Part 1 - What does TUPE mean?

In this episode of the podcast I bring you the first in a series of podcasts about the notoriously complicated area of law, The Transfer of Undertakings (Protection of Employment) Regulations.

In this episode you will learn:

• What TUPE means.
• When TUPE applies.
• Why it is a complicated area of law.
• What protection employees have on the transfer of their employment.
• What happens if an employee does not want to transfer.
• Who will transfer to a new employer.
• What additional protection from dismissal applies under the TUPE regulations.
• When changes can be made to transferring employees terms and conditions of employment.
• What recent changes to the rules will mean.

HR Best Practice Tip

The HR tip of the week is about protecting your business in the best possible way when working with consultants, contractors or self-employed persons. Do not leave your business vulnerable.

Podcast Awards 

I have been shortlisted in the category of best UK podcast and need your help to win at the first UK Podcast Awards in Manchester on the 12th September 2015. You can vote for the podcast by clicking here.

New Media Europe Conference - 12th - 13th September 2015 at The Midland Hotel, Manchester - If you are interested in attending you can get £100 off the ticket price by clicking here and using the code REAL.

(please note that this is an affiliate link which means I will receive a payment from the organiser if you book a ticket with this link. It will not cost you any more to book using this link & as stated you will in fact get £100 off)

What are the considerations for a fair conduct dismissal?

In this episode of the podcast I tell you about a recent case decided by the Court of Appeal where an employee who was dismissed for a breach of the employer's new Health and Safety rules after 35 years employment claimed that it was not fair and reasonable to dismiss him for the misconduct. The employee admitted what he had done but claimed that dismissal was not a reasonable sanction in all the circumstances. The case is Newbound v Thames Water Utilities Limited.

In this episode you will learn

• What an Employer should consider before dismissing an employee
• The test that an Employment Tribunal will apply in a case for unfair dismissal
• Why you should ensure that you apply consistent sanctions to employees with similar misconduct allegations
• Steps you can take to reduce the risk of a claim for unfair dismissal
• When you should seek advice for your business

HR Best Practice Tip

The HR tip of the week is about getting your legal status with workers, self-employed persons and employees correct at the outset. Including why you need to analyse the full relationship to establish employment status.

It is important that you have a relevant agreement in place with your staff to deal with any problems should things go wrong in the future.

Podcast references

To read the full Employment Appeal Tribunal judgement in the case of click here

New Media Europe Conference - 12th - 13th September 2015 at The Midland Hotel, Manchester - If you are interested in attending you can get £100 off the ticket price by clicking here and using the code REAL.

(please note that this is an affiliate link which means I will receive a payment from the organiser if you book a ticket with this link. It will not cost you any more to book using this link & as stated you will in fact get £100 off)

Please vote for this podcast in the first ever UK Podcast Awards you can vote once a day until the 31st July 2015 using this link here

Can employees on sick leave carry forward holiday and for how long?

In this episode of the podcast I tell you about a recent case in the Employment Appeal Tribunal where an employee who was dismissed after almost 4 years on sick leave made a claim for accrued but not taken holiday for the previous 4 years. The case is Plumb v Duncan Print Group Limited.

In this episode you will learn

• When an employee on sick leave accrues holiday
• The circumstances in which an employee on sick leave can carry over holiday to a new leave year
• How long an employee on sick leave can carry over holiday
• What you should be aware of regarding holiday and sickness absence
• What you can do to minimise issues
• When you should seek advice for your business

HR Best Practice Tip

The HR tip of the week is about ensuring that you can recover the costs of paying for external training or qualifications for your employees in the event that they leave your employment and take their skills elsewhere.

It is important that you have a relevant agreement in place with your employee to enable you to recover the training costs and that the agreement is in accordance with current legal guidance otherwise it will not be enforceable.

Podcast references

To read the full Employment Appeal Tribunal judgement in the case of  click here

New Media Europe Conference - 12th - 13th September 2015 at The Midland Hotel, Manchester  - If you are interested in attending you can get £100 off the ticket price by clicking here and using the code REAL.

(please note that this is an affiliate link which means I will receive a payment from the organiser if you book a ticket with this link. It will not cost you any more to book using this link & as stated you will in fact get £100 off)

Please vote for this podcast in the first ever UK Podcast Awards you can vote once a day until the 31st July 2015 using this link here

When can you dismiss an employee for failure to disclose misconduct in other employment?

In this episode of the podcast I tell you about a recent case in the Employment Appeal Tribunal where an employee was dismissed for failure to disclose misconduct after his employer found out about an allegation of misconduct in his other part-time job. The case is The Basildon Academies v Amadi.

In this episode you will learn

• When an employee is obliged to disclose their own misconduct
• Why it was unfair to dismiss an employee who failed to disclose allegations of misconduct
• What the employer in this case could have done differently to justify a fair dismissal
• What you can do to ensure your employees must disclose
• When you should seek advice for your business

HR Best Practice Tip

The HR tip of the week is about ensuring that your employment contracts are fit for purpose and the needs of your business. The featured case serves as a reminder that inadequate contracts can be costly for employers.

In particular with many regular changes to the law it is important to review at least annually. For example there has been a recent change to the use of zero hour contracts which makes it unlawful to include an exclusivity clause in a zero hour contract.

When is a Whistleblower protected from Dismissal & Detriment?

In this episode of the podcast I tell you about a recent case in the Employment Tribunal where an employee resigned in response to his concerns not being taken seriously by his employer and where he alleged he had received detrimental treatment. The case is Newman v Riverside Building Supplies.

In this episode you will learn

• What constitutes a protected disclosure for whistleblowing protection
• When a disclosure is in the public interest
• Why you should take employee concerns seriously
• When you should seek advice

HR Best Practice Tip

The HR tip of the week is about ensuring managers and supervisors are aware of the limits of their authority to dismiss and discipline employees.

Podcast references

Nurmohamed v Chesterton Global Limited (Trading as Chestertons)

In this episode of the podcast I bring you details of a recent case decided by the Employment Appeal Tribunal about unfair dismissal and the process of dismissal. The appeal in this case involved various questions, importantly including whether or not a disciplinary process should be suspended whilst a related grievance is investigated.

In this episode you will learn

• Whether a disciplinary procedure should be suspended pending a grievance outcome
• About the best practice for disciplinary procedures
• Why a delay in this case between decision and appeal led to a confusion of the issues
• When you should seek advice

HR Best Practice Tip

The HR tip of the week is about dealing with disciplinary appeals and procedures, and I recommend that, where possible, you have a senior member of staff who is not involved in the investigation or early stages of the disciplinary.

In this episode of the podcast I bring the focus back to constructive unfair dismissal and what employer's should do if they are faced with a resignation from an employee in a situation where there is a risk of a claim for constructive unfair dismissal.

In this episode you will learn

• What constructive unfair dismissal is and when a claim can arise
• Whether you can refuse to accept an employee's notice
• What you can do to prevent a claim
• How you can mitigate the situation and reduce compensation risk
• When you should seek advice

HR Best Practice Tip

The HR tip of the week is about dealing with situations swiftly to prevent escalation to a claim and ensuring your managers are able to identify likely disputes and issues.

An employee's right to be accompanied at a disciplinary and grievance meeting

In this episode of the podcast I tell you about a recent change to the ACAS code of practice on disciplinary and grievances which has been brought about by a decision of the employment appeal tribunal on the question of whether or not an employer can refuse to allow the employee's particular choice of companion.

In this episode you will learn

• What the Employment Appeal Tribunal said about the legal right to be accompanied
• What changes this made to the ACAS Code of Practice
• What it could cost an employer who refuses to allow an employee to be accompanied
• Who the employee can be accompanied by
• What an employer's options are with exercising their discretion over who can accompany an employee
• When it may be a reasonable adjustment to allow an employee to be accompanied by someone other than required by law
• When you should seek advice

HR Best Practice Tip

The HR tip of the week is about checking your employee or staff handbook to ensure any terms which are 'contractual' are clear and not likely to cause difficulty in the event that a dispute arises in the future.

Can an employer make changes to employment contracts without consent?

In this episode of the podcast I bring you a recent case dealing with changes to employment contracts as well as an overview of an employer's options if an employee refuses to agree to the changes.

In this episode you will learn

• When changes can be made without risk of breach of contract
• What the options are if an employee refuses changes to employment contracts
• Why the Employment Tribunals are reluctant to give employers wide discretion to make changes
• Why you should have a general variation clause in your employment contracts
• When to have a specific variation clause

HR Best Practice Tip

The HR tip of the week is about a service that I can provide to you to make your life much easier.

Constructive Dismissal

In this episode of the podcast I bring you an overview of the law regarding Constructive Unfair Dismissal as set out in the Employment Rights Act 1996.

In this episode you will learn

• What the difference is between Unfair Dismissal and Constructive Unfair Dismissal
• Why it is important to distinguish between the two types of unfair dismissal claims
• What the three things are that an employee will need to show to successfully claim constructive unfair dismissal
• How the Tribunal decide these claims
• What you should be aware of
• I also give you some examples of real cases that have been decided by the Employment Tribunal

HR Best Practice Tip

The HR tip of the week is a simple one, essentially do not delay unnecessarily when it comes to employee issues.

Employer questions answered

In this episode of the podcast the format is a bit different as I was recently invited to be a guest on the Business Insight show on my local community radio, Vectis Radio and during the show I answered a number of listener employer questions from business owners. Thanks to the generosity of Vectis Radio, Darren Fernando and Dale Howarth I have been able to share the audio from the show on this episode of the podcast.

The questions answered in this episode include….

• How to deal with the new Shared Parental Leave regulations.
• How to keep up to date with employment law as a small business.
• How to address a customer complaint about a staff member in a small team.
• What to do about an employee on maternity leave who probably won't return to work.
• What to do about auto enrolment and the new pension scheme.

How do you deal with staff who 'Vape' at work

In this episode of the Podcast I give you a summary of a recent Employment Tribunal case within which the issue of the use of e-cigarettes at work resulted in an employee facing disciplinary action and resigning from her employment. In this case the employee Ms Insley was seen using an e-cigarette at work. She was a catering assistant at a secondary school. When the Headmaster reported the matter to her employer, Accent Catering, they started disciplinary proceedings, stating that it could be gross misconduct.

Ms Insley resigned and claimed constructive unfair dismissal in the Employment Tribunal.

Particularly you will learn….

• What the current law is regarding e-cigarettes.
• The points to consider when looking at staff use of e-cigarettes at work. 
• Why you should review your smoking policy and notify staff of the changes fairly urgently.
• What the decision means for your business.
• Why Ms Insley perhaps would have been better to wait for decision from her employer before resigning.

HR Best Practice Tip

The HR tip of the week follows several issues that have been raised by my clients about managing poor performance of staff and the uncomfortable feeling of doing this.

What happens when an employee tweets offensive comments

In this episode of the Podcast I give you a summary of a recent Employment Appeal Tribunal case within which the issue of the misuse of an employees personal twitter account resulted in his dismissal for gross misconduct.  In this case the employee Mr Laws tweeted offensive messages (28 in total) on his personal account and although his account and the tweets were unrelated to work he was dismissed for gross misconduct by his employer Game Retail Limited.

Mr Laws was successful with his claim in the Employment Tribunal for unfair dismissal but the Employment Appeal Tribunal thought that the Tribunal had not applied the correct tests or considered the correct questions when deciding the case.

Particularly you will learn….

• What the correct test for reasonableness of a dismissal is.
• The points to consider when disciplining or dismissing an employee for social media comments.
• Precautions you should take when dealing with social media issues.
• What the decision means for your business.
• The background to the decision.

HR Best Practice Tip

The HR tip of the week follows the featured case and gives guidance on your social media policy, why you need one and what you should do to prevent issues.

Podcast references

Game Retail Limited v Mr C Laws

If you would like to read a full copy of the Judgement you can find a copy by clicking EAT full decision Game Retail Limited v Mr Laws

What happens when an employee is successful with their appeal

In this episode of the Podcast I give you a summary of a recent Employment Appeal Tribunal case within which the issue of reinstatement of an employee following a successful appeal against dismissal was discussed. In this case the employee Mrs Salmon was dismissed for gross misconduct by her employer Castlebeck Care Limited.

Mrs Salmon appealed against her dismissal and between her dismissal and her appeal taking place her former colleagues transferred under the TUPE regulations to employment with Danshell Healthcare Limited.

Although Mrs Salmon's appeal was apparently successful and the decision deemed 'unsafe' by Danshell's HR Director (who had transferred from Castlebeck Care) her employment was not reinstated and so she made a claim for unfair dismissal.

At the Employment Tribunal Mrs Salmon's claim for unfair dismissal was not allowed to continue against Danshell Healthcare as she was not an employee of Castlebeck immediately before the transfer to Danshell, which is a requirement of TUPE.

Mrs Salmon appealed against the decision and the Employment Appeal Tribunal considered whether her successful appeal against dismissal meant she had been reinstated and therefore was effectively an employee throughout.

Particularly you will learn….

• What happens when an employees employment transfers under TUPE regulations
• When an employees employment will be reinstated on appeal
• The importance of getting your procedures right
• What the decision means for your business
• The background to the decision

HR Best Practice Tip

The HR tip of the week follows the recruitment theme, giving guidance on how to answer a request for feedback from an unsuccessful candidate.

Podcast references

Salmon v (1) Castlebeck Care (Teesdale) Ltd (In Administration) (2) Danshell Healthcare Ltd and others

In this episode #13 of the Podcast I discuss the recent decision of the European Court of Justice (ECJ) which answers the question as to whether under European Law obesity is protected from discrimination. The case Karsten Kaltoft v Kommunemes Landsforening was referred from the Danish Courts to the ECJ to decide this issue.

If you listen to this episode of the Podcast you will understand what the decision actually means rather than the news, which has in my opinion has been hyped up to get attention for the headlines.

Particularly you will learn….

• Why the case was referred to the European Court of Justice
• The facts in this case
• What the decision means for law in the UK
• Whether obese employees can claim discrimination
• Whether you need to make reasonable adjustments for obese employees
• What steps you should take if you have obese employees

HR Best Practice Tip

My HR tip of the week deals with complying with data protection and making your life easier by having a good system for keeping and maintaining employee records.

Podcast references

To read more about the case click on this link Karsten Kaltoft v Kommunemes Landsforening 

To find out more about the HR software system which is guaranteed to save you time go to www.adviceforemployers.co.uk/hr-support

Shared Parental Leave

In this episode #12 of the Podcast I discuss the changes that became law on the 1st December 2014 in respect of the new rights to shared parental leave.  The changes will effect all employers and you could be receiving notices of shared parental leave from as early as January 2015 for children due to be born or adopted after the 5th April 2015.

The shared parental leave regime is fairly complicated with various different scenarios that could occur, and so it is important to be proactive and to understand your obligations as an employer as soon as possible. If you listen to this episode of the Podcast it will give you a good start.

Particularly you will learn….

• When the new regime actually begins.
• Why it has been introduced.
• What will happen to traditional maternity, adoption and paternity leave rights.
• Employee eligibility to take leave.
• Information that an employee is required to give.
• How shared parental leave pay will work.
• When the shared parental leave can be taken.
• Possible issues and problems that could arise.

HR Best Practice Tip

The HR tip of the week follows the recruitment theme, this week giving guidance on why you should ensure that interviewers in your organisation are trained in the legal pitfalls of asking the wrong interview questions.

In this episode of the Podcast I give you a summary of a recent Employment Appeal Tribunal case within which the issue of procedural irregularities with a disciplinary procedure were discussed. In this case the employee Mrs Old was dismissed in a career ending decision by her employer Palace Fields Primary Academy.

At the Employment Tribunal Mrs Old's claim for unfair dismissal was unsuccessful, however not all of the procedural issues were considered by the Employment Tribunal in reaching their decision.

This case also deals with the issue of whether the 'losing' employer should pay all or some of the fees that are required to lodge an appeal currently £400 to file an appeal and £1200 for the hearing fee.

Particularly you will learn….

• What evidence must be provided to an employee in a disciplinary situation
• When an employee should be allowed the opportunity to comment on evidence that is used in the decision making process
• The importance of carrying out a fair procedure in disciplinary issues
• What the decision means for your business
• The background to the decision
• Whether the 'losing' employer had to pay the Employment Appeal Tribunal fees

HR Best Practice Tip

The HR tip of the week follows the recruitment theme, giving guidance on how to get the recruitment process right.

Podcast references

Old v Palace Fields Primary Academy

To obtain a copy of the free Recruitment Leaflet and Checklist, sign up here.

Following the news this week you may be scratching your head and asking yourself how much should I pay during holidays to employees? This episode of the podcast deals with this question.

If you are an employer your attention will undoubtedly have been drawn to a recent decision from the Appeal Tribunal (4th November 2014). This decision came as a result of the following combined cases:

MR DAVID FULTON AND OTHERS v BEAR SCOTLAND LTD & OTHERS

MR K WOODS AND OTHER v SHERTEL (UK) LTD

MR LAW AND OTHERS v AMEC GROUP LTD

You can read the full judgement here

It is an important decision which all employers should be aware of and consideration should be given to the effect it will have on your business and employees.

Particularly you will learn….

• What the decision means for your business
• The background to the decision
• Whether you will have to pay back payments to employees

HR Best Practice Tip

The HR tip of the week follows the recruitment theme, giving guidance on how to get the recruitment process right.

Podcast references

Working Time Regulations 1998

Employment Rights Act 1996 

You can obtain a free copy of my Recruitment Fact Sheet and Checklist by sending an email to alison@alisoncolley.co.uk 

In this episode 9 of the HR & Employment Law Podcast I bring you a summary of a recent Employment Appeal Tribunal Case, Contract Bottlling Ltd v Cave and McNaughton. In which the Appeal Tribunal gave a very helpful judgement on the way in which deductions from unfair dismissal compensation should be dealt with.

The particular issue in this case involved a question over deductions from unfair dismissal compensation due to a principle known as Polkey.  

Particularly you will learn….

• What the key principle is when deciding unfair dismissal compensation
• The deductions that can be made from compensation
• What a ‘Polkey’ deduction is
• How a ‘Polkey’ deduction is and should be calculated

HR Best Practice Tip

The HR tip of the week is the first in a series of tips about dealing with recruitment. Recruiting staff is both costly and time consuming and therefore it is important that you get it right. This first tip will help your new staff to fit in and make them feel at ease quickly, ensuring that they become productive quickly and are less likely to leave.

Podcast references

In this episode I refer to the case of Contract Bottlling Ltd v Cave and McNaughton and you can read the full judgement here

In this episode 8 of the HR & Employment Law Podcast I bring you a summary of a recent Employment Appeal Tribunal Case, Mr Ridge v HM Land Registry. In which Mr Ridge pursued a claim against the Land Registry for their failure to include itemised details of deductions from his wages on his pay slips.

A rather surprising and unique case, and something which you may not be aware of as an employer. 

 

Particularly you will learn....

What information needs to be included on a payslip

What constitutes a deduction from wages

The consequences if you get things wrong.

HR Best Practice Tip

The HR tip of the week is a bit of a 'no-brainer' but one which many people easily forget on a day to day basis. 

Podcast references

In this episode I refer to the case of Mr Ridge v HM Land registry and you can read the full judgement here

You can find out more about my HR and legal support package for employers, Empirical Support' here

 

Another week of unmissable content if you are an employer or Human Resources professional. 

From the 1st October 2014 eligible employees and agency workers will be able to take unpaid time off work to accompany a pregnant woman to two antenatal appointments, and there will also be a protection from suffering a detriment or being dismissed in relation to time off to accompany a woman to prenatal appointments.

In this episode 7 of the Podcast I give you the run down on the changes and all you need to know about employee rights after the 1st October 2014.

Particularly you will learn....

Which employees qualify for the right to time off.

If you have to pay employees for the time off.

How much time they can have off.

The reasons behind the change in law.

The consequences if you get things wrong.

Answers to a couple of 'odd' scenario questions.

HR Best Practice Tip

This episode features the benefits of having an appraisal system and how to get started.

Podcast references

In this episode I refer to the other changes taking place on the 1st October 2014. You can read about these here

You can find out more about my HR and legal support package for employers, Empirical Support' here

In this episode of the podcast I give you a run down of the 8 key tests/facts to consider in order to determine if someone who works for you is an employee or self-employed person. 

For the purpose of employment rights it does not matter if the person is termed a self-employed person, or paid as a self-employed person, the law may decide otherwise. 

If you are in any doubt please listen to this podcast episode and run through the tests yourself. 

Also in this episode is the HR Top Tip, which is a cautionary tale about confidential correspondence. 

In this Episode 5 of the Employment Law and HR Podcast I bring you a summary of a recent Employment Appeal Tribunal case where the issue of reasonable adjustments was discussed and analysed.

The case is called ‘North Lancashire Teaching Primary Care NHS Trust v Howorth’ and the decision of the Appeal Tribunal was recently published.

The judgement provides a really useful update and helpful considerations about what an Employer must do if they have a disabled employee who is at a disadvantage because of their disability in accordance with the Equality Act.

Also in this episode is the HR best practice tip which is a really easy way to get your HR practices in line and prevent problems of inconsistency with your workforce. 

In this episode I give you a run down of a really useful change in the law from last year (2013) which is being utilised to great effect by many employers. 

The best practice tip is one that should not be missed, how to protect your business from departing employees. 

In this weeks' episode I tell you all about the introduction of Early Concilaition, what it means and what I think of it. What you need to know and what to consider if you have an employee dispute. 

This weeks' best practice tip is all about your Employee Handbook, what to do and how to keep it under control 

In this weeks' episode I tell you about a recent case regarding disciplinary issues and appeals. The case is mcmillan v airedale nhs foundation trust. 

The best practice tip also follows disciplinarys and why you need to have a good procedure in place. 

What do you need to know about an employees right to request flexible working?

In this first episode I bring you all of the information you need to know about the new right to request flexible working.

In particular you will learn

• What the law was before the change
• What it means practically
• How it will effect your business
• How to avoid running into difficulties

HR best practice tip

The best practice tip this week is about Contracts or Section 1 Statements as they are known to lawyer types!

Podcast references & helpful information

If you want to read full guidance on how the new right to request flexible working with work in practice have a look here

To download a FREE Flexible working policy that you can include in your own handbook or procedures click here