Travel Time and Mobile Workers

Travel Time and Mobile Workers

Late last year, the European Court of Justice handed down a decision relating to workers who do not have a fixed place of work, involving implications for many businesses.

The case was brought by a group of technicians who did not have a fixed place of work. They were assigned an area to carry out installation or maintenance and would be told where they would be going on each particular day. On some days, their first or last appointments may have been up to 100 kilometres away from their home.

The employer of these technicians considered that the first journey of the day from home to the first assignment and the last journey of the day from the last assignment to home were not working hours. Indeed, this follows the non-statutory guidance issued by the Government on the same issue.

The workers considered that this should be deemed as working time on the basis that they did not have a fixed place of work.

The European Court of Justice reviewed the legislation on working time, which, in the United Kingdom, is the Working Time Regulations 1998. This states that: “working time involves any period during which the employee is at work, at the employer’s disposal and carrying out their activity or duties.” The decision of the ECJ was that time spent travelling to a first destination from home and from a last destination to home should be counted as working time. The workers were deemed to be carrying out their duties when travelling to a first client because they had no fixed place or office to go to beforehand. They were at the employer’s disposal because they were legally obliged to obey the instructions given to travel to a particular place at a particular time and the employees could not use their time freely or pursue their own interests during this travel time. Finally, they were deemed to be at work as, having no fixed place of work, the journey itself amounted to work.

So what does this mean to you? This ruling covers any staff who do not work in fixed locations, so anyone who moves around and starts and ends from home. This will cover external salespeople, engineers, carers, and such roles.

It is important to remember that the decision impacts working time for the purposes of the Working Time Regulations 1998. This means that such travel time for mobile workers must be included when determining whether an employee has been afforded the opportunity of adequate rest breaks and daily rest periods. Within the WTR, there is a maximum working time of 48 hours per week, unless they opt out of this.

Employers should review whether such travel time exceeds this limit. If it does, employers should ensure that an adequate opt-out is signed, allowing employees to work in excess of 48 hours.

Some people have commented that the decision may also impact minimum wage legislation. It is suggested that such travel time should now be counted for the purpose of assessing whether an employee has been paid the minimum wage. At this time, the ruling does not extend this far, as the National Minimum Wage Regulations provide a different definition of working time. Nevertheless, this may be litigated on in the future, and employers should be mindful of this going forward.

If in doubt, please give us a call.


Managing Mental Health in the Workplace

Managing Mental Health in the Workplace

This is a subject on which small employers are often unsure on how to support their staff.

Ignoring it or hoping it sorts itself out is not the solution.

To help, here are some tips and information.

1. Mental health can affect anyone

Most people have heard that one in four people will experience a mental health problem each year. As with physical health, everyone has the capacity to develop the issue at any time, just like anyone can break their ankle on their way to work or be hit by that nasty bug that seems to go around every winter. Most of us will know how to respond to these situations without confusion or fear of offending; however, there is a sizeable gap in our understanding when someone experiences panic attacks or symptoms of depression, or even if they just feel that they’re not handling things as well as they would normally.

2. Mental health conversations benefit everyone

If we consider that everyone has mental health, then a positive and open attitude towards it would be of benefit to all, whether they are the one in four UK people that Mind estimates suffer from mental health problems in a year or the three out of four that don’t. Even when it is not an employee who is suffering from mental health issues, it may be someone in their family or a close friend, so they could still be bearing a significant burden and would benefit from support, especially in the workplace where the wellbeing, and therefore performance and productivity, of employees are key considerations.
If we carry the notion that mental health is a topic for all, promoting openness around mental wellbeing could theoretically go a long way to ensuring that the whole organisation benefits from a cohesive and joined-up strategy, often contributing to the development of the wider cultural agenda for the organisation.

3. Mental health conversations are not just for managers

It has been clearly established that promoting openness around mental health in the workplace can contribute to the wider diversity and cultural objectives of organisations. However, if there is a benefit for individuals to talk about mental health, it shouldn’t just fall to managers to start conversations with their teams. While the wellbeing of staff is obviously key for managers, it’s a task for everyone to ensure that anyone who finds themselves with a mental health issue is also supported by their peers and colleagues. The more understanding everyone has, the more opportunities individuals have to open up about their mental health at a more informal level.

4. Having the conversation

Despite attitudes improving over the last few years, mental health is still something that carries a certain stigma fuelled by people’s misunderstanding, fear and the innocent notion that it “may not happen to them”. The more we educate and talk about mental health at all stages, the easier we will find it to encourage openness, start conversations and develop engaged and productive workplaces.

If you want to know more, please do not hesitate to contact us on 01924 441032 or info@lamontjones.co.uk


Disciplinary procedures: Six common mistakes made by inexperienced managers

Disciplinary procedures: Six common mistakes made by inexperienced managers

Inexperienced managers can struggle to put disciplinary policies into practice.

Employers often spend a large amount of time drafting a fair disciplinary policy but fail to give the same attention to training their staff to put it into practice.

Here are six common mistakes made by inexperienced managers:

  1. Not following the ACAS code of practice

Managers need to be familiar with the ACAS code of practice on disciplinary and grievance procedures, as well as their own disciplinary rules and procedures.

Although a failure to follow the code does not in itself make an employer liable to proceedings, employment tribunals will take the code into account when considering relevant cases.

  1. Not warning the employee of the possible consequences

The employee must be made fully aware of the likely disciplinary penalties if the allegations are upheld.

Depending on the seriousness of the allegations, the possible penalty might be a formal verbal warning, a written warning, a final written warning or even dismissal. In short, the disciplinary decision should not contain any surprises.

  1. Including new allegations without investigating

It can be tempting to add any new allegations that surface during a disciplinary investigation to the current ones that are subject to the disciplinary process.

This is not advisable, as any fresh allegations must be fully investigated before a disciplinary hearing takes place.

  1. Issuing the penalty without considering all relevant factors

Managers should consider what type of penalty has been imposed in similar cases in the past. They should then bear in mind the particular circumstances. This can include the employee’s disciplinary record, his or her general work record, position within the organisation, and length of service.

Managers must also take into account any mitigating circumstances. This could cover matters relating to the employee’s health, any domestic problems, or whether or not the behaviour in question arose due to the employee being provoked. If the employee has breached a rule, consideration needs to be given to whether or not the employee was reasonably aware of that rule.

  1. Not checking what penalties are allowed under the disciplinary policy

Only in very serious cases will summary dismissal for a first offence be merited. In cases of minor misconduct, a series of warnings before dismissal will be more fitting.

  1. Getting the reason for the dismissal wrong

Employers sometimes struggle to categorise the type of behaviour that has given rise to the allegation. A dismissal will be considered unfair, even if the employee could have been dismissed fairly based on the facts, if the stated reason for the dismissal is incorrect.

So if you are not sure, get some help and call us on 01924 441032.


Redundancy Pools – what are they?

Redundancy Pools – what are they?

Determining the correct way to do a redundancy pool is essential to carrying out a fair redundancy exercise. To avoid getting it wrong at this early stage, we have compiled this guide to help—myth and fact!

1) Myth: It is okay to select fixed-term employees for redundancy because of their fixed-term status and not include them in the redundancy pool.

Fact: The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are relevant here. What this means is that it is unlawful to treat fixed-term employees less favourably than comparable permanent employees just because they are on a fixed-term contract. Employers should not select fixed-term employees for redundancy because of their fixed-term status and should include them in the redundancy pool for selection alongside permanent staff.

2) Myth: There is only one correct way to define the redundancy pool.

Fact: Employers have some flexibility as to how they determine the redundancy pool; there is no “one size fits all” approach. However, employers will still have to show that they have considered the scope of the pool carefully and based their decision on genuine reasons so the matrix is essential. Additional measures around agreeing the pool for selection will need to be taken where union or employee representatives are involved.

3) Myth: There is no need to pool transferring employees under a TUPE transfer with existing employees.

Fact: It may be necessary to put existing and transferring employees within one redundancy pool, depending on the circumstances. Much will depend on job functions and whether both sets of employees can be required to perform the same work. If the pool is incorrectly defined, this could lead to claims of automatically unfair dismissal under TUPE.

4) Myth: There is no need to include employees from two associated companies within one redundancy pool.

Fact: If the definition of “associated company” under the Employment Rights Act 1996 is met, then employers will need to consider pooling employees from an associated company with those who are at risk in the company where the need for redundancy arises. Employers will need to consider factors such as whether both sets of employees carry out the same or similar job functions

5) Myth: Those on maternity leave have special protection from redundancy and should not be included in the pool for selection.

Fact: The law does not, in fact, prevent those employees who are on maternity leave from being placed in a redundancy pool. However, employers will need to be sure that their rationale for including an employee on maternity leave is objective and non-discriminatory. It is also worth bearing in mind that an employee who is made redundant while on maternity leave has special rights relating to being offered suitable alternative work.

So, to avoid getting it wrong, get specialised help and ring us before you take action.


Criminal Records & Human Rights, the effect on employment

Criminal Records & Human Rights, the effect on employment

Do you conduct criminal record checks on your staff? If so, read on

In this blog, we will consider the following:

  • Criminal record checks
  • Job applicants with convictions
  • Jobs where it is lawful to ask for details of spent convictions

There has recently been some court action challenging the requirement on job seekers to disclose to prospective employers less serious offences, or offences that were committed a long time ago or when the offender was a minor.

In 2013, the Government amended the criminal record checks scheme to allow the filtering out of single convictions for some offences.

Since 2013, single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence have been filtered out after 11 years (or after five years and six months if the offender was a minor at the time of the offence).

The changes were made after several cases in which individuals successfully argued that minor offences, or offences that they had committed in the distant past or when they were children, were preventing them from obtaining employment.

The case law culminated in a Supreme Court ruling that it was a human rights breach for the Disclosure and Barring Service (DBS) to lead to: an individual being unable to take a part-time role with a local football club over police warnings he received after he stole two bicycles when he was 11 years old; and a job applicant being prevented from working in the care sector because of a 2001 police caution for leaving a store with a packet of false nails for which she had not paid.

However, the amended rules provide that disclosure takes place when there is more than one conviction, regardless of the offence or circumstances.

This “multiple conviction rule” has been the subject of a further legal challenge.

Two individuals whose convictions were not filtered because they had committed more than one minor offence successfully challenged the revised scheme in a judicial review application in the High Court. So, it should be considered in this sort of circumstance whether the criminal record checks had been disproportionate. The purpose of the two-conviction rule is specifically (and legitimately) intended to target inclusion of those cases which reveal a pattern of offending behaviour. Where a pattern of offending behaviour is demonstrated, it is entirely legitimate to conclude that such information should be available to potential employers.

The problem is that it is not necessarily the case that two convictions do represent a pattern of offending behaviour; indeed, on very many occasions, they don’t.

The High Court has found that the revised criminal record-checking scheme is incompatible with the right to respect for private life under the European Convention of Human Rights.

The Government challenged the High Court decision in the Court of Appeal and, at the application of the multiple conviction rule, The Court rejected the Government’s argument that a review mechanism for testing the proportionality of the disclosure in each case would not be feasible.

According to the Court of Appeal, it should be possible to introduce a filter that considers the nature of the offences and the length of time since convictions.

An alternative suggestion from the Court of Appeal was a mechanism for review in specific circumstances, like the process for removal from the sex offenders’ register.

So, what do you do?

Well if there is a need to check, because of the nature of the work your company and staff do, you can justify why you need to carry out this part of the process of employing staff

BUT if there is no justification for you to do these checks, you could get into hot water; if in doubt, give us a ring.

Undoubtedly, there will be cases where a job offer (made subject to a clear check) will have to be withdrawn, but as this article has noted, you should treat each case on its own merits. To follow a blanket policy to withdraw the job offer whenever you do not obtain a clear check may be challenged and you just may lose!


Homeworker

What should employers be aware of if they want to facilitate homeworking?

The aim of encouraging this type of work practice is not only to make you a progressive and enlightened employer but also to encourage smarter working practices. Cutting out the commute by allowing people to work from home can be a win-win, offering opportunities for the employer to reduce/reallocate office space and, for the worker, the benefit of valuable time savings.

According to the Office for National Statistics, 13.9% of the UK’s workforce were homeworkers in January to March 2014, up from 11.1% in 1998, and the proportion of the UK workforce working from home is likely to rise as employers increasingly recognise that flexible working, including homeworking, can bring benefits to their organisation.

Homeworking may mean working exclusively from home, but the term “homeworker” can also be used to describe those who divide their working time between home and their employer’s premises, work at home on an occasional basis, or are mobile workers who use their home as an administrative base. Whatever the precise arrangement, there are a number of issues for an employer to consider.

Do you need to change your employment contracts?

It will normally be appropriate to tailor a standard employment contract to reflect any homework arrangements. In some instances, it may also be sensible to put in place specific policies to cover some of the more practical arrangements.

Particular changes to the contract to consider include the following:

  • Place of work: if the employee will be predominantly working from home, the normal place of work will be the employee’s home, although the contract should also include a provision that the employee can be required to attend the office as necessary. There should also be a provision for what happens if the employee moves house, particularly if the move is further away from the office, which may have financial implications for the employer.
  • Hours of work: specify when the employee will need to be available for work. For example, will the employee be required to observe strict office hours, have complete flexibility over when they work, or have certain “core hours” when they must be available? Will they be required to account for their time, and if so, how?
  • Salary and benefits: you should take care that homeworkers are not treated less favourably on grounds of any protected characteristic. For example, if an individual is working from home because of ill health and receives less favourable benefits than a comparable office-based employee, they may claim disability discrimination. Ensure, for example, that they have access to work-related benefits (such as the staff canteen or workplace gym), even though they may not use them regularly.
  • Expenses: consider whether or not employees will be entitled to expenses for travel to the office or a contribution towards telephone, broadband, heating, and lighting costs. Other expenses to consider include postal and courier costs, stationery costs, and photocopying and printing costs. If certain conditions are met, payments by employers to reimburse employees for reasonable additional costs incurred as a result of homeworking can be tax-exempt.
  • Confidentiality and data protection: this can be difficult to supervise remotely, so include an express term to address what is considered confidential information and the necessary protections required (such as passwords, encryption, a secure filing cabinet, a shredder, etc.) and make sure data protection obligations are maintained. If the employee is using their own computer/ phone, ensure you have the right to monitor work communications on those devices.
  • Equipment: will the employee require specific equipment to perform their work? If so, who will provide and pay for this equipment, and who is permitted to access it? Will the equipment need to be insured, and if so, whose responsibility will it be to arrange and pay for this?
  • Right to enter: do you want to include a licence to enter the employee’s home (on reasonable notice) to install, maintain, or service any company equipment, or retrieve it on termination? A right to enter may also help enable you to carry out risk assessments for health and safety purposes, although legal advice in terms of enforcing this right would be needed if the employee (or another person) was refusing entry.
  • Trial period: consider allowing homeworking for a trial period and including this in the contract so you can assess if the arrangement will work in the long term. It is also worth including the right to require the employee to revert to office-based work.

There are also practical considerations to consider when agreeing to a homework arrangement.

Health & Safety

An employer is responsible for an employee’s health, safety and welfare so far as is reasonably practicable. This means that employers must conduct risk assessments of all the work activities carried out by employees, including those working from home.

Whilst most homeworkers will be doing low-risk, desk-based jobs, you should ensure appropriate risk assessments are conducted both at the start of the homework arrangement and periodically thereafter. Consider how you might regulate stress levels, how you might ensure that rest breaks and other working time obligations will be met, whether specialist equipment is required or needs to be safety tested, first aid arrangements, and reporting work-related accidents. The Health and Safety Executive provides useful guidance regarding homeworking.

Equipment

There is no legal obligation on an employer to provide the equipment necessary for homeworking. However, it is advisable to consider this on a case-by-case basis, particularly where the employee may suffer from a disability and the provision of such equipment could be considered a reasonable adjustment.

Most employers will provide basic equipment, at least. For example, most will want homeworkers to use only company computer equipment to ensure compatibility, as well as maintenance of virus protection and other security measures. It may also be sensible to provide the homeworker with a dedicated telephone line.

If the employee will be using their own computer equipment, agree whether the employer should pay for its maintenance, repair and fair wear and tear.

Data Protection & Security

Carry out a risk assessment of the data protection implications of homeworking. This would include consideration of the following:

  • Who might have access to the employee’s computer?
  • Is the employee’s home adequately secure?
  • What rules do you have regarding encryption, use of passwords, and the transfer of data between home and office?
  • What rules do you have in place regarding the retention of data?
  • What measures should be taken against accidental loss, destruction or damage?
  • Reporting & Performance Monitoring and Reviews

Out of sight does not mean out of mind. Adapting your reporting and review procedures, as well as individual management styles, will be important both for the homeworker, who may otherwise feel isolated and without support, and the employer, as you will need to monitor the quality and/or quantity of the homeworker’s output and retain the relevant level of control over the relationship.

Consider formalising the contact that homeworkers should have with their manager (for example, being required to report in at least once per day/week). You could also require homeworkers to attend the office for regular meetings.

Insurance

Check your public liability insurance policy to see if it covers employees working from home. Make sure your actions (or any lack of action) don’t invalidate the insurance.

Mortgage Provider Consent

Remind the homeworker that they must have consent from their mortgage provider to work from home unless it is on an ‘odd’ occasion

Tax

The mere fact that an employee is working from home should not change their tax status; you should still deduct income tax and national insurance contributions as normal.

However, you may advise the employee:

  • to check any potential council tax liability which might result from homeworking;
  • that some of their homework expenses may be tax deductible;
  • that, in limited circumstances, they may be entitled to a tax deduction in respect of the expenses of travelling from home to the office; and
  • if computer equipment provided by the employer is used for anything more than “insignificant” private use, a tax charge may arise.

Working Time

Normally, time spent by an employee travelling to their place of work would not count as “working time” under the Working Time Regulations 1998. However, where the employee’s normal place of work is their home and they travel to their employer’s premises or to see clients/customers, this could count as “working time”. You will need to ensure that homeworkers do not exceed the 48-hour limit on their working week when travel is considered (or that they have opted out of the maximum hours’ cap).

The war for talent is strong in the marketplace, and people are demanding to work differently. With employees increasingly welcoming the opportunity to work from home, employers that can offer this should reap the rewards from this competitive advantage.