A caregiver in the garden

Carers Leave

The Carer’s Leave Bill has received royal assent to become the Carer’s Leave Act 2023. What will this legislation mean, and when can we expect the new law to be implemented? 

The new Carer’s Leave Act 2023 amends or inserts new provisions into the Employment Rights Act 1996, providing powers to make regulations to create an entitlement for employees to take one week’s unpaid leave from work in any twelve-month period in order to provide or arrange care for a dependent with a long-term care need. This will be day one, right? 

Who is a dependent?

A person is a “dependant” if they are a spouse, civil partner, child, or parent of the employee, or live in the same household as the employee (otherwise than by reason of being their boarder, employee, lodger, or tenant), or reasonably rely on the employee to provide or arrange care. 

A dependent has a “long-term care need” if they have an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months, or they have a disability for the purposes of the Equality Act 2010, or they require care for a reason connected with their old age.

What are the regulations?

The regulations will also set out how carer’s leave may be taken, but the aim is that it can be taken flexibly to suit the employee’s caring responsibilities and will be available to take in increments of half-days or individual days, up to a week. The regulations will additionally set the rules around what notice must be given by an employee to request to take carer’s leave and when the employer has the right to postpone a requested period of carer’s leave. Employees won’t, however, be required to provide evidence in relation to a request for carer’s leave.

Employees taking carer’s leave will have detriment and automatic unfair dismissal protections.

Although a date for implementation hasn’t yet been set, these provisions are unlikely to come into force before April 2024, and the government has said that it will lay out the relevant regulations in due course.

 

As soon as it becomes law, we will let our clients know and update the statutory handbook.

 

As usual, if you have any questions or concerns, please do not hesitate to contact us at 01924 441032.


too hot to work heatwaves

Heatwaves: Common questions employers are asked

Let us start with the facts and some answers to commonly asked questions:

While there are legal restrictions on making people go to work in certain extreme weather conditions, there is no maximum temperature set out by the law to dictate when it is too hot to work. 

This is because every workplace is different. No meaningful upper limit can be imposed because in many indoor workplaces, high temperatures are not seasonal but created by work activity, for example, in bakeries or foundries.

However, while there is no legal maximum or minimum working temperature, all workers are entitled to an environment where risks to their health and safety are properly controlled. Heat is classified as a ‘hazard’ and comes with legal obligations as any other would.

The government states that, during working hours, the temperature of all indoor working spaces must be "reasonable.". Employers must also stick to health and safety at work, including keeping the temperature at a comfortable level expected for the role and providing clean and fresh air.

Common questions your staff may ask during heatwaves:

Can a worker leave their workplace if it becomes too hot?

Not unless they feel unwell, and then they need to take sick leave. The Workplace (Health, Safety and Welfare) Regulations 1992 place a legal obligation on employers to provide a “reasonable” working temperature in the office. As the employer, you do have a duty to determine what reasonable comfort will be in particular circumstances.

Are there any other regulations that protect workers during hot weather?

In addition, the Management of Health and Safety at Work Regulations 1999 require employers to make a suitable assessment of the risks to the health and safety of their employees. The temperature of the workplace is one of the potential hazards that needs an assessment.

Do you have to legally provide air conditioning in the office?

No, you do not. Where working temperatures are uncomfortable, employers should consider:

  • Using fans (or air conditioning, if available).
  • Providing cool water in the workplace and encouraging workers to drink it to prevent dehydration. 
  • Modifying the dress code requirements, if appropriate,.

Is it acceptable for workers to wear shorts and flip-flops in the office during warm weather? What can you do if this happens and a worker defies their employer?

  • If appropriate and in line with your PPE requirements, you can make temporary changes to your dress code policy to allow for the warmer weather. However, you can still insist on certain standards of appearance, particularly for customer-facing roles, and for shoes and clothing to be sensible for health and safety reasons. 

Are there any other regulations that protect workers during hot weather?

  • While there are no legal requirements for employers to make additional allowances for those listed above, it is advisable that you be considerate of your employees during times of extreme heat. Some small but helpful changes can go a long way towards building the goodwill of your workforce, and in turn, they are likely to help the business; after all, if people are too hot, they are unlikely to be at their most productive!

DVLA Logo

Photocard Driving Licence Renewal Reminders

The DVLA is reminding drivers that they are legally required to renew a photocard driving licence every ten years.

A letter is sent to an individual’s home address. If any of your employees drive for you, then you need to make sure that you obtain a copy.

Photocard driving licences are only valid for 10 years from the date of issue, not the start of the year they are issued.

Failure for drivers who do not renew them risks a personal fine of £1,000 and the possibility of the vehicle they are driving being seized. This is something you do not want to risk.

The submission has to be applied for before the current one expires. The holders can continue to drive while it is being processed, but individuals have to apply themselves.

If any of your employees drive their own vehicles or your vehicles to do the job they are employed to do, then you are relying on them being prompt and efficient when the DVLA writes to them.

Rather than take the risk, it would be prudent to have a checking system in place so you can ensure it has been done.

The second consideration is insurance, and this is very important.

If an employee drives for you, whether in their own car or a company vehicle, and their photocard licence has expired, then this will automatically invalidate the insurance policy that covers the vehicle.

This is not a concern for staff commuting to and from your place of work, but it is a concern if they drive for you as part of the job they do.

Licences can be renewed online if the individual has a valid UK passport, and renewal takes 3–4 weeks.

We would advise you not to take the risk and to check; if you need any advice, please give us a ring.


The duty of fidelity – what does that mean?

The duty of fidelity – what does that mean?

Directors will be aware of the ‘fiduciary duties’ owed by every director of a limited company to that company as a matter of law. Amongst other things, these fiduciary duties require directors to act in the best interest of their company, exercise independent judgement, and avoid any conflicts of interest, but what about employees?

Employees who are not directors do not have fiduciary duties. However, there are various other duties and obligations that are implied into every employment contract by common law, whether their contact says it or not, and even if there is no written contract at all. Most notably, every employee owes a ‘duty of fidelity’, which requires them (the employee) to act in good faith towards their employer.

The duty of fidelity can leave the employee vulnerable to disciplinary proceedings (and potentially dismissal) if breached.

The obligations imposed on an employee by the duty of fidelity include the following:

  • to act honestly towards their employer;
  • not to disrupt their employer’s business;
  • not to compete with their employer (either on behalf of another business or on their own account);
  • not to poach staff or solicit their employer’s customers and suppliers away from their employer;
  • not to misuse their employer’s property;
  • not to make a secret profit by (for example) diverting work away from their employer; and
  • to ensure that their employer’s confidential information remains confidential.

The duty of fidelity is rather broad, but the specific aspects of an employee’s duty of fidelity towards their employer will differ depending on the nature of the particular employment relationship and the seniority of the employee.

An employer who suspects that an employee is in breach of their duty of fidelity may have grounds to discipline the employee, particularly if the employer can show that the employee is not acting honestly or has breached confidentiality.

If you need any more information on this topic, please do not hesitate to call us.


Hr professionals writing a job description

Does an employee have to disclose a disability?

According to a recent study undertaken by BUPA, 43% of employees with a less visible disability haven’t disclosed it to their employer. This raises the question: do employees have to disclose disabilities, and what’s the legal position if they don’t?

There’s no specific legal obligation for employees to disclose that they have a disability. In fact, the survey found that 23% of those with a less visible disability hadn’t disclosed it because they were worried that they wouldn’t be believed, and 20% were concerned that it might impact their career opportunities.

What is your responsibility as an employer?

Under the Equality Act 2010, if you do not know of an employee’s disability and couldn’t reasonably be expected to know, there is no discrimination arising and no duty to make reasonable adjustments.

In other words, you need to have actual or constructive knowledge of the employee’s disability before you can be found liable for failing to make reasonable adjustments or for discrimination relating to disability.

However, just because an employee hasn’t disclosed their disability to you or you haven’t found out about it through other means, you may still have constructive knowledge of it.

For example, if an employee is taking a lot more time off sick or for hospital appointments, or there are changes in their behaviour at work or in their performance levels, these could all indicate that an employee may have a disability. You should then take reasonable steps to find out whether they might be disabled, rather than burying your head in the sand.

Ways to investigate this may include, for example, holding return-to-work meetings following sickness absence, considering the reason for absence specified on their statements of fitness for work (fit notes), and seeking medical advice from the employee’s GP or your occupational health (OH) advisors with their consent. Although you must ultimately reach your own conclusion about whether an employee is disabled and not just unquestionably accept the opinion given by your OH advisors,.

However, this is not to say that every employee who displays the above behaviours should automatically be considered disabled and treated accordingly under the Equality Act 2010. Other times, a change in behaviour at work could simply be down to a conduct issue with the individual, which may require further action or progressing down your disciplinary procedure.

Similarly, you don’t need to take every step possible to establish whether an employee is disabled in order to avoid having constructive knowledge of their disability.

But you do need to ensure that you establish which route is appropriate for the situation at hand and that you have taken all reasonable steps to do so before taking action.

This can be a tricky area to navigate through, and each scenario is individual. If you have a situation that you are currently struggling with as an employer, please do not hesitate to get in touch so we can guide you appropriately.


Menopause and the Workplace

Menopause and the Workplace

Last year, the Women and Equalities Committee of the House of Commons published the report ‘Menopause and the Workplace’.  The Report made twelve recommendations to the Government, aimed at encouraging an improvement in the support and legal rights in the workplace afforded to women experiencing menopause.  The Government has now published its response to the Report and outlined its approach moving forward.

The Report, published in July 2022, made several recommendations:

  • the appointment of a Menopause Ambassador to work with businesses, unions, and other groups to give guidance to employers.
  • the production of model menopause policies to assist employers;
  • for the Government to work with a large public sector employer to develop and pilot a menopause policy;
  • legislation for flexible working to become a day-one right to all employees;
  • to implement section 14 of the Equality Act, which would have the effect of introducing sex and age as a single dual protected characteristic; and
  • to launch a consultation on amending the Act to provide for menopause as an individual protected characteristic.

The government has agreed with some, but not all, of the report’s recommendations.

It confirms that it will appoint a ‘Menopause Employment Champion’ to work with employers and the government to highlight best practices and how they can improve support in the workplace.  It also accepts the recommendation to make flexible working a day-one right for employees, something it has recently announced it will legislate on.

However, the government has rejected several of the report’s recommendations, including the implementation of a model menopause policy in the public sector (something it does not deem necessary due to current efforts to develop guidance and policies in this area).

A very important area that they did not agree with was the proposal to classify menopause as a protected characteristic under the Equality Act; this has been refused. It is the opinion of the government that it would be unworkable in practice.  The report comments that the current protected characteristics (specifically age, sex, and disability) already provide sufficient protection against unfair treatment of employees experiencing menopause.

If you want to know more on how you can protect yourself in this area, please do get in touch.


minimum wage increase

Changes to National Minimum Wage April 2023.

The increase in the national Wage will come into effect on April 1, 2023.

Below Is the new minimum wage rate, which almost all workers are entitled to by law.

  • Age 23 or over: £10.42
  • Age 21 to 22: £10.18
  • Age 18 to 20: £7.49
  • Age 16 to 17: £5.28
  • Apprentice: £5.28 *

Note on Apprentices

Apprentices are entitled to the apprentice rate if they are either:
  • Aged under 19
  • Aged 19 or over and in the first year of their apprenticeship

Apprentices who are aged 19 or over are entitled to the National Minimum Wage for their age once they have completed the first year of their apprenticeship.

Example: An apprentice aged 23 would receive £5.28 per hour for the first year of their apprenticeship. When they reach the age of 24, they are entitled to receive £10.42 per hour, even if they have not yet completed their apprenticeship.

Other Statutory Payments from April 2023:

  • Statutory maternity, paternity, adoption, shared parental and parental bereavement pay will increase to £172.48 per week.
  • Statutory Sick Pay: increase to £109.40 per week. (up from £99.35 per week)

Lamont Jones are here to provide you with the latest and most important news regarding HR and Employment law. It is vital you keep up to date on governmental changes; otherwise, penalties may be incurred. We are only a phone call away if you have any questions!

Download our useful free HR guides here


Managing Mental Health Absences

Managing Mental Health Absences

Some companies are still experiencing a high absence rate due to mental health reasons.

If this is not managed correctly, it can put colleagues and the service you provide under strain, as well as hit your bottom line because that employee is not contributing to the overall company plan, but there could be litigation looming.

This information explains the legal background around sickness absence, what support you can give to staff, and the procedures you can follow.

It is vital that you follow your own internal procedures for reporting and recording sick notes without exception.

Doctors' notes should not just be filed away; what is written on them must be understood first.

There have been countless occasions where a company views a doctor's note as just a payroll matter and fails to understand what is written on the sick note. If a doctor's note says 'work-related stress', you must get in touch with HR. Often, it is a mixture of private things and work that adds to an employee's mental state.

Often, such matters can be nipped in the bud, and an employee returns to the workplace, providing a fully functioning role, sometimes with support and possibly some adjustments. One of the actions you should undertake is a welfare meeting as part of the return-to-work interview.

If your managers have not been trained on how to address the sensitive and tricky issue of mental health or have not progressed with a wellness support package before, please get in touch for guidance.


Can you award individual pay rises and/or one-off payments?

Can you award individual pay rises and/or one-off payments?

The hot topic on all newsfeeds at the moment is the cost of living, strikes for more than inflation rises and general discontent, especially within public sector employees.

It may not be possible for you to award double-figure pay raises for all your team, but you may want to do "something" to ease the burden and foster goodwill.

With the average wage rise being 4.7% between April and June 2022,. However, the real value of pay has fallen by 3% as it’s being outpaced by high inflation. This may result in employees submitting individual pay raise requests in addition to any business-wide salary review exercises. How should you respond?

One-Off Payments

What may be affordable is a smaller-than-inflation pay rise plus a one-off payment to ease the current cost of living burden. This is possible, and ideally, you would have a provision to do this in your contract of employment. If your contract does not have this clause, then you will need to ensure that you make it clear, in writing, that this is a one-off occurrence to support them this year only and that it does not mean that this will reoccur next year. If you decide to award a one-off payment, it will have to be put through payroll and be subject to normal HMRC deductions.

Individual Pay rises

Provided you are paying your employees the applicable national minimum or national living wage rate (or above), then pay is a contractual consideration. This means that you can generally agree with an employee what their salary is.

The Equality Act 2010 gives women (or men) a right to equal pay for equal work by giving them the right to equality in the terms of their employment contracts. Legislation makes it unlawful to offer different pay and contractual terms and conditions where women and men are doing the same or broadly similar work, work that’s been rated as equivalent or work that’s of equal value in the same or associated employment. If you grant an individual pay increase and other employees find out about it, an employee of the opposite sex who is doing broadly similar work or work of equal value to the employee you have just given a rise could claim that you’ve breached legislation.

However, if you can show that the difference in pay is because of a material factor, that doesn't amount to sex discrimination, and that factor is a material difference between the two employees’ wages. If you can demonstrate, with evidence, that the pay rise awarded was because of the rewarded employee’s qualifications, skills, extra efforts, or achievements, and this does not apply to the other employee, then that should be a sufficient defence.

It won’t be enough of a justification that you’ve simply awarded a pay raise because the employee asked for it. Let us not forget that employees can also allege pay discrimination under the Equality Act 2010 based on other protected characteristics, e.g., race, age, disability, etc.

If you do award an individual pay raise, be aware that you cannot prevent employees from disclosing pay information, even if you ask the rewarded employee to keep the matter confidential.

As usual, if in doubt, please give us a call.

May we take this opportunity to wish all our clients a HAPPY CHRISTMAS and a Prosperous New Year


Home Working

Are you allowed to monitor homeworkers?

According to recent surveys, 60% of workers who worked from home during the pandemic maintain they are more productive. However, only 33% of business decision-makers thought that the workers in their team were more productive, and 35% believed that they were less productive when homeworking.

To what extent can you monitor homeworkers to assess productivity levels?

You can monitor homeworkers to keep track of their productivity, but you need to ensure compliance with relevant legal provisions, including the UK GDPR, the Investigatory Powers Act 2016, and the Investigatory Powers (Interception by Businesses, etc., for Monitoring and Record-keeping Purposes) Regulations 2018. This means that you must:

  • conduct a data protection impact assessment (DPIA) before introducing any new systematic monitoring activity
  • be transparent and provide detailed information to employees about your monitoring activities
  • have a lawful basis for processing monitoring data; “legitimate interests” is likely to be your lawful basis, i.e., the processing is necessary for the purposes of your legitimate interests. However, this can only be relied on where the employee’s interests or their fundamental rights and freedoms don’t override your interests, so make sure you first conduct this balancing test, which you can do as part of your DPIA
  • ensure any monitoring is proportionate to what you’re trying to achieve
  • You have lawful authority to intercept any communications (phone calls, emails, etc.) covered by the Investigatory Powers Act 2016. You can monitor or record communications without an employee’s consent in order to: establish the existence of facts; ascertain compliance with the regulatory or self-regulatory practices or procedures relevant to your business; ascertain or demonstrate the standards that are to be achieved by persons using the system in the course of their duties; prevent or detect crime; investigate or detect the unauthorised use of the system; or secure the effective operation of the system. However, you must first have made all reasonable efforts to inform employees that interception may take place
  • strike a balance between protecting your business interests and employee privacy in the workplace.

If you need any guidance, please get in touch