What is REACH?
REACH is a new European Union regulation concerning the Registration, Evaluation, Authorisation and restriction of CHemicals. It came into force on 1st June 2007 and replaces a number of European Directives and Regulations with a single system.
Aims
REACH has several aims:
A major part of REACH is the requirement for manufacturers or importers of substances to register them with a central European Chemicals Agency (ECHA) A registration package will be supported by a standard set of data on that substance. The amount of data required is proportionate to the amount of substance manufactured or supplied.
If you do not register your substances, then the data on them will not be available and as a result, you will no longer be able to manufacture or supply them legally, i.e. no data, no market!
For information please visit www.hse.gov.uk/reach
Rendundancy as an option
In recent months employers in certain sectors, have had to consider making large cutbacks. Making employees redundant is frequently on the agenda – it is always within the top three calls to Croner help lines - but this has its own risks and may not be the answer to your problems.
Employers unused to HR practices may end up carrying out redundancies which are potentially unfair, resulting in unfair dismissal claims being brought by employees. And it doesn’t end there.
Employers may be at further risk of successful claims of discrimination and protective awards made by the Employment Tribunal.
A protective award can be made where an employer proposes to dismiss as redundant 20 or more employees within a period of 90 days or less and the employer fails to follow the statutory procedures set out in s.188 Trade Union and Labour Relations (Consolidation) Act 1992.
This involves a protracted consultation period of 30 days or 90 days (depending on the numbers of redundancies1) with elected employee representatives or trade union representatives. For the uninitiated this is a complex procedure. If there are procedural flaws, or the consultation with the representatives is inadequate, the protective award made at the Employment Tribunal for the failure is 90 days gross pay maximum for each affected employee. This can obviously mount up to be quite a large sum of money. Other awards to bear in mind are compensation for unfair dismissal and discrimination claims.
Recent average awards for these have been around £8,000 and £10-£15,000 respectively. On top of these high awards you also have to factor in the time spent on and the costs of litigation. It really is worth taking professional advice so that you know how to follow a recognised redundancy procedure which fits in with your particular set of circumstances. There is no doubt that many employers are getting caught out by these procedures. Newly released figures by the UK Tribunals Service highlights a 42% rise in claims over the last twelve months.
Although some of these claims can be attributed to multiple equal pay claims being heard by the tribunals, there is a definite increase in the numbers of claims made over redundancy issues. Croner has seen a 50% rise in the claims it handles on behalf of employers in the last three months alone. Even if you only want to make a few employees redundant you still have to follow the correct procedures. It is a common misunderstanding that a redundancy is not a dismissal, perhaps because ‘being made redundant’ does not sound as harsh
as ‘being dismissed’. Redundancy is a potentially fair reason for dismissal. You have to have a genuine redundancy situation which fits with the statutory definition set out in s139 Employment Rights Act 1996.
To summarise, there has to be a diminution, a cessation of work, or relocation. In other words, is the work dropping off? Do you need fewer employees to do the work? If you need to select a few employees from a large department you will need to be able to demonstrate the criteria by which you have arrived at your selection. This might include quality of work, time keeping, experience, qualifications and performance. Employers must demonstrate that the true reason for dismissal is that the post, not the person, is no longer required. You must consult individually with the affected employees and be clear as to how you have reached your conclusions. Refer to your appraisal records to ensure that your assessment mirrors earlier evaluations. If there are opportunities to offer alternative work, you should bring all potential vacancies to the employees’ attention. These stages (including early warning, collective consultation, or talking to employee representatives, the selection process and individual meetings) can take several weeks, if not months depending on the numbers affected, so patience and procedure are the keys!
1. Where you are proposing to dismiss 20 or more employees within a period of 90 days or less you need a minimum of a 30 day consultation period. If you are proposing to dismiss 100 or more employees the minimum consultation period is 90 days.
2. Employment Tribunals Service Annual Statistics 2006-7 www.employmenttribunals.gov.uk
3. Tribunals Service Annual Report 2007-8, www.tribunals.gov.uk
Statutory redundancy pay increases
The limit on a week’s pay, used in the calculation of statutory redundancy pay, increases from £330 to £350 on 1 February 2009 in Great Britain, (15 February in Northern Ireland). On the same date
the maximum compensatory award for unfair dismissal increases to £66,200 and the new limit for guarantee payments increases to £21.50 per day for employees who are in a lay-off situation.
Statutory holiday increases.
Over the past couple of years we have seen the statutory minimum holiday entitlement increase from four weeks’ paid holiday (20 days for someone on a five-day-week) to 4.8 weeks (24 days for a five day- a- week worker) on 1 October 2007 and now the last increase to 5.6 weeks (i.e. 24 days going up to 28 days) will be on 1 April 2009. The statutory leave will be capped at 28 days. Bank holidays can be used to go towards the statutory minimum holiday entitlement if the workers are given paid time off work for the day. Employers relying on bank/public holidays to go towards the minimum entitlement of 28 days' leave need to ensure that, if a worker works over a bank holiday, he or she, has a paid day off at another time.
The additional leave resulting from the recent increases (ie four days at present rising to eight days from 1 April 2009) can be carried over from one year to the next if it is agreed in writing between the employer and worker in a legally enforceable agreement, such as a contract of employment or staff handbook. Under transitional arrangements, employers may pay in lieu for the current four days of leave up to 31 March 2009, but after that date there will be no right to pay in lieu of holiday except on the termination of employment.
Flexible working for more parents!
Legislation currently going through Parliament will give employed parents of children up to the age of 16 the right to apply for flexible working to care for a child. The right is currently restricted to parents of children under six. The expected implementation date is 6 April 2009 and will mean that an extra 4.5 million parents in Britain could ask for flexible working.
Six million employees already have the right to request flexible working, including parents of disabled children up to the age of 18. Carers also
have the right, if they are caring for a spouse, civil partner, relative or someone living at the same address.
The most popular request for parents of children under six has been for part-time working, followed by job shares and flexi-time.
Employers can refuse requests for flexible working, but they must give good evidence for their reasons for refusal and use one or more of the following statutory reasons:
- burden of additional costs
- detrimental effect on ability to meet customer demand
- inability to reorganise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- insufficiency of work during the periods the employee proposes to work
- planned structural changes.
In reality 90% of employers do agree to the requests, although some employers may agree because of fears of discrimination claims. Refusing flexible working requests can lead to allegations of discrimination, usually on the grounds of sex, if there is less favourable treatment. Recently, in the case of Coleman v Attridge Law, the European Court of Justice held that a carer could argue disability
discrimination by association over the refusal of flexible working for the care of a disabled child.
Under the new law, more parents could ask for their work pattern to be altered to be at home after school hours, including those parents whose children need to settle into secondary school and those who
have teenage children requiring extra supervision because of homework, exams or behavioural issues. Information from the Department for Business, Enterprise and Regulatory Reform suggests that the costs of dealing with the requests and adjusting the working arrangements are small compared to the savings in terms of recruitment costs, lower staff turnover and absenteeism. Certainly, if the most common request for flexible working continues to be a request for reduced hours, many employers will agree in these recession-hit times.
Probationary Periods
If you are about to make someone a job offer, should you include a probationary period in the contract of employment?
Employers often include a probationary period in a contract of employment, with the aim of seeing how the employee does in the job. Although probationary periods have been used for many years, they offer the employer little legal protection today because of the way employment law has developed. The probationary period will indicate to the employee that he or she is to be monitored and there may also be an expectation of extra training and supervision to learn the job. A probationary period can also be used to offer reduced terms and conditions, such as limited benefits and a shorter notice period during the trial. However, a probationary period may not enable an employer to dismiss more easily because the statutory protection such as discrimination and unfair dismissal still applies during the probationary period.
Of course, in many situations, unfair dismissal cannot be claimed by an employee with under a year’s service, but there are still several instances where unfair dismissal can be claimed without that length of service. Common claims are for asserting the employee’s statutory rights under the Employment Rights Act 1996 or under the Working Time Regulations. On the other hand, it may be slightly easier to face dealing with the dismissal of an employee either during, or at the end of, the probationary period than at other times, because the employee knows that he or she is “on trial”.
If you need further information on any of the matters please contact our helpline partner, Croner Consulting on 08445 618133 and quote our scheme number form your membership card.
Facing up to social media
With the growth of Social media, like Facebook, it is of serious concern to businesses who are very aware that the use of social media by their staff can impact on work time. There are also other issues to be considered.
Some employees are spending excessive amounts of time during their working hours accessing social networking sites. In a study by MyJobGroup.co.uk last year 6% of workers admitted to spending more than an hour of work time every day on social media sites. This can be costly for employers in terms of productivity and could potentially amount to a disciplinary offence.
Reputation management
Approximately 8% of the UK work force keeps a blog and 39% of those admit to writing about their workplace, a colleague or their employer. These postings can be read by anyone, anywhere in the world and because of the way postings are archived, they may be accessible on the web for quite some time afterwards.
There have also been occasions where employees have formed a group on a social networking site to discuss work-related issues. This is an issue which British Airways encountered in 2008 when a number
of their ground staff joined together to criticise passengers and the opening of Terminal 5. Employers need to ensure that employees are aware that should they have any concerns, they can raise these through the organisation’s grievance procedure and that social networking sites are not appropriate forums to voice such concerns.
Bullying and harassment issues
Another common problem is where one employee writes negative posts about another employee or the employer’s business which results in allegations of bullying or perceived damage to the employer’s business or its reputation. However, in the majority of cases, posts are left by employees outside of working hours and are only viewable by their group of friends.
This can make it difficult for an employer to take disciplinary action against the employee. A number of high profile businesses have dismissed employees for leaving inappropriate comments on Internet sites which has resulted in a finding of unfair dismissal by the tribunal. Employers need to show that they have acted fairly and reasonably and that any decision to dismiss was not simply a knee-jerk reaction.
Employers are entitled to address such issues through informal discussions with the employee and can suggest that inappropriate posts be removed. However, enforcing this could prove difficult.
Using social networking for business gains
Some businesses have decided to take steps to embrace social networking sites and use them as a useful business resource. Many small businesses use them to promote and generate interest in their business. However, this can create a number of legal issues that must be considered such as data protection issues and copyright infringement.
Similarly, it is possible that competitors may have access to commercially sensitive information such as client contact details.
Recruitment
Some employers are now using social networking sites as an opportunity to look up details on a job applicant. However, such informal vetting could expose employers to allegations of unfair selection and unlawful discrimination.
Additionally, such sites may give employers access to information that would normally be excluded from application forms in order to avoid allegations of discrimination.
Social media: practical protective measures
Employers can decide whether or not to impose a complete Internet ban for non work-related purposes or to restrict access to break times only.
In addition, employers should ensure that employees are aware of the possible consequences of their action through the publication of a clear policy stating:
- what is required of the employee
- that monitoring and/or recording may take place
- the consequences of breaching policy.
The employer may need to have a separate e-mail and Internet policy; they may also have a separate social networking policy.
Any e-mail and Internet policy should:
- make it clear that communications systems are provided to promote effective business communication
- set out the restrictions governing personal use the circumstances in which employees may or may not use the e-mail system and Internet access for personal communication
- make it clear that policies on sexual harassment and discrimination will apply to communications
- inform users that interceptions, monitoring and recording may take place
- give examples of reasons for interceptions, such as ensuring compliance, monitoring standards and preventing or detecting unauthorised use
- make it clear that interceptions will be used to counter legal action
- make it clear that passwords and terminals are not to be made available to unauthorised persons
- set out the penalties and disciplinary consequences of breaching policy
- emphasise that it also applies to home workers
- make clear to employees that any e-mail contact list stored on the organisation’s system is the property of the organisation, even if the employee has created and maintained that list.
Note that a simple ban on “offensive material” watched on or downloaded from the Internet may not be sufficiently clear. The employer may prefer to provide examples of the sort of material that is offensive.
Whatever the issue, social networking sites are here to stay and employers are advised to take a proactive stance in dealing with possible employment issues so as to avoid these situations.
If you have an issue that you need help with please call the HBSA “Croner” Help line on 08445 618133 and quote the scheme number.
Minimum Wage – effective 1st October 2011
The Government has announced that the National Minimum Wage rates will increase as follows:
• the adult rate will rise by 15p to £6.08 per hour
• the rate for 18 to 20–year–olds will rise by 6p to £4.98 per hour
• the rate for 16 to 17–year–olds will rise by 4p to £3.68 per hour
• the apprentices’ rate will rise by 10p to £2.60 per hour.
The accommodation offset rate will increase from £4.61 to £4.73 per day.
I’m late………. for a very important date!
New late filing and late payment penalty rules come into effect from 6 April 2011 for the Self Assessment (SA) returns for income and capital gains tax. These are generally a change to the existing rules rather that being a new initiative in UK tax law. The changes are an element of a wider programme of tax administration reform undertaken in recent years which seek a more streamlined and uniform approach across the full range of UK taxes.
New rules will eventually come into effect for all types of tax return as well as the SA returns. This will include PAYE, Construction Industry Scheme (CIS) and corporation tax returns. However, the implementation dates vary and are to be phased in over a number of years. For example, whilst this article considers SA returns only, new late return penalty rules also apply tp CIS returns from October 2011.
The first SA returns to be affected will be the 2010/11 personal, trust and partnership tax returns. These are the tax returns due on the 31 October 2011 if sent on paper and 31 January 2012 if filled online.
Late Returns
The rule that “a personal/trust filing penalty is either the lower of £100 or the balance of tax due,” has been replaced.
Instead, the initial new late filing penalty regime will include the following:
- £100 penalty immediately after the due date for filing (whether or not the tax has been paid)
- daily penalties of £10 per day for returns that are more than three months late, running for a maximum of 90 days
- after six months the penalty will be the greater of £300 or 5% of the tax shown on the return
- after 12 months the penalty will again generally be the greater of £300 or 5% of the liability.
Significantly higher penalties can apply if the failure after 12 months is deemed to be deliberate. This can range up to 100% although reductions are often negotiable. However, it is clearly better t avoid being in this position by filing continuing to file on time.
Late Payments
The new penalties (formerly referred to as surcharges) for late payment of tax on the SA returns are very similar to the old rules and will consist of:
- a penalty of 5% of the amount of tax still unpaid 30 days after the payment due date of 31 January and
- further penalties of 5% of any amounts still unpaid at six months and 12 months after the due date.
A suspension of late payment penalties may be arranged where the taxpayer agrees a time to pay arrangement (where a tax debt is paid over time) with HMRC, so difficulties in meeting payments are anticipated it may be advisable to consider this route to prevent penalties from escalating.
In addition to the above – new late payment penalties for PAYE have been in force since 6 April 2010 and whilst these are not considered further here please do contact HMRC if this or any other penalty matter concerns you.
