible. What do they need to know, who should they meet: suppliers, key customers, what systems do they need to learn and so on. Write this down and go over it with them on their first day. Include any targets or objectives you would like to agree with them.

That’s it you are now officially an employer! Be good to your staff and they will repay you many times over in making your business a great success.

(Article updated January 2020)

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Members of staff who frequently claim they are sick and can’t come to work; this is often on an intermittent basis involving one or two days at a time which is impossible to plan for. On examination, there is a frequently a pattern to this absence which makes it even more exasperating.

For example on a Monday following their weekend, or immediately after a holiday. Even if there is no obvious pattern, there are staff who frequently take days off sick, and their colleagues are expected to cover for them with all the stresses and strains that entails. In large organisations, this is difficult enough, but in smaller companies, these episodes of sickness can seriously threaten the integrity of the business. So what can you do about this?

Here are the 5 key tips to sort this out:

1. Ensure you have good, accurate and up-to-date information on the sickness record of the individual in question. You should plot their sick time on a calendar or spreadsheet where any patterns will stand out. Then when you come to discuss this with them, there is no ambiguity about the problem.
2. Make sure your company has a policy on dealing with sickness absence which has clear ‘trigger’ points. That is when an individual has a certain number of days off within a certain period, it triggers management action. This usually amounts to the requirement to convene a formal meeting to discuss the individual’s sickness record, and to warn them about the consequences of continued short-term absences. There is an example policy here. It is also a good idea to insist that staff with above a certain number of periods of sickness absence produce a medical certificate from their GP every time they are absent.
3. After every period of sickness, a return-to-work meeting should be held with the individual on the first day back. This confirms to them that management are aware of their sick time, and allows the opportunity to discuss any health problems they may have. Also ensure that the issues discussed, and what is expected of the individual is written down in a letter to the individual, and that this is properly filed on their personnel file.
4. Ensure all managers and supervisors are trained to apply the policy consistently. Once staff realise that the company means business on these sorts of intermittent periods of sickness absences, the number of absences tends to decrease significantly.
5. Individuals who fail to improve their sickness absence record, following appropriate warnings, can be dismissed on the basis of capability – that is they are not able to fulfill their contract of employment because of their sickness absences. Take care that you have followed your procedure carefully, and that you have not discriminated against anyone on the basis of a disability (or indeed any other reason).this demonstrates that you take sickness absence very seriously, and shows staff who have had to bear the increased workload for sick colleagues that you have taken positive action to sort this out.

Often managers in small businesses worry that they cannot take action against individuals who demonstrate frequent intermittent sickness periods. This is not the case. Staff who deliberately take time off claiming to be sick when they really are not, put their colleagues under pressure to cover their duties, and ultimately threaten the success of the company and the livelihood  of all concerned. Application of a suitable sickeness absence policy, clear information on the pattern of absences, and consistent application by managers and supervisors will go a very long way to control and hopefully eradicate this sort of behaviour.

(Article reviewed February 2018)

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1. Temps only qualify after a 12 week period. However there is no minimum work period defined in a week so even 1 day per week for 12 weeks would qualify, and if the temp returns within 6 weeks, then the previous period counts towards the 12 weeks too. During periods of sickness or certain other absences like jury duty, the 12 week period is simply ‘paused’ for that period.
2. Dont think you can get around the Regulations by just getting rid of temps after 11 weeks and then re-employing them 6 weeks later. The legislation contain anti-avoidance provisions which apply when the agency worker has completed two or more assignments  with the same company or with connected companies. A £5,000 additional Employment Tribunal award has been introduced for any company found to be in breach. Therefore you must ensure you do not inadvertently employ such temp workers on 3 occasions if your permanent staff have better terms than your temps.
3. This is all only an issue if you are giving your permanent staff greater rights than your temps in relation to basic terms and conditions (i.e. those that the temps would have received if you recruited them directly). These  basic working and employment conditions are: pay (plus any fee, bonus, commission, holiday pay or other payment directly referable to the employment), working hours, overtime, breaks, rest periods, holidays, and access to training and collective facilities such as childcare. You must ensure that your qualifying temps receive all such payments and entitlements.
4. After completing a 12 week qualifying period in a given job, pregnant agency workers will be allowed paid time off to attend antenatal medical appointments and antenatal classes. If they can no longer complete the duties of the original assignment for health and safety reasons related to their pregnancy, they must be found alternative sources of work. (If alternative work cannot be found, then the pregnant woman will have the right to be paid by the agency for the remaining expected duration of the original assignment).
5. Equality of treatment does not apply to all benefits however and such things as:  non-cash rewards, private medical insurance, private use of a company car, occupational sick pay, occupational pension schemes, season ticket or other loans, life assurance or health insurance provided by the company are all excluded. You do not therefore need to include these entitlements for your qualifying temps.
6. Remember when you are dealing with an Agency, you will need to ensure that they are aware of what needs to be paid to the qualifying temps in comparison to your permanent staff. You will therefore need to provide them with access to your terms and conditions and agree  the appropriate payments. You also need to negotiate terms with the agency; just because you may need to pay more to your temps does not mean the agency commission needs to increase too.
7. You need to make an assessment of your potential increase in costs, and decide whether there are other ways in which you could have the same flexibility in your workforce but in a more cost-effective manner. See the article on making your workforce more flexible here.

The new Regulations are complex and detailed guidance from the Department for Business Innovation and Skills can be found here.

(Article Reviewed February 2018)

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The provisions of the Bribery Act (2010) may well affect your business.

The Act provides for four bribery offences:

1. Bribing – the offering, promising or giving of an advantage.
2. Being bribed – requesting, agreeing to receive or accepting an advantage.
3. Bribing a foreign public official.
4. The “corporate offence” where a commercial organisation fails to prevent persons performing services on its behalf from committing bribery.

The “corporate offence” is one which employers must be aware of .  The company will be guilty of this offence if an employee who performs services on its behalf bribes another person, intending either to obtain /retain business for the company, or to obtain /retain some advantage in the the company’s business conduct.  If a company is prosecuted and found guilty of corporate bribery, the company (and its Directors) will be subject to significant fines under criminal law.

How can this be prevented?

The Act does contains a defence under which the company can minimise or escape liability for corporate bribery if it can show that it had in place “adequate procedures” designed to prevent those persons performing services on its behalf from committing bribery.

The Ministry of Justice Guidance outlines 6 key areas to rely on as defence:

1. Proportionate procedures - An organisation should put procedures in place proportionate to the bribery risks that are faced dependant on the nature of the organisation. The procedures should be clear, practical, accessible, effectively implemented and enforced.
2. Top level commitment - Top management  must be committed to preventing bribery through both their actions and effective communications.
3. Risk assessment - The organisation should regularly assess its exposure to potential external and internal risks of bribery.
4. Due diligence - There must be effective procedures in place that take a proportionate and risk based approach in respect of those involved in the organisation or carrying services out on behalf of the organisation.
5. Communication - The organisation’s policy on bribery must be communicated to all employees, and to all those carrying out services on it’s behalf. Additional training or awareness raising may be appropriate or proportionate depending on the size and type of your business
6. Monitoring and review – As the business changes over time, there should be an ongoing monitoring process of all bribery procedures and action taken to update these as appropriate.

Actions Required by your Company

Carry out a risk assessment of the chances of bribery occurring in your organisation. If this is minimal then a proportionate response would be that you do not need to put specific bribery prevention procedures in place.

If there is some risk, then you should ensure the following actions:

1. Allocate responsibility for anti-bribery activities to a Director / senior manager. This could be the head of finance (or nearest equivalent) who would also ensure that financial procedures were adequately reviewed.
2. Implement an appropriate policy which outlines expected standards of conduct in relation to bribery, and which clearly defines the behaviour as gross misconduct. An example policy here..
3. Amend your Contract of Employment to incorporate a paragraph referring to bribery and its implications as gross misconduct. Updated contract here..
4. Amend your Disciplinary Procedure to refer to bribery as an example of gross misconduct. Template policy here..
5. Ensure you have a Whistleblowing Policy in place. Template policy here..
6. Communicate and raise awareness of the company policy on bribery
7. Continually monitor the situation as your business grows and expands into new markets (especially those outside the UK). Review the risk and repeat / amend the above actions as necessary

The Ministry of Justice guidance can be found here..

(Article reviewed February 2018)

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In April 2003 the government introduced the ‘right to request flexible working’. This originally gave parents with a child aged under six (or parents of a disabled child under the age of eighteen) the right to request flexible working arrangements from their employer. This right to request was then extended to the carers of certain categories of adults (in April 2007) and to the parents of children aged under 17 (from April 2009).

From 30th June 2014 the Children and Families Act 2014 introduced further changes which means all employees now have a statutory right to ask their employer for a change to their contractual terms and conditions of employment to work flexibly provided they have worked for their employer for 26 weeks continuously at the date the application is made. An employee can only make one such statutory request in any 12 month period.

These changes relate only to the rights to request flexible working, however employers will still have the right to refuse any such requests on business grounds.

Furthermore the changes also remove the current statutory procedure for considering requests; instead employers will have a duty to consider all requests in a reasonable manner. The employer should therefore carefully consider the benefits of the flexible working request for the employee and the business and weigh these against any potential adverse business impact of implementing the changes. Remember, employers are under no statutory obligation to grant a request to work flexibly.

So the main elements of the revised regulations are:

• The right to request is extended to all employees (with 26 week eligibility period)
• Employers must deal with requests in a reasonable manner and within 3 months
• Employers have statutory duty to consider applications.
• Once the change is agreed it becomes a permanent change to the contract of employment.
• There is no right of appeal (but Acas recommends consideration of appeals as good practice)
• There is no automatic right of accompaniment (but Acas recommends consideration of allowing a companion)
• Only one application can be made in a 12 months period.

Acas have produced a Code of Practice and guidance on dealing with handling request to work flexibly which can be accessed here

We now have a free template procedure which meets the new ACAS guidelines for the 2014 changes. You can download this here and use it with minimal customisation for your business.

Here are a couple of articles which might be of interest if you need to consider granting a flexible working request, or even if you are looking for ways to make your workforce more flexible:

1. Do I need to allow a request for flexible working?
2. 13 suggestions to create a more flexible workforce

(Article reviewed January 2018)

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