INCREASE IN QUALIFYING TIME FOR UNFAIR DISMISSAL!

The Government has announced a proposal to increase the length of time that employees need to be employed before they can place a claim for unfair dismissal.

Currently, employees can’t place a claim for unfair dismissal unless they have been employed for more than 1 year. This means that businesses have a period of 1 year in which they can assess a new employee’s suitability for a role and safely dismiss without fear of a costly compensation bill.

A consultation has been launched today, which will close on 20th April 2011. Following this, the government is expected to confirm the increase.

The aim of this measure is to give businesses more flexibility and cut the red tape holding back businesses throughout the UK.

This will be welcome news to business groups, which have campaigned for a reduction in red tape and legislation. Business groups have cited the upsurge in tribunal claims as evidence that the current system is heavily weighted in favour of employees, with the result that businesses are often crippled by costly legal fees and compensation bills.

However, there is doubt about whether the measure goes far enough. Is this enough to encourage businesses to hire more staff, and will it really help employers? Leading employment law and HR firm Empire HR are urging businesses to exercise caution.

Unfortunately for businesses, there is an exception to the qualifying period rule. There’s no qualifying period if the employee can establish that they were dismissed for a reason linked to a ‘protected characteristic’. Defined by the Equality Act 2010, protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The Equality Act also covers 7 different types of discrimination. For example, the Act introduced ‘associative discrimination’ to many protected characteristics meaning that some people will be covered by the legislation merely because they are related to, or associate with some who has a protected characteristic.

The effect of the legislation is that it might actually be very difficult to single out an employee who is not covered by the Equality Act, so employers need to tread extremely carefully when dismissing any employee – regardless of their length of service. In effect, increasing the qualifying period may not be as helpful to businesses as they thought.

Empire HR are concerned that businesses are being lulled into a false sense of security. Steve Cook, CEO of Empire HR explains “the media is full of headlines stating that businesses can dismiss employees for any reason during the first 2 years of their employment. However, any dismissal carries the risk of a claim and in reality, the Equality Act means almost any employee can place a claim regardless of their length of service. Businesses might get some nasty surprises if they fail to get expert advice”.

There’s also speculation that this change might actually lead to an increase in claims. Employees dismissed within the 2 year period are more likely to cite discrimination as the reason for their dismissal because they will otherwise be unable to place a claim at all. Discrimination claims tend to be the most costly – largely because compensation in these claims is uncapped. They are also notoriously time consuming to defend.

Steve Cook confirms “there’s a real prospect of an upsurge in discrimination claims because employees will effectively be clutching at straws so they can place a claim. The discrimination legislation is now so wide in scope that most employees will be able to claim because they have at least 1 protected characteristic”.

Despite these points, it is positive that the government appears to be focusing on the needs of businesses during these tough times. Businesses will welcome any measure designed to ease their burden, and small businesses in particular are likely to see this change as very encouraging.

The consultation also deliberates the introduction of tribunal fees, and measures to deter vexatious claims. The full consultation document can be found here: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/11-511-resolving-workplace-disputes-consultation . Business owners are urged to contribute to the consultation. In the meantime, Empire HR is advising business owners and managers to seek advice prior to the dismissal of any employee. As Steve Cook points out “making a mistake is just too costly in this economic climate”. Empire HR are providing expert guidance on dismissals on their website, and have added a recorded guide to the dismissal procedure. Please visit www.empirehr.com for further information.

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Baby boom in the Empire

There appears to have been something in the water at an Aberdeen employment law and HR firm with four staff pregnancies in the last year alone.

Empire HR, which has 22 employees, has had four members of their consultancy team on maternity leave following the bumper year of bumps.

Three of the women, Joanna Jacob, Faye Barron and Morag Rose, work at the company’s headquarters in Aberdeen as part of the advice line team, while Maureen McKay, is a home worker. Three are still on maternity leave, which has led to some temporary team changes at the small business but as experts in this field, Empire HR had a strong maternity policy in place to help cope with the arising issues.

Many companies, however, are not prepared to deal effectively with maternity in the workplace and it is often wrongly viewed as a burden to employers, as it can be a costly exercise for small businesses.

Empire HR CEO, Steve Cook, said: “We are delighted with the new healthy additions and having a good understanding of our maternity policy has certainly been very useful this year. “On a serious note, there is bound to be a loss for any organisation but it’s difficult to measure. We had to go through the recruitment process four times and there is a very tangible cost to that. Our clients have been extremely understanding and each new member of staff has undergone intensive training on arrival and it’s been a steep learning curve. “We have a great team of people who have worked together to cover for the maternity posts, and we have worked hard to ensure that the new mums are still part of the Empire family by encouraging them to write about their maternity leave experience on the company blog.

“Empire HR has seen continued growth and it’s important that we have a great team that can re-shape to accommodate issues such as maternity leave.” Employers are usually faced with a number of concerns when a member of staff announces they are expecting, such as losing a key member of a team, having to find a temporary replacement and, of course, the additional costs.

It’s a worrying time for any organisation but it can naturally have a greater impact on smaller businesses like Empire HR. However, the employment law firm claims that if clear guidelines are in place the whole process of the pregnancy, maternity leave and return to work should be stress free for all concerned.

In Empire HR’s case, a genuine interest in the welfare of the new mums and securing good quality maternity cover has played a huge role in coping with the maternity issues which arose this year.

The Empire team were hugely supportive of the mums-to-be and worked together to ensure their workload was manageable during busy times. Necessary risk assessments were also carried out in the work place for the expectant mums, they were given parking spaces closer to the door, they were encouraged to take more rest breaks and were allocated desks near a window if they required fresh air.

The pregnant workers were encouraged to participate in ‘keeping in touch days’ to ensure they were not completely isolated from the workplace and that they still felt part of the Empire team. Faye Barron said: “We were so lucky that the team were really supportive. I almost felt isolated from work so the ‘keeping in touch’ days really helped. I think it can be easy for employees to be forgotten once they have left on maternity leave due to busy workloads but we were all invited to training days, office outings and team meetings, so we still felt very much part of the team during our leave.”

To keep employers up-to-date – here is a rundown of the current Maternity Rights:

• When an employee tells an employer that she is pregnant, the employer has a duty to carry out a health and safety risk assessment in order to determine whether there are any specific risks to her or her unborn child.

• Employees are entitled to paid time off to attend ante-natal appointments.

• Employees are entitled to 52 weeks maternity leave. Employees are required to notify their employer in writing of their intention to take maternity leave by the 15th week before their due date.

• If an employee is absent due to a pregnancy related sickness during the four weeks prior to their due date, maternity leave will start automatically.

• Employees are not allowed to return to work until at least two weeks after they have given birth (four weeks in certain cases).

• Employees are entitled to 39 weeks Statutory Maternity Pay if they fulfill certain qualifying conditions. For the first 6

weeks this is paid at 90% of their normal pay. For the next 33 weeks, this is paid at either 90% of their normal pay or the rate set by the Government, whichever is lower. The current rate set by the Government is £124.88.

• To qualify for Statutory Maternity Pay an employee must have been employed for at least 26 weeks before the 15th week before their due date. They must also earn more than the National Insurance Lower Earnings Level during a qualifying period.

• Employees who do not qualify for Statutory Maternity Pay may be entitled to receive Maternity Allowance which is paid by the Government.

• Employees continue to accrue all contractual benefits (apart from remuneration) throughout their maternity leave. This includes annual leave.

• During maternity leave, employees are entitled to agree with their employer to work for up to 10 days, without this affecting their Statutory Maternity Pay. These are called ‘Keeping in Touch Days’.

• Employees are normally entitled to return to the job they left on their return to work.

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Royal Public Holiday - Are your staff entitled to the day off?

The world is currently fascinated with next year’s Royal wedding of Prince William and Kate Middleton and Westminster and Holyrood governments have both declared that the big day planned for 29th April next year will be a national celebration and marked with a public holiday.

The announcements by Prime Minister David Cameron and First Minister Alex Salmond, means there will be two consecutive bank holiday weekends resulting in millions of employees working a three-day week. This substantial loss of working time will be costly for every business but it may prove to be particularly disruptive in the current economic climate when businesses are facing tougher times.

Mr Cameron and Mr Salmond’s declaration of an additional public holiday in 2011, may have given UK workers the impression that they are entitled to the day off to join in the Royal celebrations with the rest of the nation, however this is not the case.

Leading Aberdeen-based HR and employment law firm, Empire HR, is encouraging businesses to think ahead about how they wish to approach the forthcoming celebration in the workplace as it is not compulsory to shut up shop.

According to Empire HR, a national day will not automatically mean an extra days holiday. Companies do not have to honour the new holiday and employees should refer to their contract of employment to check their holiday entitlement. However, since the wedding will be an historic and momentous occasion, it may be mean spirited if a company doesn’t join in with the celebration and honour the public holiday.

A similar situation arose with the extra public holiday granted for the millennium. At the time a tribunal case considered contractual rights to holiday entitlement and ruled that unless it was clearly stated in the contract of employment, the employee would not be granted an additional day’s pay.

CEO of Empire HR, Steve Cook, is urging managers to examine the company approach to public holidays. He said; “Many contracts of employment state an employee is entitled to a fixed number of public holidays. Anyone who has a fixed number of public holidays written into their contract will not be entitled to the additional day off. As a result, anyone wishing to take the day off would have to book the day in accordance with their company annual leave policy. “Only employees whose contracts state the employee is entitled to all public holidays would be entitled to the extra day off. Of course it would be open to generous employers to give all employees an additional day off regardless of their contract terms.”

Empire HR provide commercially focused employment law and HR support service including a telephone advice line, HR Consultancy, employment tribunal insurance and health & safety support for businesses across Scotland. Empire HR can assist businesses on all aspects of holiday entitlement. For further information, please contact Empire HR on 01224 701383



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Proposal to Increase Unfair Dismissal Qualifying Period to two years

At the moment the Government is actively considering an increase in the qualifying period for unfair dismissal from one year to two years.

The timetable for decision is yet to be announced and it is very likely that there will be a consultation period (about this and other employment law issues) first.


If the change in the qualifying period occurs, it will be moderately good news for employers but bad news for employees. In theory this would mean that employers would have an extra year to dismiss an employee unreasonably. But the employer could still face allegations of discrimenation or unfair dismissal claims where no qualifying period is required. This would include things such as whistle blowing and certain health & safety, maternity and trade union related dismissals. With these claims tending to be more expensive to defend than 'ordinary' unfair dismissal claims, it is unclear whether employers will find this proposal an entirely favourable change.

Minimum Wage Reminder

At the beginning of October the rates of minimum wage in the UK increased.

The table below shows the up-to-date changes.

Rate	From 1 October 2010	From 1 October 2009
Workers aged 22 and over (minimum hourly rate)	£5.93	£5.80
Workers aged 18-21 and those aged 22 and over doing accredited training in the first six months of employment (minimum hourly rate)	£4.92	£4.83
Workers aged 16 and 17 (minimum hourly rate)	£3.64	£3.57
Apprentices under 19 or in the first year of apprenticeship (otherwise refer to age bands)	£2.50
Accommodation off-set (maximum deduction per day from NMW where employer provides accommodation)	£4.61	£4.51
Agricultural apprentices in England and Wales (first 12 months)	TBC	£3.57
Agricultural apprentices in Scotland (first 12 months)	TBC	£3.50

Adverse Weather Conditions

Empire HR has been inundated with requests for help from businesses throughout the North East following the recent winter weather.

The leading employment law and HR company has seen enquires relating to the poor weather soar, with many businesses finding that it difficult to cope in the face of worsening conditions.

Steve Cook, CEO of Empire HR explains: “The winter weather has caused serious problems for businesses throughout the UK this month, largely caused by the difficulties experienced by commuters. Coupled with school closures, the weather has led to absence levels soaring. Hopefully, we are over the worst, but it is worrying that the weather continues to cause such disruption to businesses during these difficult economic times.”

As the poor weather continues, how can businesses ensure they are able to cope during periods of extreme weather?

Although it may be impossible to avoid the entire impact of severe weather, it’s likely that taking a few simple steps could make a real difference. Therefore, the Empire HR team has been advising businesses on steps they can take to reduce disruption and how to deal with staff absences caused by the weather.

• Identifying key roles within the business means you can anticipate which roles absolutely must be covered if the weather is so severe that the person who normally carries out the role is unable to get to the office. This will lead on to considering how the role can be carried out in their absence. This is key to drafting a contingency plan to cover all emergency situations. Knowing that the essential staff are trained and aware of what they need to do in this sort of situation is invaluable.

• It is worth considering whether employees who cannot get into the office could work from home for a day or two. This could actually turn out to be a great opportunity to get some paper work or admin out of the way. This arrangement will be beneficial to both parties and avoid a wasted day.

• Alternatively, this could be an opportunity to reap the benefits of a flexible working scheme. If an employee cannot get into the office, could they make up the hours over the next couple of weeks. Sitting down with the relevant employee and coming to an arrangement about making up the hours is likely to have the added benefit of building a good relationship with the employee since both parties will ultimately get what they want.

• Those with children are obviously likely to be affected by school closures. This is a difficult situation since parents will need to sort out alternative childcare arrangements at very short notice, or even stay at home themselves. This is compounded by the last minute nature of the closures since parents may only discover the school is closed once they have arrived at the gates. Careful consideration should be given to this situation with regards to how the employee’s family needs can be accommodated. Alternative working arrangements such as working from home can be invaluable, or perhaps they could take the day off as annual leave.

• Health and safety factors will also need to be taken into account. Will the car park present a risk of slipping and falling over? If it is a private car park, arrangements will need to be made to clear the snow and grit the area. If you have employees with mobility issues or pregnant employees, it would be prudent to reserve spaces close to the building entrance for them. If your employees have managed to get into the office, are you sure that they will be able to get home? If the snow is falling heavily and you know your employees have a long drive home, it would be sensible to allow them to leave earlier than normal so that they can miss the rush hour gridlock.

• A pressing concern for both employers and employees is pay. Should an employee expect to be paid for an absence caused by severe weather? There is no legislation stipulating this. Many businesses never pay an employee if they are absent for this reason. However, some choose to do so in the interests of maintaining good employee relations and as a considerate gesture. When considering the issue of pay, it is essential to note that if a contract or handbook states that these absences will be paid, this should be adhered to. In addition, if these absences have been paid in the past a precedent may have been set. If you are unsure of whether or not to pay employees who have not made it into the office, it is well worth considering seeking advice on the issue.

• It can be difficult if it is suspected that an employee is taking advantage of the weather to simply get an extra day off work. A return to work interview or investigation meeting can help ascertain the true circumstances surrounding an absence. Of course, regardless of the reason, all employees can be expected to follow the standard absence reporting procedures. A failure to do so, and/or misuse of the system can ultimately be dealt with through the disciplinary procedure.

Click here for a free adverse weather policy.  For more information about Empire HR please click here

January 2010 Bulletin

The Empire HR January Bulletin is now available to download, please click here