If you employ staff here are 10 things you should at least be aware of:
Contracts of employment
A written statement of employment particulars must be issued to new employees within two months specifying certain key information e.g. pay, hours and place of work.
Changing terms and conditions
Whilst you can change T&Cs, care needs to be taken. Making a fundamental change such as completely altering someone’s duties could be constructive dismissal. Therefore, for significant changes you require a sound business reason and must consult with staff.
Discrimination
Discrimination on grounds of sex, race, disability, sexual orientation, religion or belief or age is unlawful. Discrimination can occur at any point from recruitment until retirement. Employment Tribunals will check if you have an equal opportunities policy and adopt it. For disabled staff you may be obliged to make adjustments to someone’s job where arrangements place the disabled person at a substantial disadvantage compared to able bodied workers. Compensation for discrimination is potentially unlimited.
Dismissal
Every year about half of all claims to the Employment Tribunal are for unfair dismissal. Dismissed employees are entitled to the greater of their contractual or statutory notice entitlement (unless correctly dismissed for gross misconduct). Employees with 51 weeks’ service can bring unfair dismissal claims. You must show you had a potentially fair reason to dismiss (e.g. redundancy) and dismissal was reasonable in the circumstances. The dismissal must follow a minimum statutory procedure although the current procedure is to be replaced with a less complex process probably next year. Maximum compensation for unfair dismissal is generally £72,900.
Equal pay
A woman doing the same job as a man is entitled to receive the same pay and benefits. However, it will not be discriminatory to pay a woman less than a man where the difference in pay is not gender but a genuine material factor such as greater experience and skill.
Family friendly rights
This includes maternity, paternity and adoption pay and leave, parental leave and time off for dependants and flexible working requests. Maternity pay is now 39 weeks and the Government want to allow women to transfer some of their maternity leave to their partner. How this will work in practice has yet to be explained. Flexible working (e.g. switching to part-time or home working) can be requested by those with children under 6 or disabled children under 18 or for an adult they care for.
Holidays
Employees are entitled to 4.8 weeks paid holiday (5.6 weeks from April 2009). Bank holidays can be included within this. Employers can postpone holiday requests where inconvenient to the business. Statutory leave cannot be carried forward to the following year. Employees must be paid in lieu of outstanding statutory holiday on termination.
Redundancy
Redundancy is a potentially fair reason for dismissal but care must be taken especially where selection issues arise. Selection criteria should be objective. Many traditional criteria like “last in, first out” may be age-discriminatory. Employees with 2 years+ service are entitled to redundancy pay (up to £9,900).
TUPE
If you buy or sell a business with employees or are involved in outsourcing then you will probably be affected by TUPE: the Transfer of Undertakings (Protection of Employment) Regulations 2006. These preserve employees' terms and conditions when a business is transferred to a new employer. Any dismissals because of a transfer may be unfair. Affected employees have rights to information and to be consulted about any measures to be taken affecting them.
Working time
The limit on maximum average working week is 48 hours although UK employees can still opt out of this right. Employees are entitled to 20 minutes rest after 6 hours’ work, 11 hours rest each day and a day off each week.
Tuesday, November 18, 2008
Wednesday, November 12, 2008
Co-habitation: Changing Times
Figures show that by 2031 one in four of us will be doing it. One in six of us do it now. Cohabit. The law governing cohabitation is misunderstood, complex, and often unjust, but this autumn will see an attempt to end the old uncertainties and bring the law in England and Wales right in line with society’s current trends.
Human Rights lawyer Lord Lester of Herne Hill QC will introduce a Private Member’s Bill in the House of Lords which could ultimately benefit unmarried cohabiting couples and their children.
It comes as a shock when cohabitees realise that the idea of a Common Law marriage is the stuff of myth. By then it’s often too late. Cohabitation Agreement? Well, it’s just not very romantic is it? Living together does not give an automatic right to a share in the home as in the context of a divorce. Maintenance? Pension Share? Forget it.
The current starting point is to look at contributions towards the house, its contents and living expenses. Sacrifices one party may have made for the relationship which are of a non-financial nature can also be relevant as well as the parties’ intentions and representations made to each other. These can be the very greyest of grey areas.
In a worst case scenario a cohabitee could find that having contributed to the purchase of the home, the mortgage and the bills, and having given up career and other property opportunities to live with a loved one, when the relationship breaks down they are left with nothing.
If it’s already too late you may need a solicitor to advise you of your relative entitlements in the hope that a sensible and fair apportionment can be agreed. If not, you will be at the mercy of the Courts!
Things may be changing however. Lord Lester’s Bill follows on from the Law Commission’s report on Cohabitation published in July 2007.
It is thought the Bill will include recommendations made in the Commission’s report, such as the idea that remedies for financial relief should be available on separation if the couple satisfy certain requirements. These may include the birth of a child, and the fact that the couple have lived together for a “minimum duration” of between two and five years.
The Commission suggested that the Applicant would also need to show that they had “made qualifying contributions to the parties’ relationship which had given rise to certain enduring consequences at the point of separation”. It is clear that this requirement may need to be more precisely defined in the impending Bill.
It will certainly be interesting over the coming months to see what sort of reception the Bill has in the Lords. If an MP in the Commons supports the Bill it will continue in the Commons, but will not have priority over Bills introduced in the Commons and will not therefore have much time devoted to it. If the Bill ultimately sees a change in the law will it do away with all the old injustices and uncertainties? Or will it create a whole tranche of new ones through retrospective adjustment of parties’ legal rights and obligations to one another where they have not married for one reason or another? Only time will tell.
In the meantime, entering into a Cohabitation Agreement and a Deed of Trust if property is involved may avoid expensive problems later. Here at Morrisons our experience is such that we can help with these documents with a view to minimising uncertainties in the future.
Human Rights lawyer Lord Lester of Herne Hill QC will introduce a Private Member’s Bill in the House of Lords which could ultimately benefit unmarried cohabiting couples and their children.
It comes as a shock when cohabitees realise that the idea of a Common Law marriage is the stuff of myth. By then it’s often too late. Cohabitation Agreement? Well, it’s just not very romantic is it? Living together does not give an automatic right to a share in the home as in the context of a divorce. Maintenance? Pension Share? Forget it.
The current starting point is to look at contributions towards the house, its contents and living expenses. Sacrifices one party may have made for the relationship which are of a non-financial nature can also be relevant as well as the parties’ intentions and representations made to each other. These can be the very greyest of grey areas.
In a worst case scenario a cohabitee could find that having contributed to the purchase of the home, the mortgage and the bills, and having given up career and other property opportunities to live with a loved one, when the relationship breaks down they are left with nothing.
If it’s already too late you may need a solicitor to advise you of your relative entitlements in the hope that a sensible and fair apportionment can be agreed. If not, you will be at the mercy of the Courts!
Things may be changing however. Lord Lester’s Bill follows on from the Law Commission’s report on Cohabitation published in July 2007.
It is thought the Bill will include recommendations made in the Commission’s report, such as the idea that remedies for financial relief should be available on separation if the couple satisfy certain requirements. These may include the birth of a child, and the fact that the couple have lived together for a “minimum duration” of between two and five years.
The Commission suggested that the Applicant would also need to show that they had “made qualifying contributions to the parties’ relationship which had given rise to certain enduring consequences at the point of separation”. It is clear that this requirement may need to be more precisely defined in the impending Bill.
It will certainly be interesting over the coming months to see what sort of reception the Bill has in the Lords. If an MP in the Commons supports the Bill it will continue in the Commons, but will not have priority over Bills introduced in the Commons and will not therefore have much time devoted to it. If the Bill ultimately sees a change in the law will it do away with all the old injustices and uncertainties? Or will it create a whole tranche of new ones through retrospective adjustment of parties’ legal rights and obligations to one another where they have not married for one reason or another? Only time will tell.
In the meantime, entering into a Cohabitation Agreement and a Deed of Trust if property is involved may avoid expensive problems later. Here at Morrisons our experience is such that we can help with these documents with a view to minimising uncertainties in the future.
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