Top HR queries received in January

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February brings its fair share of notable dates including Valentine’s Day, Fairtrade Fortnight, Care Week and more. In addition to the daily operations of a business, these dates can present employers with further considerations than normal day-to-day activities entail. Find out more about the top five call topics below, or call your free, dedicated HR helpline on 0844 561 8149 to speak with a qualified consultant.

Redundancy

The Government has recently proposed a new law that will protect women from redundancy for six months after returning to work.

If the proposed law comes into force, women will get this protection from the point that they inform their employer they are pregnant until six months after returning from maternity leave. It may also apply to adoption and other parental leave.

Many businesses and consumer groups have applauded the proposal. However, others have questioned whether the law goes far enough. Some argue that discrimination due to pregnancy and maternity is already illegal, yet businesses simply ignore the law. So will extending the time period for protections that already exist make a difference to unfair working practices?

The Government launched a 10-week consultation on its proposal in January 2019, so hopefully we’ll have some answers later this year.

Currently, if your business is going through a redundancy process, then a woman on maternity leave has the right to first refusal of a suitable alternative vacancy before all other employees. But this stops when she returns to work.

Absence/Sickness

As a less than favourable day for employers, the first Monday in February is widely regarded as “National Sickie Day”. Having fallen on Monday 4 February this year, it is allegedly the day when staff are most likely to call in sick.

Unplanned absence is a major issue for organisations. A report by the Office for National Statistics revealed that approximately 137,000 million work days were lost due to sickness absence in 2016, with Acas calculating the annual cost to the UK economy at approximately £17 billion.

There are proven ways of efficiently monitoring and reducing sickness and absence, including written policies, back to work interviews, record management, morale and more, all of which you can find out more about via the helpline.

Contractual Terms

There is certainly no shortfall of case law where contractual terms are concerned, but the latest of these is deemed to be a pivotal case in determining the use of restrictive covenants.

This case could see thousands of employment contracts voided over their use of non-compete clauses. Experts have warned that the landmark case should serve to remind employers of how sensitive the wording of these clauses is. The Supreme Court is reviewing a previous Court of Appeal judgment that a six-month non-compete clause was unenforceable because it was too broad.

In Tillman v Egon Zehnder Ltd (2017) the Court of Appeal held that the clause, which prevented employees from being “concerned or interested in any business carried on in competition" after termination, was unreasonable because the time frame was too wide and it would bar former employees from being shareholders in competing businesses.

While we await the impact of the decision, employers are urged to review contractual terms and ensure that they are fit for the needs of the business.

Conduct

As Valentine’s Day celebrations linger, employers are reminded of the likelihood of office romances. In fact, a recent survey found that one in three employees admit to dating a co-worker at some stage in their career.

With this in mind, employers must handle these situations sensitively, and consider how best to manage any potential risks.

Unfortunately, employee relationships — especially those that are unsuccessful — can lead to disruption and loss of productivity in the workplace, decreased employee morale, claims of discrimination and harassment or even costly sexual harassment cases.

Setting specific rules, implementing appropriate policies, and providing staff training can all be productive ways of proactive management in this area.

TUPE

Five top tips for managing TUPE transfers:

  1. Look out for problems as early as possible

    Think about the practical steps you need to take as early as possible. You must conduct effective due diligence, which is “the care a reasonable person should take before entering into a legal agreement”, as early as possible.

  2. Information on employee liability

    The employees being transferred are entitled to receive employee liability information from the outgoing employer. If the information isn’t collated and updated properly, you could be liable to pay a hefty penalty, set as a minimum of £500 per transferee.

  3. Check who transfers

    You must look at the circumstances and only transfer employees who are assigned to the work activities, or employee group, in question.

  4. Get relevant employment information

    You must get full disclosure of pre-transfer promises for all transferring employees. You should also back this up with warranties and indemnities, which are used in law to reallocate risk between buyers and vendors.

  5. Your staff may leave

    If an employee chooses not to transfer, their employment terminates immediately, and they don’t need to serve a notice period. This could affect the new employer’s ability to enforce restrictive covenants, as key staff may leave.

Last reviewed 11 February 2019

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