In this issue… Page What PERS can do for you, our HR packages 2 Come on board, become a PERS Trustee 2 When to use zero hour contracts and PERS support 3 Legal Update – changes to flexible work-ing, TUPE and right to work in UK. What you need to know in 1/

2 page 4 ‘Grossing up’ misconduct – how not to handle a series of misdemeanours 5 How to use trigger points in disability absence 5 Home Working 6 - 7 Nova 8 Contact us 8

Issue 30

Jul 2014

Employment law and HR advice

All our subscribers have unlimited access to our experienced advisors by telephone or email. The advice line is open Monday to Friday (and Tuesday evening) and our advisors have at their fingertips a wealth of knowledge and practical experience. They will make sure that you always get a best practice solution.

There is no need for your HR policies and other HR resources to be out of date. Our website is home to an excellent collection of model policies, toolkits, factsheets and other resources, such as letters and forms, that guide you through best practice in HR matters.

Did you know that PERS offers a HR policy review service? (This can be free of charge with some subscriptions). We let you know what changes must/ should be made to ensure that you are legally compliant/ adopt best practice.

To date we are most commonly asked to review organisations’ written statement of employment particulars (contract of employment.)

Promoting, sharing and developing opportunities for best employment practice

Funded by

Newsletter

Model policies

Don’t miss out on good employment law and HR advice

The PERS subscription service has taken off! The voluntary sector is taking up the PERS subscriber offer in increasing numbers, with many organisations now recognising that access to high quality employment law advice helps deliver their business objectives.

Our subscribers are using PERS not just to ‘fire fight’ and solve immediate, pressing prob-lems, but to help them continually improve their HR practices. It doesn’t matter if the or-ganisation is large or small, our support package can help provide solutions across the HR spectrum. PERS now provides a number of different ways in which everyone can get employment law

and HR advice – with some subscriptions being completely FREE. All subscribers get the

same high quality, professional information, advice and guidance. See P2 for details of our

various free or low cost options.

Our advice

Advice line Policy review

Staff Handbook Co

ntr

acts

2

PERS is looking to increase the capacity and skills of its Board of Trustees. If you are interested in the work that we do and feel that you can contribute to shap-ing and supporting our strategic direc-tion then we’d love to hear from you. If you’d like to know more about what we do and what being a board member entails, such as the commitment re-quired, then don’t hesitate to get in touch. Please email director@pers.org.uk or call 01924 428033

In this Issue When to use zero hour contracts and PERS support Legal Update – changes to flexible working, TUPE and right to work in UK ‘Grossing up’ misconduct – how not to handle a series of misdemeanours How to use trigger points in disability absence Home Working

At PERS we make sure that our advice and support is there when you need it. All of our clients get the same high quality services whether they are subscribers, ‘pay as you go’ users or funded customers. Some subscription services are FREE, and this is simply because funders, such Wakefield and Bradford Metropolitan District Councils (MDCs) have provided the resources necessary for us to do this. But even if your organisation does not qualify for free services, our annual subscription fees are still great value at less than £4 per week.

These are our main subscription packages:

Free: Disabled employers of Personal Assistants are able to access all of our employment law advice services for the next 30 months completely free of charge. This is thanks to a Big Lottery funded project. This service is available across the whole of Yorkshire and the Humber.

Free: Some organisations in

Wakefield and Bradford are able to get free annual subscriptions to PERS advice services. This is thanks to funding support from Wakefield and Bradford Metropolitan District Councils MDCs.

Annual paid subscriptions: For those who do not qualify for our free services PERS can offer very competitively priced annual subscriptions. These start at only £200 a year and for this organisations can get unlimited access to employment law and HR advice.

For those organisations and individuals seeking employment law advice then we also have a ‘pay as you go’ option.

PERS advice services provide HR solutions you can rely on.

See contact details on this page for more information on our free and paid for services or ring: 01924 428033.

We have submitted the first 6 month report to the funders, the Big Lottery for our project, Opening Doors. In this period we have been very successful in developing a full day employment law training course for advisors or those looking for an advice role in the community. Many, but not all, of these individuals already have a support or advice role with charities and we see this as a way to build up a disability Employment Rights support network. We are also adapting the course to deliver it to workers with direct contact with disabled people accessing direct payments for their care and support. Through them we hope to extend our free services for disabled people.

If your are interested in either

course, contact Anne on

anne@pers.org.uk

Promoting, sharing and developing opportunities for best employment practice

Our HR packages Fancy coming on board?

Contact details for PERS services

To find out about our:

subscription service: rehan@pers.org.uk

training opportunities: anne@pers.org.uk

consultancy service: admin@pers.org.uk

disabled peoples services: dave@pers.org.uk

Subscription

Free

Employers

of PAs

Wakefield

Pay as you go

Brad

ford

Opening Doors

3

The employment rights team provides a wide range of employment law and HR support to organisations and employees. We highlight recent projects here.

All staff have to be issued with written terms and conditions within 2 months of starting work. Legislation defines what should be in these contracts but it is up to the employer to determine what these are above statutory minimums. Zero hours contracts Zero hours contracts have received a lot of press coverage recently. They are seen by many as exploitive because the worker is not guaranteed any set hours or indeed any work at all, and yet s/he is often bound by an exclusivity clause (banned from working for another employer while under this contract). On the other hand, many employers see them as a solution to much needed staff flexibility. Labour’s reforms Ed Milliband announced recently that under Labour, workers on zero hours contracts would:

not be obliged to be available outside

agreed hours

be free to work for other employers

have a right to compensation if shifts

are cancelled at short notice

have clear terms and conditions

have the right to request a fixed

hours contract after six months regular

work with the same employer

have an automatic right to a fixed-

hours contract after 12 months with

the same employer. Legislation changes 2014 The Queen announced in her June speech that this government will address some of the above and indeed Vince Cable is preparing legislation to ban exclusivity clauses (25/6/14). Further employment law updates on page 4. PERS would suggest that before issuing a zero hours contract an employer should consider all other options open to them first, see PERS factsheet ‘Categories of worker.’ It may be that a temporary, part time contract would be more suited to the situation. If not, PERS would only support the use of zero hours contracts with the above provisos and in strictly controlled circumstances. PERS’ Contracts PERS has a number of model contracts of employment on its web site. One of

these is for Casual employment and is suited to irregular work. All contracts can be downloaded, adapted for your own use and then issued to employees, though there may be a small charge for non– subscribers. PERS can advise you on what type of contract to issue or work with you to ensure your contracts are either up to date or clarify terms and conditions (T&Cs). Case Study Recently, an organisation came to us with three issues: 1) The staff handbook had differences in some terms compared to those in the contract. 2) There were several terms that were rather loosely defined, such as ‘avoid evil of every kind’ that had to be clarified. 3) There were several notable omissions from the contract such as salary and date when continuous employment began. During April and May PERS worked with the organisation to clarify and define terms in the contract that were acceptable to the organisation and employees. The final version was agreed in June .

Issuing contracts of employment

On-site training courses available more details from anne@pers.org.uk or www.pers.org.uk

Training

Most of our training courses this autumn will be delivered in conjunction with our Bradford and Wakefield funders. As a result of this funding we will have some free places for local residents. Individuals not in these areas will be permitted to attend these events if there are any spare places, though a small charge will be made. Alternatively, we would be pleased to deliver any of our courses in house for you. Recent commissions include data protection, recruitment and selection, employment rights and managing conflict. For more information, and to check eligibility for free places, see our web site : www.pers.org.uk

Look out for our Autumn programme

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4

The following changes in employment legislation and practice are expected or have come into force this quarter. The extension to the right to request flexible working to all employees with 26 weeks' service became effective on 30th June, see April 2014 edition and ACAS guidelines at www.acas.org.uk/media/pdf/p/6/Handling-requests-to-work-flexibly-in-a-reasonable-manner-an-Acas-guide.pdf The guidelines look at developing a policy and advising on action if multiple requests are received. Look out for PERS new ‘Flexible Working and Time Off’ employment rights leaflet too.

TUPE time limit change Where TUPE applies the transferor (old employer) has to give the transferee (new employer) certain information prior to the transfer. As well as financial details, this includes employee liability information. The time limit for providing this information for TUPE transfers that occur after 1st May 2014 has been extended from 14 to 28 days before the date of the transfer itself. See http://tinyurl.com/nebarwt for new TUPE guidance and a useful flowchart can be found at http://www.acas.org.uk/media/pdf/m/t/Table-of-4-key-stages-TUPE-process.pdf

The Information Commission have produced a guide advising how to comply with the Data Protection Act and TUPE, see http://tiny.cc/su6aix Right to work in UK checks A new list of documents that an employer can check to prove that an employee has the right to work in UK was issued in May 2014. At the same time the Government issued new guidelines, see http://tinyurl.com/nckkb9j As well as listing the relevant documents, this has a section on how to check the validity of documents. The civil penalty for employing illegal workers was increased to £20,000 per illegal worker.

PERS redundancy toolkit is available on our web site http://www.pers.org.uk/Publications.aspx

Since 6th May most employees must submit an Early Conciliation (EC) form to ACAS prior to lodging an Employment Tribunal (ET) claim . See www.acas.org.uk/index.aspx?articleid=4779 for exemptions. The on-line notification form is available here, https://ec.acas.org.uk/ . On receipt of the completed form a conciliator will contact both parties to help them try and resolve the issue/ reach a settlement. If conciliation fails the (ex)- employee will be issued with a EC certificate which has a unique EC reference number. This number must be submitted with the ET claim form (ET1) or it will not be accepted. EC itself is free but taking part is not compulsory. It may help in unfair dismissal and workplace discrimination claims or disputes about payments of wages or redundancy entitlements or refusal of flexible working requests.

The new route to Employment Tribunal claims

2014 employment law changes

Dis

5

Legislation/ Case law Every quarter we prepare a round-up of

new legislation and the most important employment law cases from the courts.

Keep up to date with changing legislation through PERS ‘ services: telephone advice line, consultancy, training, health checks.

In our last edition we reported on a case where an Employment Tribunal (ET) ruled that an employee had to have an element of intention of serious wrong doing in order to justify dismissal on the grounds of gross misconduct. In this edition we look at another aspect of gross misconduct. In Beardwood v Ham, the question was, does a series of relatively minor misdemeanours amount to gross misconduct? Ham was accused of 4 offences and after an investigation the employer upheld 3 of these at a disciplinary hearing. Ham was

dismissed in her absence. She claimed unfair dismissal at ET. Procedure The Employment Tribunal stated that the dismissal was unfair as she was dismissed in her absence but this had been rectified at appeal with a full re-hearing. Genuine Belief The ET then ruled the disciplinary panel genuinely believed she had committed the offences and was guilty of the misconduct alleged. Fairness However, the ET then found the examples of

gross misconduct in the employer’s disciplinary policy did not match any of the four allegations and taken separately none of them constituted gross misconduct. Final decision The ET held that it was wrong for an employer to ‘gross up’ separate allegations of misconduct in order to make them constitute gross misconduct when put together. Hence the decision to dismiss Ham summarily for gross misconduct did not fall within the ‘band of reasonable responses’ and so was unfair.

‘Grossing Up’ Misconduct

How the employment rights team can help you As the disability case law above shows, employers have to take great care when con-templating dismissing a disabled employee. The process can be tricky but PERS can as-sist with advice on procedure, appropriate medical support and correspondence.

Disability absence and duty to make reasonable adjustments

In our October 2013 edition we reported on a case, HMRC Commissioners v Whiteley that considered two approaches in dealing with employees whose disability interacts with other medical complaints. The Employ-ment Appeal Tribunal (EAT) suggested the employer can apply a reasonable adjustment when assessing absence levels against trig-ger points (a level of absence at which man-agement take action). They should either a) not count the absences where the under-lying cause was the disability. Or b) subtract the expected disability absence from the annual total, then apply trigger points to the remaining absence levels.

However, a recent EAT decision (Griffiths)

ruled employers do not need to introduce

specific rules for implementing sickness ab-

sence policies for disabled staff. So where

does that leave us?

Both are EAT decisions so could be appealed.

Also, Griffiths did not argue indirect discrimi-

nation. A policy that treats all absences the

same may indirectly discriminate against

disabled people. This is because they are

likely to have more absences compared to

non-disabled people as some will be attribut-

able to the disability itself .Therefore take

care if following a capability procedure with

a disabled employee.

But the duty does not extend to associates

Hainsworth, a civilian employee working in Germany, requested a transfer back to the UK as the available school facilities could not cope with her daughter’s special needs. The Court of Appeal (CA), ruled that the duty to make a reasonable adjustment (under the Equality Act 2010) only applies where a pro-vision, criterion or practice puts a disabled employee or applicant at a substantial disad-vantage. Therefore Hainsworth’s daughter could not benefit from this provision.

Clearly the law could not help Hainsworth or her daughter in their case, but surely it would be best practice for an employer to consider what it could do in such circum-stances?

Matter resolved

The European Court of Justice (ECJ) ruled that commission earned by an employee must be included in their holiday pay. This case, British Gas v Lock, endorses an earlier principle stating that where a worker earns variable elements directly linked to pay they should re-ceive comparable rates when on leave and should not be fi-nancially disadvantaged when taking leave.

In brief

In another ECJ case, the ruling was surrogate mothers or adopters were not entitled to maternity pay or leave as the ‘mother’ had not been pregnant. But, look out for changes in UK law on this next April. Nor was it sex discrimina-tion as a man who enters a surrogacy arrangement would be treated in the same way.

Holidays Surrogacy

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Increase in home working

PERS Homeworking Service worked with Thornhill Community Academy (TCA) to run an Indian Cooking Course. The course ran from 1 April to 20 May 2014. Participants learnt how to cook authentic onion bhajis, chappatis, biryani, samosas and spring rolls, a selection of traditional meat and vegetarian curries, naan bread and puris amongst other tradition Indian foods. Thornhill Community Academy’s fantastic facilities were used and Carol Walker, community and partnerships leader said she had very much enjoyed seeing the learners participate and gain new skills. She added she would hope to work with PERS again in the future. Tutor Aysha Karolia’s in depth food knowledge and culinary skills added to the experience as she passed on her skills, cooking tips and hints to the learners ensuring they produced authentic traditional Indian food.

Debra, PERS Homeworking Development Officer said it was great to organise this Indian cooking course as people thoroughly enjoyed it and couldn't wait for each week. She added ‘One of the learners works from home so we are able to further support her with her home business. Working with TCA has been great and the whole experience has been a great example of successful community partnership working.’ All the participants enjoyed the course and some of the participant’s comments are below: Liz: 'Wonderful course, I have learned such a lot' Tracey: 'Absolutely fantastic course, sorry to see it end' Sarah: 'Sorry to see it end, loved every session' Alan: 'It has been very informative and worthwhile course and I enjoyed it immensely.

Home Working Service supports and develops entrepreneurial skills to grow home based business

If you want any further information please call the Home Working Service on 01924 428032

PERS works with award winning academy

A recent ONS survey finds home working has increased by 45% One in seven Britons works from home, offi-cial figures revealed recently (4th June 2014) This analysis of ‘home workers’ reveals how the number has surged over the past 16 years, jumping by nearly 45 per cent. Now over four million people work from home.

The study by the Office for National Statistics (ONS) said the proportion had increased sig-nificantly since 1998, when only one in ten people did so. Technological advances have driven the rise, allowing employees to keep in touch by email. But the figures also include entrepreneurs who have started a businesses from their home using their own PCs. Many home workers are in rural areas, a sign that they opted for home working as a life-style choice. Indeed west Somerset is the home working capital of the UK, where one in four people work from home. Of the 4.2million home workers, around half are between 25 and 49. It is also extremely common among the over-65s. Almost 4 in 10 over 65s with a job, work from home. John Philpott, from The Jobs Economist, said Britain’s ageing population was fuelling the trend, with more older people needing to work but preferring to do it from home. ‘They are seeking to avoid the daily commute and the stresses of office life’ he said.

Some of the attendees at an Indian Cooking Course at Thornhill Com-munity Academy May 2014.

0

5

10

15

20

25

30

Total In Work Home Workers Non Home Workers

Number of home workers v number of non home workers. Figures in millions.

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Enhance Your Beauty started out as a home beauty business just under a year ago offering a few beauty treatments. It all started when a friend told me about a free facial course funded by PERS. I enjoyed the hands on practical experience so much that I decided to enrol on the level 2 NVQ in Beauty Therapy. After completion, I decided I wanted to start my own beauty business from home due to family commitments so I contacted PERS for support, information and advice. Iram Hussain from PERS Home Working Service visited me at home. She left some very useful fact sheets on how to set up a business and a good marketing plan to promote my new business, amongst other relevant pieces of information. A Health and Safety risk assessment was also carried out for my work environment and I was provided with some useful equipment to minimise future health risks.

I was also given a great opportunity recently to attend a Social Media course funded again by PERS. This enabled me to set up Facebook, Twitter, Linked-in and YouTube accounts which have further

helped me promote my business using these social media platforms. Enhance Your Beauty has now taken a further leap and is now established at Glamour Hair & Beauty, 28 Northgate, Dewsbury, WF13 1DX. This has enabled me to be more accessible to clients. I also continue to work at home, giving people the option to visit the Town Centre Salon or my own home based salon . I can only thank PERS Home Working Service for their continued support and commitment to me as it gave me the confidence to grow my business from home to business premises. I now deliver a wide variety of treatments: Facials, Waxing, Manicures, Pedicures, Gel

Nails, Pearlys Professional Teeth Whitening, Shrinking Violet Inch Loss Wraps, Faith Lift Non-Surgical Face lift, Back Facials, Teen Facials, Full Body Exfoliation, Full Body Massage and Herbalife Healthy Nutrition Plan. I have also recently started Skinbase Microdermabrasion, which is an effective treatment for acne and acne scarring, pigmentation, blemishes, dull tired skin, stretch marks, fine lines/wrinkles and sun damage. Appointments can be now be booked

through the salon on 01924 430034 or

07411 450 310.

Shabana Bashir

Enhance your Beauty

If you want any further information please call the Home Working Service on 01924 428032

How the Home Working service can help you

The project is funded by Big Lottery under the Reaching Communities programme. It started in 2009 and is staffed by committed development officers who support individuals either doing paid work from home or who want to become self-employed working from home. The project also provides information and advice on home working, and spotting scams, as well as offering free health and safety risk assessments and equipment (subject to funding). If you are thinking of setting up a business from home or would like support in looking for work to do from home, please contact the PERS Home Working team on 01924 428032.

Business salon above Glamour

Home salon

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Nova supporting the VCS in Wakefield District Nova is the support agency for the

voluntary and community sector in

Wakefield District. We provide:

Online and face to face support for

groups and organisations including

our new tool Nova Assist which is

available in Wakefield exclusively to

Nova members.

A stronger voice for the voluntary and

community sector through the Nova

Assembly.

Opportunities for groups and

organisations to deliver contracts in

the statutory sector (Nova contracts.)

Assistance to groups recruiting and

retaining volunteers. We are the

access point in Wakefield for “Do It”

the national website that promotes

volunteering opportunities. We also

help run the Wakefield District

Volunteering Forum.

Our services are available to all voluntary

and community groups based in the

Wakefield District, and some of our

services are available to groups which

provide services in Wakefield District (but

who are not based there). We work with

organisations no matter how big or small

and regardless of whether they are a

registered charity or an informal group.

Our training sessions are held both at our

main office at 11 Upper York Street in

central Wakefield and also in various

venues throughout the community.

Watch out for news on our website or join

Nova if you are eligible by selecting the

“become a member” button at www.nova

-wd.org.uk. If you are not eligible to

become a member you can still hear

about our activities by signing up to our

regular newsletter.

Nova was formed in September 2013

out of a merger between the Wakefield

Wellbeing Consortium and VAWD.

We work in partnership with PERS, the

West Yorkshire Community Account-

ancy Service, Fit 4 Funding, Young

Lives and the Wakefield Community

Foundation so that we can provide a

service across all areas of need.

We’re always keen to hear about your

organisation and how we can help

you; if there are any courses, work-

shops or other services you’d like to

see us provide then do get in contact

at info@nova-wd.org.uk

Pay & Employment Rights Service

Unit 14, Batley Enterprise Centre

513 Bradford Road

West Yorkshire, WF17 8LL

01924 428 033

Contact details www.pers.org.uk

http://tinyurl. com.9yv5eo

admin@pers.org.uk

@PERSAdvice

PERS is a small charity committed to providing high quality services which are accessible and affordable to those most in need. To maintain most of our services we rely on grant funding and the generosity of donors who support our aims - this is increasingly difficult in the current financial climate, although our services are needed more than ever. We appreciate your donations large or small which enable us to continue the valuable work of our charity in promoting good employment practice.

Volunteer Forum stall at Wakefield Business Week