LAYING OFF EMPLOYEES

Q. I am a property developer, currently between projects. If I do not have any work for my employees for a month or so, can I make them redundant and then re-employ them?

A. If your business is suffering a temporary reduction in work, you may be able to lay-off the employees for that period.

Whether you can do this depends upon the terms of the contract of employment between the company and the relevant employees. Alternatively, it may be that the company recognises a trade union. If so, the issue of lay-off may be covered in these agreements.

If there is no express right to lay the employees off, then the employees may be prepared to agree to be laid off as an alternative to redundancy. There are strict rules about how long an employer can lay-off an employee without the employee being able to claim a redundancy payment from the company.

If the company has the right to lay off the employees without pay then they may be entitled to a statutory guarantee payment for a maximum of five days in any period of three months, subject to a maximum daily sum, which is currently £21.50. Once the guaranteed payment has run out, employees may be able to claim Jobseekers Allowance and should contact the local Jobcentre office about eligibility.

It is very important that you do not lay-off the employees until employment experts, such as our own Attwaters Jameson Hill Employment Law solicitors, review the contracts of employment - otherwise the company may be acting in breach of contract.

If you are in breach of contract, your employees could then claim the company has unlawfully withheld wages, and they would be able to sue for damages or bring a claim for constructive dismissal.

AGE DISCRIMINATION LEGISLATION

Q. I'm soon due to retire at the age of 65. Is there anything in the age discrimination legislation which may hold any surprises for me?

A. Your employer has to comply with a prescribed procedure, notifying you in writing, at least 6 months but no more than 12 months prior to your proposed retirement date, of the fact that you are due to retire and also informing you in writing of your right to ask to stay on beyond 65. The right to ask to stay on does not mean that your employer has to keep you on beyond 65, but it does mean that he has to seriously consider your request to do so, if that is what you want.

So, if you would like to continue beyond 65 write to your employer after receiving his letter stating you wish to continue working. If your employer does not send the first letter to you, you will be entitled to be compensated by a payment of 8 weeks wages, capped at a current maximum of £350 per week, i.e. you will become entitled to a payment of up to £2800. So it is worth checking that your employer has got the procedure right, because if he has not, there may be a windfall waiting for you.

PROBLEMS WITH ABSENCE

Q. I have members of staff who consistently take days off sick. What can I do?

A. The key to managing and minimising absence is to have a clear, consistent absence management policy - preferably outlined in your Employers Handbook.

Have a clear policy on reporting in when sick. Make it a requirement that anyone who is unable to attend work telephones you themselves, rather than through a third party, before a deadline each day to notify you that they are not coming to work. They should continue to contact you each day until they can produce a doctor's certificate. When they ring, ask them the nature of their illness and make a note of what they say on their personnel file.

Always have a quick return to work interview, asking them to tell you the cause of their absence. Write it down on a ‘return to work interview form’, date it and get them to sign it. The above will send a message to your workforce that you are seriously addressing the situation.

Also, speak to the employee in private and ask them what the problem is. If there is no acceptable explanation, you are within your rights to tell them that if they do not improve, the next step will be a disciplinary meeting, followed by disciplinary action if the behaviour still does not improve.

LONG TERM EMPLOYEE SICKNESS

Q. I have an employee who has been long term sick and now says she does not think she will be able to return to work. What shall I do next to legally terminate her employment?

A. Firstly, find out your employee’s current medical conditioner by seeking the employee's consent to obtain a report from her GP. Write to her explaining the need to obtain a report on her health and send the employee her rights under the Access to Medical Reports Act 1988 and a form for her to sign to confirm her consent.

Then, write to the GP and/or consultant. Set out in detail the employee's job role and the hours worked. Ask the doctor to explain what condition the employee is suffering from, when she is likely to be able to return to work and what adjustments the doctor believes you could make to the employee's role or hours to enable her to return to work.

If the doctor’s report confirms the employee cannot return to work to undertake their role, then consider whether the employee could be offered an alternative position more suitable to their state of health, or whether this current role could be adjusted to enable their return to work.

Next, write to the employee with a copy of the GP’s report and invite the employee to a meeting to discuss it and their employment. Advise the employee they have a right to be accompanied by a trade union representative or work colleague at the meeting. State that one outcome of the meeting may be that their employment is terminated. When holding the meeting, discuss any adjustments that could be made and any vacancies that may be more suitable for their given her state of health.

After consulting with the employee, you can proceed to terminate their employment in writing and offering them the right to appeal, only if it is clear that they cannot return to work.

DRUG TESTING IN THE WORK PLACE

Q. As an employer, am I able to introduce random drug and alcohol testing for my employees?

A. As an employer you do have a duty of care to ensure, so far as reasonably practicable, the health, safety and welfare at work of your employees.

If you are aware that an employee is under the influence of drink or drugs at work then you could be breaching your duty of care if you allow the employee to continue working. Depending upon whether your business is involved in a highly safety critical industry or not, will to a large extent determine whether you can introduce random testing. If you are not, then random testing is unlikely to be justified and testing should only be considered when you have a reasonable suspicion of drug or alcohol use that has an impact on safety.

Introduce a drugs and alcohol policy in which you reserve the right to test your employees. It is important to consider the least intrusive and most reliable method of testing. Even with this right within your policy you will be unable to force an employee to undertake a test, as it would be an assault.

Your policy should cover the consequences for employees if they refuse to take the test. It must also spell out what will happen if they take the test and the result is positive, will your approach be different, for example, if they have consumed the drugs or alcohol inside or outside work.

Remember that dependency upon alcohol or drugs is an illness and you should consider whether or not an employee is able to pursue medical or rehabilitative treatment.

CHANGES TO THE TUPE REGULATIONS - 31 JAN 2014

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 came into force on 31 January 2014. They amend the provisions relating to collective redundancies in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and make changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

TULRCA is amended to allow a transferee employer who is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days to elect to begin consulting representatives of affected employees, including transferring employees, about the proposed dismissals before the transfer takes place, provided the transferor agrees to it and is given written notice of the transferee’s intention.

Following consultation, the Government decided not to repeal the TUPE service provision change rules introduced in 2006. However, the Regulations clarify that for there to be a service provision change, the activities to be carried on after the transfer must be ‘fundamentally or essentially the same’ as those carried on before it took place.

The previous restrictions on varying the terms and conditions of employment contracts when there is a TUPE transfer are relaxed so as to allow changes to be negotiated where the terms of the contract expressly permit the employer to make such a variation.

Under TUPE, a dismissal for a reason connected with the transfer of a business or undertaking is automatically unfair unless the employer can show that the reason was ‘an economic, technical or organisational reason entailing changes in the workforce’. The Regulations amend the meaning of ‘changes in the workforce’ to include a change to the place where employees are employed to carry out business for their employer, thereby preventing genuine place of work redundancies from being automatically unfair.

Where the contracts of employment of employees who have transferred under TUPE incorporate provisions of collective agreements as may be agreed from time to time, such agreements negotiated and adopted after the date of transfer are not enforceable against the new employer where the latter does not have the possibility of participating in the negotiation process.

In addition, the Regulations introduce a limit of one year during which collective agreements negotiated pre-transfer continue to bind transferees. After that time, terms of employment will be able to be renegotiated provided the new terms are no less favourable to employees than those which applied immediately before the variation.

The Regulations also extend the minimum time period for complying with the rules regarding the provision of employee liability information from 14 to 28 days prior to the date of transfer where the transfer takes place on or after 1 May 2014. In addition, businesses with fewer than 10 employees will be allowed to inform and consult directly employees affected by the transfer when there is neither a recognised independent trade union in place nor any existing appropriate representatives. This exception applies in respect of transfers which take place on or after 31 July 2014.

The Department for Business, Innovation and Skills has published a guide to the TUPE Regulations as amended.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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