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March 2020 newsletter

In this months edition...
The time has come, this is our final newsletter, which over the years has hopefully given you an overview of all the key topics in the world of HR.  Thank you to all of our loyal clients many who have worked with us for many years, at times it's been interesting, but you have always appreciated the support we have given you.  For those that are moving across to Shelley, you are in safe hands.  It has been a pleasure to you support you with your HR needs and we would like to wish you all the very best for your future.

What's on the horizon
NMW Rates for April 2020 announced
New Employment Legislation (April 2020)
Day One right for an Employment Contract
Recent cases

Child protection
Age discrimination
HR good practice

Spring clean
Abbreviations used in this issue:
ET - Employment Tribunal;
GDPR - General Data Protection Regulations;
HRA - Human Rights Act 1998
Updates to member's toolkit
The following changes come into force in April 2020.

National Living Wage rises
Age Rate from 1 April 2019 Rate from April 2020
Workers aged 25 and over (NLW)  £8.21 ph £8.72 ph
Workers aged 21 and over £7.70 ph £8.20 ph
Development rate for workers aged 18-20 £6.15 ph £6.45 ph
Young workers rate for workers aged 16-17 £4.35 ph £4.55 ph
Apprentices under 19, or over 19 and in the first year of the apprenticeship £3.90 ph £4.15 ph

The government has published the proposed statutory rates for maternity pay, paternity pay, shared parental pay, adoption pay and sick pay from April 2020. The rate of statutory sick pay is proposed to increase from £94.25 to £95.85 on 6 April 2020. The rate of statutory maternity pay, paternity pay, shared parental pay, adoption pay is expected to rise to £151.20 from April 2020. (2019 Rate is £148.68)  The increase normally occurs on the first Sunday in April, which in 2020 is 5 April.

Increase in holiday reference period from 12 weeks to 52 weeks: the proposal is to increase the reference period used for determining a week's pay when calculating holiday pay for workers with irregular hours from 12 weeks to 52 weeks, which is seen to be a fairer time period to use

Extension of the right to a written statement of employment particulars to all workers:  
Written statement will be a day one right for all workers. Employers will also have to provide additional information as mandatory content for a written statement

Parental bereavement leave rights take effect: Provides for at least two weeks' leave for employees following the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy. Employees with 26 weeks' continuous service will be entitled to paid leave at the statutory rate and other employees will be entitled to unpaid leave

In April 2020, the IR35 Regulations will begin to take effect to medium and large companies in the private sector that contract with personal service companies for the provision of services. This has the effect that these companies will have to account for tax and national insurance through PAYE in the same way as the public sector has been required to do since April 2017. (See November Newsletter for more Information)


Child protection
In this case the employee was fairly dismissed for failing to disclose a child protection issue in their personal life

Q v Secretary of State for Justice

The Claimant was employed in the Probation Service. Her daughter was placed on a child protection register, in circumstances where the Social Services considered (though she vehemently denied the allegation) that she was violent towards her daughter and therefore presented a risk to her daughter. The daughter was placed on the Child Protection Register. The Claimant did not notify her employer of the incident, despite the safeguarding implications for her job. As the Claimant did not raise this, Social Services raised it directly with the Probation Service. Following disciplinary proceedings, the Claimant was found to have committed gross misconduct by failing to keep her employer informed, and was given a final written warning.

In 2015, the Claimant informed her senior manager that her daughter was no longer on the Child Protection Register and that she was no longer subject to a Child Protection Plan. However, a later altercation led to her daughter being placed back on a Child Protection Plan. The Claimant again failed to inform her senior manager of this. Upon the senior manager becoming aware of this, further disciplinary proceedings were initiated, leading to the Claimant's dismissal. This was due to the reputational issues the Claimant's conduct rose for the Respondent.

The Claimant brought a claim for unfair dismissal, which was rejected by the ET which stated that the dismissal was reasonable, given that a previous final written warning had been issued in almost identical circumstances. The ET referred to the fact that the Probation Service is part of the criminal justice system and so has higher expectations of its employees’ conduct than other employers. The ET noted that Article 8 of the HRA 'the right to private life', had been engaged. However, it was held that the dismissal was proportionate with that right as the information of the Claimant's private life was capable of bringing the Probation Service into disrepute and could undermine public confidence in it. 

The Claimant appealed. In this case the Claimant’s appeal failed, because the degree of interference in the Claimant’s private life (what information the employer sought) was specific, concerning the Claimant’s own personal involvement with Social Services. The Claimant had previously been given a warning, and demoted, for a similar matter. Given the nature of the Probation Services’ work and their statutory relationship with Social Services, the employer’s actions could be justified in this case.

Top Tips
  • The decision provides a fresh look at the extent to which a public sector employee’s private life can be a matter of concern for their employer, and when a dismissal can be justified when an employee refuses to divulge such information
  • Ensure staff are fully aware of their obligations to disclose information which may be relevant to protecting the employer, and the consequences of not doing so. 
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Age discrimination

A professor forced to quit before his 70th birthday has won a landmark age discrimination battle against Oxford University. 

Prof Ewart V Oxford University 

Oxford University introduced its employer justified retirement age policy (EJRA) in 2011 in a bid to bring younger and more diverse staff into the university. The policy means staff at senior grades must retire in the September before they turn 68, with the organisation increasing the age threshold from 67 in 2017. Such compulsory retirement policies have been abandoned by every Russell Group university other than Oxford and Cambridge.

Prof Ewart, who was head of atomic and laser physics at Oxford’s Clarendon Laboratory, was dismissed in September 2017 under the university’s application of its EJRA policy.

The policy was described as 'highly discriminatory' by the judge and the ET condemned the policy stating 'There can hardly be a greater discriminatory effect in the employment field than being dismissed simply because you hold a particular protected characteristic'.  Professor Ewart, who worked at Oxford for 38 years until being pushed out in September 2017, gathered statistical evidence, which he claimed showed that the retirement policy would only create a small number of vacancies for younger people and therefore argued that the retirement policy had failed to deliver its promised benefits to open up a range of vacancies. The ET agreed with Prof Ewart that the university had failed to justify its policy stating 'If a heavily discriminatory measure results in the creation of only 2 to 4 per cent more vacancies than would otherwise arise, we do not see how that can be proportionate'. The ET concluded that Prof Ewart had been 'discriminated against unlawfully on grounds of his age'.

However, Oxford University had won a similar case earlier last year and is considering appealing the decision.

Top Tips
  • It is lawful for an employer to have a policy that imposes a compulsory retirement age provided that such policy forms part of a considered justified retirement age that is a ‘proportionate means of achieving a legitimate aim’
  • Employers can’t simply rely on their own reasons for imposing a retirement age – courts have accepted, for example, that workforce planning, protecting against incompetence, promoting inter-generational fairness and avoiding an adverse impact on pensions and benefits are all capable of amounting to a legitimate reason.

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Spring cleaning

This month, with Spring around the corner (as I look out at another gloomy day with another storm on it's way, I have to convince myself that Spring is around the corner!), we look at the thorny issue of a HR Spring Clean!  In May, it will be two years since the introduction of GDPR which covers the safe and appropriate handling of information.

Contracts of Employment
It is important to regularly review your contracts to ensure that they are up to date and correctly reflect your business needs. From April, contracts will need to be issued by day 1. On top of the current information required in the Statement, the following additional information needs to be included in Statements from 6 April 2020:
  • The days of the week that they are required to work and whether the days are variable and, if so, how they vary
  • Any paid leave entitlement which is additional to annual leave and holiday pay (such as maternity and paternity leave) 
  • Details of all remuneration and benefits
  • Any probationary period, including any conditions and its duration
  • Any training entitlement provided by the employer (including whether any training is mandatory and/or must be paid for by the worker.
Going forward from April 2020 the Statement can only refer to another 'reasonably accessible' place, for example, the employer's intranet or Handbook or requested from HR, where terms relating to the following can be found:
  • Incapacity and sick pay
  • Additional Paid Leave
  • Pensions/pension schemes
  • Certain information about disciplinary and grievance procedures
  • Any other training entitlements.
The Statement can only refer to the law or to a collective agreement in relation to terms on notice periods, but it is not permissible to refer to any other accessible document for this information.

From 6 April 2020, most of the terms in the Statement need to be given on day one or before. There are still some exceptions to this though and the following information can be given in a later instalment in a supplemental statement as long as it is given within 2 months of the job starting:
  • Pensions/pension schemes
  • Certain information about disciplinary and grievance procedures
  • Training entitlements (other than terms relating to Mandatory Training)
For senior staff (or where staff have moved around the business where contracts are not always amended, but terms do change), it is recommended that you check contract clauses relating to: 
  • Holiday allowance and pay (often increases with seniority)
  • Sickness allowance and pay (often company sick pay comes into play)
  • Any contractual bonus payments (which often apply to senior staff)
  • Any additional contractual responsibilities of the employee for example confidentiality, intellectual property
  • Restrictive covenants.
Staff Handbook
It is important to ensure that your Staff Handbook is legally up to date and that all of your policies correctly reflect the culture and aims of the business as well as legislation changes. Some key areas worth reviewing are:
  • Family friendly policies (maternity, adoption, shared parental, etc)
  • Disciplinary and grievance procedures (ensuring they meet your standards)
  • Technology policies, particularly ensuring fast moving areas such as social media, are up-to-date
  • These are key policies for employers, and should be checked periodically to ensure that they fit the business needs
Training records
Staff training records are often first to fall to the bottom of the priority list, but they are invaluable to demonstrate someone has the core skills to do their job and bottom line can be your defence in a tribunal to demonstrate someone was shown how to act appropriately. Ensure your training records are up-to-date and record all the training that has occured. Whilst reviewing the training records, make a plan of who needs refresher or new training to keep their skills up-to-date which will formulate a training plan for the year.

HR files
HR Spring Clean your files and paperwork such as annual leave request forms, medical certificates, expired disciplinary warnings, copies of an unsigned letter when you have the signed version, etc.  Consider moving them all on to an online platform. Not only is everything you need accessible wherever and whenever you need it in one central location, but getting rid of all that paperwork is likely to bring organisation back into the team. 
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This bulletin is for general information only.  It is not intended to constitute professional advice.  Though The Sevier Consultancy Group is confident of its accuracy, no duty of care is assumed to any recipient of the bulletin and no liability is accepted for any omission or inaccuracy.
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