Editorial
Although this is our Employment Newsletter I like to let you know about other things you may find interesting or helpful. One of those is our new “Will Quiz.” Take a few moments (there are only 5 questions) find out if you are a “Will Wizard”; and get a copy of our “10 Tips on Making the Will you need”. In the employment field plenty has been happening in the last few months so I can only touch on a few points so here we go.
References
In my blog at the end of July I made some comments about giving references. If you are giving someone a reference be careful what you say. Nowadays employers are inclined to give “tomb stone” reference, i.e. just say the dates an employee worked for them. Recently a long serving senior police officer was given such a reference when he resigned to go to work for a regulatory body. What wasn’t said is that he was under disciplinary review at the time and had been on sick leave for a considerable period. Should this have been disclosed? He claimed the disciplinary process was victimisation for raising a certain matter. A review by the police thought more should be said particularly as he was applying for a job in a regulatory organisation. They issued a second reference sending it to the officer for comment first. He objected partly because he had been promised that the basic reference would be given and the disciplinary matter would end. He also objected as it disclosed what he considered to be sensitive personal data. The court considered that the police had a public duty to send the second reference but that in this case was outweighed by its agreement to send the basic one and the employees Data Protection Rights. Although most employers will not be faced with such complicated issues they should be aware of their duties and the risks with references they give and receive. So what should an employer bear in mind?
Giving references
- An employer is not normally obliged to give a reference.
- Make sure that an employee does want you to provide a reference when it is requested by a third party. Get the individuals agreement in writing.
- You don’t have to show the employee the reference but once it’s given to the third party the employee has the right to request it from them.
- If do give a reference you owe duty to the former employee and the new employer to be fair and reasonable accurate and not misleading.
- A reference is likely to include personal data including sensitive personal data e.g. health/illness.
- If part of a deal through ACAS or as a settlement agreement make sure that the reference states that if later information is found you have the right to correct it. But remember that is later information, not what you already know.
Getting references
So often I see an employer find the employee of their dreams and offer a job not subject to references. Later their dream employee becomes a nightmare. So employers should:-
- Make job offers subject to references.
- Get it in writing from the job applicant who you can get a reference from.
- Be aware that the applicant can ask you for a copy of any reference you obtain.
- Data protection rights are likely to allow the applicant to request copies of notes of any oral reference.
- Consider whether you have a right or duty to make a DBS (formerly CRB) check and what you do about the result. For most jobs an employer doesn’t have this right.
- If you ask about criminal convictions be aware of what you can require an employee to disclose, what you can do about it and what you can do if the employee doesn’t tell the truth.
Fees put applicants off
Not a big surprise. The introduction of fees for making claims in the Employment Tribunal seems to have deterred quite a lot of applicants. Statistics can be viewed in lots of different ways but at the moment the drop in cases may be somewhere between 25% and 79%. Some of the reasons for difference seem to be regional and others depend on what type of claim you are looking at. Some have hailed the reduction as the end of the speculative claims. However we don’t know yet whether this is reflected in the number of cases that are successful for the employee i.e. have the fees really only weeded out weaker cases or have they just affected poorer former employees. On the other hand are really poor former employees still making claims and it is the middle income employees who have stopped claiming. After all fees can be waived or reduced for those on very low incomes/with low savings. For the city banker the fees are a drop in the ocean. Those in the middle will inevitably find it harder.
So for the employers amongst you is it now safer to sack your staff unfairly? Maybe statistically it is but do you want to take that risk? And remember if you are the employer on the end of a successful claim you will probably have to pick up the tribunal costs too.
We will keep an eye on the statistics and keep you updated.
Forced Work?
There has been a lot of talk lately about Zero hours contracts. Can an employer fairly take someone on and then give them no work to do (and so not pay them). In essence that is what a zero hours contract provides. When an employer has lots of work it has a ready and willing workforce to provide services when necessary. From the employees point of view this can give flexibility but can lead to a lot of uncertainty. I last talked about this in my blog in mid-September.
Government is keen to give employees some more protection without employers losing flexibility particularly in hard times. However the underlying idea is that employees can’t be forced to work if they don’t want to and employers don’t have to offer work. Interestingly in the summer there have been two cases about employees being prevented from leaving their employer when they want to. On the face of it this seems unfair and it is generally against public policy to restrain someone from going elsewhere to earn their living. In Mr Munro’s case he had a 12 month notice period but was keen to leave his work as Chief Financial Officer after a couple of months to go and work for a rival. The employer wasn’t happy so Mr Munro then claimed that he had been “constructively dismissed” as the management structure had changed. If there is a constructive dismissal the employee is entitled to leave without notice and is not bound by restrictive covenants. In practice the court decided that there had been no fundamental breach by the employer and the employee had wanted to leave to get a better job (financially and otherwise more attractive). Despite the breakdown in relationship that must have occurred between the employer and employee the judge decided that the employer genuinely wanted the employee to stay and actually do work until the end of year accounts were complete and in any event were willing to pay him to the end of his notice. If he was willing to work, fine he would be paid, if not he would be at home doing nothing but at least not working for the new employer.
In the second case Mr Rodgers a trader was headhunted. Again he had a 12 month notice period and wanted to go sooner. He walked out but his employer claimed he was on unauthorised leave as they wanted to keep his skills or at least arrange a phased handover. However they stopped paying him pending his return. Mr Rodgers claimed he was entitled to leave as they had now stopped paying him. Which came first; the chicken or the egg? In that case the judge concluded that the employer wanted Mr Rodgers back and so his employment didn’t end when he walked out or when they stopped paying him. In practice the final decision kept Mr Rodgers as an employee for half the notice period but free to do some other work during that time. After he left it restricted him for a further period from working for the rival. Overall the courts won’t force an employee to work but may stop a misbehaving employee from benefiting and damaging their employers’ business.
Wages set to rise.
As usual at this time of year the National Minimum Wage increased from 1 October 2014 to
£6.50 for workers aged 21 and over
£5.13 18 – aged 20 years
£3.79 for employees aged 16-17, who are above school leaving age but under 18
£2.73 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
Our Spring Newsletter looked at employers not paying the National Minimum Wage. Interestingly in the summer 25 more employers have been named and shamed over not paying the national minimum wage. But remember it isn’t always easy to see if the minimum is being met.
Edit 41. This newsletter looks at new cases and employment related matters, which are likely to be of interest to many. However specialist advice should be obtained before taking or refraining from taking action based on comments in this newsletter, which is only intended as a brief note. For more information or if you have specific concerns phone me on 01233 714055 or e-mail kirsten@moon-and-co.co.uk. To unsubscribe to our newsletters e-mail kirsten@moon-and-co.co.uk