February 2015 Personnel News

Holiday Pay – A Summary

There are lots of changes in 2014 – so here is a summary:

  • Overtime should be considered when calculating a worker’s holiday pay entitlement but there is currently no case law that suggests voluntary overtime needs to be taken into account. The same principle applies to part timers regularly working additional hours.
  • Average Commission should be included in holiday pay.
  • A worker’s entitlement to holiday pay will continue to accrue during sick leave.
  • Workers must take their paid annual leave, they should not be paid in lieu.
  • We know the minimum holiday entitlement for a 5 days week worker is 28 days including bank holiday. Sometimes employees don’t take all their leave for circumstances beyond their control. In these cases the leave should be carried over and taken asap. It shouldn’t really be paid for as the whole idea of the holidays is for health and safety purposes to ensure employees have a minimum period of rest.

Christmas 2015

Sorry if it’s a bit depressing to think that far ahead but BOXING DAY 2015 falls on a Saturday. The Government have already picked Monday the 28th as the substitute bank holiday so how does it work?

  • The 26th December is the bank holiday for staff who work a Saturday—so for your Saturday workers that is their boxing day AND Monday the 28th is a normal day.
  • I assume most businesses will close on the Monday so you need to advise staff who work a Saturday that they will need to save a days holiday for the 28th.
  • For staff who don’t work the Saturday then the Monday (28th December) is their Boxing Day bank holiday.
  • This will cause discussion but staff can’t have 2 boxing days!
  • The same principle will apply on the 2nd January which is a public holiday in Scotland.

Statutory Sick Pay/Statutory Maternity Pay

The rate of statutory adoption pay, statutory maternity pay, statutory paternity pay, statutory shared parental pay and maternity allowance will increase from £138.18 to £139.58 in April 2015.

The standard rate of statutory sick pay (SSP) will increase from £87.55 to £88.45 in April 2015.

The NMW

Sadly 37 more employers have been “named and shamed” and fined for not paying the NMW and the biggest single group were salon owners – i.e 7 of them.

Employment Tribunal Fees

Unison’s (the trade union) application to get the system, where applicants for Employment Tribunals are charged fees, reviewed has failed.

Since the introduction of fees the number of Employment Tribunal applications has fallen from around 40000 per quarter to 16,000.

Verbal Notice

An employee’s notice doesn’t have to be in writing it can be given verbally. My advice to avoid any doubt, is to write and confirm you accept the notice given verbally on the date.

Confirming Eligibility-Shared Parental Leave

This comes into force on 1st April alongside Maternity leave.

When you receive notice from an employee that he or she intends to take shared parental leave, you can request a copy of the child’s birth certificate and the name and address of the employee’s partner’s employer. The employee must provide this within 14 days of the request (if the employer requests a copy of the birth certificate before the child has been born, the employee must provide this within 14 days of the birth).

In most cases, the employer should rely on the declarations provided by the employee and his or her partner that they meet the various eligibility requirements. Employers are not expected to check, for example, the earnings and employment history of their employee’s partner.

Employees will have double the amount of KIT days from April. However I am sure many more have alarm bells ringing. It is difficult enough to recruit good quality temporary staff currently but the prospect of recruiting someone for a block of e.g 10 weeks who then might not be required for the next 10 weeks isn’t an attractive one. I envisage the plans for sharing the leave made before the baby is born will regularly be the subject of change after the birth. In short it means that temporary contracts will have to be very carefully worded as we really won’t be sure how long they are for.

Agency Workers—Be Aware

An Employment Tribunal has awarded a temporary agency worker over £10,000 after she was not paid the same after 12 weeks as she would have been had she been a permanent member of staff.

Restrictive Covenants-An update

A recent case reminds us that it is essential that restrictive covenants are drafted carefully enough to make it likely they will be upheld by the courts. There are a number of key points which employers should consider.

  • Non-solicitation covenants generally prevent former employees from soliciting the customers and employees of their previous employer. In the absence of such covenants there will be nothing to prevent an ex-employee enticing customers or employees away from a former employer.
  • Non-compete clauses are used to prevent a former employee from working for a competitor or starting up a business in competition with a former employer. These are the most onerous covenants of all and therefore the least likely to be enforced by the courts.
  • Restrictive covenants will only be enforceable if the employer can show they go no further than is reasonably necessary to protect a legitimate business interest. Employers should, for example:
    • limit the scope of non-solicitation and non-dealing covenants to those customers the employee has had dealings with
    • limit the duration of the covenant
    • imit the geographical scope of any non-compete clauses to a reasonable distance, unless special circumstances apply.

Beauty Consultant – Not an Employee

The issue on appeal was whether Ms H, who provided her services for a retailer at Heathrow airport was an employee. She sought to establish that she was an employee. To make a claim of discrimination. WDF provided retail space where the beauty products were sold.

The Tribunal concluded she was not an employee. The issue was one of fact and there was insufficient evidence of a ‘contract personally to do work’, There was a right of substitution and a lack of control over the way in which Ms H carried out her job.

Tier 1 visas

The Tier 1 visa aimed at highly skilled workers closed in December 2010 and new applications from within the UK closed in April 2011. Individuals who are living and working in the UK under an existing Tier 1 (General) visa have continued to be able to extend their stay. From 6 April 2015, individuals will no longer be able to apply for an extension of their Tier 1 (General) visa. Their existing visa will continue to give them the right to live and work in the UK, but on its expiry, the individual will have to look for another route to remain in the UK. Individuals in the UK under a Tier 1 (General) visa may apply for indefinite leave to remain.