A statutory instrument bringing further sections of the Employment Relations Act 2004 has just been made. The sections come into force on 6th April 2005.

The sections coming into force are (in summary):

Union Recognition

• clarifying how the ‘appropriate bargaining unit’ is to be determined by the CAC;
• providing for a suitable person to handle communications between the union and the bargaining unit;
• provision for postal voting for workers away from the workplace;
• confirmation that ‘pay’, for collective bargaining purposes, does not include pensions;
• provisions to speed up the recognition or derecognition process;
• provisions empowering Acas to require information from the parties where it is asked to settle a dispute

Industrial Action

• extending the ‘protected period’ for lawful official action from eight weeks to twelve weeks;
• new mandatory matters to which a tribunal must have regard when deciding whether an employer has taken reasonable steps to resolve a dispute with the union.

Miscellaneous

• a right for employees not to be dismissed or subjected to a detriment because of being summoned for jury duty;
• amendments to procedures relation to the exercise of functions by the Certification Officer

The Employment Relations Act 2004 (Commencement No.3 and Transitional Provisions) Order 2005 (SI 2005/872) http://danielbarnett.c.topica.com/

The base definition of ‘employee working hours’ cover the time that the employee is at the disposal of the employer.

Travelling to and from work is not classed as ‘working hours’ unless it forms part of business travel for business activities.

Lunch breaks are also not counted as working hours unless it is a ‘working lunch’.

Employees over 18 years old are liable to work no more than a 48 hour week. This is calculated as an average over a 17 week reference period.

Employees that work night shifts must work no longer than 8 hour shifts in any 24 hour period: a night shift would involve an employee to have worked at least three hours between 11pm and 6am.

Employee Entitlement to Breaks

An employee aged 18 years or over is entitled to a 20 minute undisturbed break for every 6 hour shift they work. They are also entitled to 11 hours rest between each work day and are further entitled to one full day off each week.

An employee aged less than 18 years old (from the minimum age of leaving school) is entitled to a 30 minute undisturbed break for every 4.5 hour shift they work. They are also entitled to 12 hours rest between each work day and are further entitled to two full days off each week.

Employees are not liable to have toilet breaks without the consent of their employer. However, for the sake of your employees’ health, it is better for them to use the toilet freely.

Rights to Request Flexible Working Hours

Are you aware of the Flexible Working regulations that came into force on April 6th? Any employee with over 26 weeks service who has a child under six or a disabled child under 18 has the right to apply (in writing) for flexible working hours.

The request can cover:

• A change to the number of hours the employee works.
• A change to the times that the employee works.
• The change to working from home.

By law, the employee must give the request proper and careful consideration. A meeting must be arranged within 28 days of the application to discuss the request, and to allow the employee and employer to talk about any problems or alternatives.

Within 14 days after the meeting, the employer must write to the employee to either agree to a new work arrangement (with a start date), or to give clear business reasons why the request cannot be accommodated.

If both employer and employee agree, then additional time can be given to arrange a meeting or make a decision.

If the request cannot be accepted, then the employer’s letter must contain details of the appeals procedure available to the employee.

An employee has the right to appeal against the decision to employer within 14 days of receiving the decision. The employer must then meet the employee within 14 days, and then either accept or give clear reasons why the request can not be accepted within 14 days after the meeting.

In a minority of cases, employees may be able to take the request to ACAS, an employment tribunal, or through another form of dispute resolution. An employee can only take the request to an employment tribunal in certain circumstances. In the tribunal, the employer will need to show that they correctly followed the flexible working request procedures.

An employee can only make one request every 12 months. The request for flexible working is a permanent change, and there is no legal right for the employee to return to their original hours or times after their child reaches the age of six.

General research suggests that employees working flexibly are less likely to be absent, and are also more productive. The Work Foundation recently stated that in the USA, the average homeworker not only saves a substantial amount of pollution by not driving to work, they also perform with an average of 15% extra productivity.

Using internet and e-mail facilities for personal use at work costs businesses in the UK nearly £10 billion each year! Coming from another angle, over 60% of personal on-line shopping is conducted at work.

The abuse of internet and e-mail use not only costs money but also slows down production. In reality, it is a case of theft.

However, the material that is distributed via e-mail and downloaded from the Internet by employees can land the employer in court, in addition to damaging the reputation of the company.

Some offences are liable to warnings where other offences, such as downloading offensive material (i.e. pornography) and distributing e-mails that could be classed as harassment, are cases for immediate dismissal.

It has therefore come to no surprise why there has been a sudden demand from employers for law to give them a chance to monitor how their employees use communications at work.

Many disputes have arisen about how far an employer can (and should be able to) monitor the use of communications by an employee at work. An employer will see it as an attempt to ensure business efficiency, where an employee may see it as an invasion of privacy.

Creating an Acceptable Use Policy (AUP)

It is essential that you create an AUP policy stating how employees are expected to use business communications. This will inform your employees about when (if at all) they may use business communications for personal use. If you intend to monitor e-mails and telephone calls (regularly or occasionally) you should also make employees aware of the fact. You should also inform the employees that their e-mails may be looked at during periods of absence to continue the operations of the business.

This policy should be made aware to all employees and in turn, should be agreed to by all employees.

The policy will give you support for your actions should an employee violate the policy. If you dismiss an employee without a policy, you could be sued on the grounds of unfair dismissal.

Protecting Monitored Data

If you record any monitored data (i.e. phone calls) you must comply with the principles of the Data Protection Act.

E-mails

An employer can read business related e-mails addressed to an employee, however, they cannot read their personal e-mails with respect to their rights for privacy which extends from their private life to the work place.

If an employee is away ‘ill’ or on holiday, an employer still has the right to look at their business related e-mails to attend to any business matters (as stated by the policy).

If an employer opens a personal e-mail (believing it was a business related e-mail), they should immediately close the e-mail without reading on.

Regulations have suggested that you should:

• Initially monitor e-mail ‘traffic’ as opposed to ‘content’
• Monitor at regular intervals as opposed to constant monitoring
• Monitor only those employees that you consider a high risk
• Automate as much of the monitoring as possible (using specialist software)

Telephone Calls

If the employer does not provide a policy then they must inform an employee prior to monitoring their telephone calls with an ‘acceptable’ reason. By doing so, the employer has the legal right to monitor the call if the employee agrees. If an employer fails to inform the employee prior to monitoring, they have breached the employee’s right to privacy.

It is more practical to log the telephone calls of employees as opposed to personally listening in on calls (this can be very nerve-racking for employees therefore causing them to make more mistakes). This way, you can identify where the phone call was made to and for how long instead of invading employee privacy.

You should set up a telephone line that is never monitored so that employees can make personal calls if required (with your permission).

Internet

You should inform your employees that they should never delete the ‘history’ and ‘temporary’ files on their internet options.

However, it is more practical and less privacy invading if you monitor the time that individual employees spend using the Internet, before you personally look through the history and temporary files under suspicion.

You should further inform employees, how long records of visited web sites will be kept/stored on their computer (should this be for, say, a week, or as long as a year).

CC-TV Recording

If you intend to use TV recording around the workplace, you should only use it where there is no or little risk of invading employee privacy. Such monitoring should be made aware of to all employees and visitors to the premises, with justificationof its use.

Vehicle Monitoring

If you provide business vehicles, you can buy technology that records information such as distance travelled and visited locations. However, if you allow business vehicles to be used for private use, you should disable the technology when the vehicle is being used for such private use (with your permission).

Monitoring Without Consent of the Employees

There are certain cases where an employee does not need the consent of the employee to monitor communication use.

This is when an employer is monitoring for:

• Any unauthorised use of communications i.e. violating company rules and policies
• Effective operation of the communication systems i.e. viruses and maintenance
• Quality control i.e. if the employees are following set procedures
• Evidence of business transactions
• Criminal activity

Nevertheless, regulations say that you should at least inform staff of your intentions to monitor.

Using Monitoring Software

Monitoring software is widely available and can be the more efficient approach to monitoring employee use of the Internet and e-mail at work. The software can minimise the chances of you violating employee rights to privacy compared to manually monitoring communications.

Governing Bodies

The following laws all contribute legislation to the above:

• The Regulation of Investigatory Powers Act (2000)
• The Data Protection Act (1998)
• The Human Rights Act (1998)
• The Telecommunications (Lawful Business Practise) (Interception of Communications) Regulations (2000)
• The Freedom of Information Act (2000)

A pregnant employee is entitled to 26 weeks ‘ordinary’ maternity leave. There is no requirement for the employee to have served a specific amount of time to qualify for leave.

If the employee has worked for 41 consecutive weeks for the employer (up to the expected birth date), they are entitled to ‘additional’ maternity leave which entitles an employee to an extra 26 weeks leave that starts the day after the ‘ordinary’ maternity leave ends.

Ordinary maternity leave can be taken at any time from the 11th week before the expected birth date, although the employee is free to work until the day before the babies expected birth if they wish.

Employee Maternity Leave Notice

An employee must give their employer at least 15 weeks notice before the date of the expected birth and the date that she intends to start maternity leave.

The employer must notify the employee within 28 days to confirm her right to maternity leave and confirm her return date. On return, the employer must give the employee the same benefits as they had before taking maternity leave.

Statutory Maternity Pay

For a pregnant employee to qualify for Statutory Maternity Pay (SMP) they must:

• Have worked at least 26 consecutive weeks for the employer
• Have left work due to pregnancy
• Have not been earning less than the lower earnings limit for national insurance at least 8 weeks before the 14th week before the expected birth date
• Prove that it is 11 weeks before the expected birth date

SMP will be paid for a period of 26 weeks starting from the first day of the employee’s ‘ordinary’ maternity leave. SMP will be paid at the same time (weekly or monthly) as the employee’s wage would normally be paid.

For the first 6 weeks of ordinary leave the employee will be paid 9/10ths of their normal wage (calculated as an average over the last 12 weeks). The average wage will also include any bonuses - if any - and not just the basic wage.

For the remaining 20 weeks, the employee will be paid £102.80 per week unless this figure exceeds their weekly wage. In which case, the employee will be paid their regular wage for the full 26 weeks of ordinary leave.

However, if an employee fails to qualify for SMP but do have a national insurance record, they are liable to £102.80 per week (this rule does not apply to self employed).

Re-Claiming SMP Payments

Employers can reclaim 92% of SMP payments from the Government and if your National Insurance Contributions are less than £40,000 per year, you can re-claim 100% of the payments with additional compensation.

Paternity Leave

Fathers are entitled to two weeks paternity leave at a rate of £100 per week. The leave must be taken in weekly periods not necessarily consecutive.

Mothers and fathers that adopt a child are also entitled to adoption leave. Ordinary adoption leave can be taken up to 26 weeks with payments of £100 per week. Additional adoption leave can also be taken for a further 26 weeks.

Employers - Remember!

It is discrimination to dismiss an employee for reason of pregnancy. This also extends to failing to employ a person due to pregnancy.

www.bizhelp24.com/business_law/maternity-leave.shtml

No matter what size or type of business you run, if you employ staff then there will probably come a time in which you have to let one or more of them go.

Dismissing employees is a difficult and sensitive process, and should always be approached with caution.

This article in itself is not a complete guide to dismissal and redundancy, but is designed to give you a brief overview of all the key areas. With all matters of such sensitivity, we suggest you carry out further research before making decisions, and in difficult cases; contact an employment consultant or solicitor.

There are two main areas involved in letting staff go: Sacking/Dismissal and Redundancy.

Sacking/Dismissal

There are a number of acceptable reasons for dismissing an employee. Gross misconduct or repeated minor misconducts, or an employee failing to effectively carry out their job over a period of time are legitimate reasons for dismissal.

Minor misconduct

A minor misconduct is where an employee breaks rules or performs poorly, but where the consequences for the business are small or limited. For example:

• Being late
• Using a company vehicle for unauthorised personal uses
• Using company phones for personal calls
• Using company internet facilities for personal browsing/email use
• Not performing to adequate/satisfactory standards

A minor misconduct is not normally adequate grounds for dismissal, but if the behaviour is repeated, even after warnings, then it becomes a gross misconduct issue.

Gross Misconduct

Gross misconduct is where an employee breaks the rules, and the consequences for the business are damaging. For example:

• Abusive behaviour or violence
• Theft or fraud
• Alcohol or drug abuse
• Discrimination or harassment
• Deliberately damaging company equipment/property
• Seriously breaking health and safety regulations
• Serious negligence
• Serious insubordination
• Misuse of an organisations property or name
• Serious breach of confidence

Minor negligence caused by a lack of knowledge or experience should be addressed with training or guidance in the correct area. By law, the employee must be given reasonable opportunity to be taught the skills/knowledge needed to carry out the job.

Losing a customer because a form was not filled in correctly by a new employee who was given no relevant training is not misconduct of any level.

The loss of a relevant licence is also (in most cases) grounds for dismissing a worker, for example: If an employee drives a lorry every day, but loses their driving licence, they are no longer able to carry out their job. The employer therefore usually has reasonable grounds to sack the employee.

There can be grounds for the employee to expect the employer to reassign the employee to another function while any ban is being served. A short speeding ban may only last for two weeks, and it would therefore be reasonable for the employer to find other work for the duration of the ban.

A loss of a licence should not be used to remove employees for any reason other than their job ability during the ban. Be careful of dismissing an employee that could fulfil other functions while banned, it could lead to an unfair dismissal claim.

Redundancy

Downsizing, laying-off, letting go, re-evaluation, these are all nicer terms created to try and ease the pressure of making redundancies.

There are many reasons why you may need to make someone redundant, a need to save money, overcapacity, branch/office/ factory closure, or a lack of need for the job. In each case, there is a requirement to lose a particular number of staff.

Redundancy means that the job no longer exists. If a direct replacement is hired for the employee then it is not a reasonable case of redundancy. However, if an employee is made redundant as part of a need to reduce the workforce, and an existing employee moves into that job, that is still redundancy; as long as no vacancy or opening exists for the redundant job.

The realisation of redundancies in the workplace can often cause a lot of damage to employee morale, so offering voluntary redundancies first can help soften the blow. People who may be considering changing job or retiring can volunteer to be made redundant, thus minimising the need to make other employees redundant. Voluntary redundancies are still subject to the same payments and regulations as non-voluntary redundancies.

As redundancy payments vary according to years of service, voluntary redundancies can often cost more as longer service employees (see Redundancy pay section) take the option. Voluntary redundancies also risk your business losing valuable experience and skills, but it does remove a significant amount of the pressure involved.

Legality

Before making any decisions on dismissal, it is of vital importance to make sure that your grounds for dismissal are legal. There are many situations that are covered in the law as being illegal grounds for dismissal.

Such as:

• Race
• Gender
• Disability
• Pregnancy
• Union membership / Non-membership

If an employee is dismissed on any of these grounds, they have a right to claim for unfair dismissal. For example: It is not wrong to dismiss a disabled person as long as the grounds for dismissal are unrelated to the disability. To dismiss a disabled person for serious negligence is reasonable, but to dismiss a disabled person for slow productivity (caused by their disability) is not allowed, no matter when the disability became evident/occurred.

The situation is more complex if a disability occurs that makes the employee unable to carry out their existing job at all. In this case, you should look to provide alternative work.