Changes to law for Mobile Workers

Recent European case law developments have ruled that, for mobile workers, the time spent travelling to and from their first and last job of the day counts as ‘working time’.

What counts as working time for mobile workers?

• The time spent travelling to the first job and last job of the day will now count as ‘working time’ for mobile workers.
• Mobile workers are those who do not have a fixed office base i.e. possible sales representatives, mobile technicians, mobile care workers etc.
• The ruling has been designed to protect the safety and health of workers in terms of their rest periods. Travelling time from their home to a customer’s premises, and vice versa, is now classed as ‘time at the disposal of the employer’. 

The Ruling - Court of Justice of the European Union – Federacion de Servicios Privados del sindicato Comisiones obreras Vs Tyco Integrated Security (2015)

This case emerged from a group of technicians employed to install and maintain security equipment in various locations in Spain.  The company, Tyco, had decided to close their regional offices and operate from a remote central office in Milan giving the workers the use of company vehicles. On the eve of their working day, the workers would be advised of their scheduled appointments and geographic locations. Tyco had calculated working time as only the time spent installing and servicing the security units at the customer premises. However, the workers argued that the time spent travelling to a customer’s premises, often in excess of two or three hours, did not count as rest periods and were therefore ‘working’.

The ruling made it clear that, for mobile workers with no fixed place of work, the time spent travelling between their homes and the premises of the first and last customers, as designated by their employer, constituted working time.

What are the considerations for your business?

• Travel time should be factored into a worker’s working time and contracted hours (if they do not have a fixed place of work).
• Careful planning should be given to the workers schedule to minimise the travelling time (and distance) at the start and end of the day.
• If company vehicles are collected from a fixed office/depot address at the start and end of the day then this is unaffected and does not constitute working time.

If you would like to discuss this further please do not hesitate to contact a member of the Tamar HR team. 

English skills support for Employees

Communication is an essential aspect within any business and language is the foundation of this. In this edition we have spoken to Debbie Rogers from the company: The English Teacher to discuss how the English courses she delivers, improves both business and staff prospects. This may be particularly useful for any companies who employ individuals where English is not their first language.

The English Teacher works with a variety of private companies and public sector industries to enhance their employees’ English skills. They design each course to clients’ specific needs and the requirements of the students and four skills are covered (reading, writing, speaking and listening). The English company can also enrol students for nationally recognised Functional Skills qualifications if desired. Special attention is paid to pronunciation and conversation.

There are a number of benefits in investing in English skills development and feedback shows that introducing English tuition promotes peer bonding and produces cohesive and focused teams. Students have found that their chances of career progression are greater with a good standard of spoken and written English and customer relations and in house communication improved immeasurably.

All course materials and resources are supplied free of charge, as is a placement level test. Each student is given a login for the website and they have their own resources page where exercises and activities will be placed. English support continues even after the course is ended and work will be regularly added to the resources section.

For more information, please contact Tamar HR, visit the English Teacher website – www.the-english-teacher.co.uk or email : debbie@the-english-teacher.co.uk.

Employment Law Update

Employment Law Update 

Employment Law Update

There are a number of employment law changes which take affect from 1^st October and a few recent developments. In addition to these, we have outlined changes which are approaching in 2016.

National Minimum Wage Increase

Just a quick reminder that as of 1^st October 2015, the national minimum wage for people over 21 will go up from £6.50ph to £6.70ph.

Age	From October 2015	2014-2015 rates
21 & Over	£6.70	£6.50
18 to 20	£5.30	£5.13
16-17	£3.87	£3.79
Apprentices *	£3.30	£2.73

*Apprentices (16-18 years and those aged 19 or over in their first year)

Implementation date: 1^st October 2015

Enforcement of the National Minimum Wage

From 1^st October 2015, tougher laws will be in force by the government for any companies who are not paying the national minimum wage to their workers.  Penalties have been doubled to 200% of the arrears owed up to a maximum of £20,000 per worker.  A new department in HMRC will be set up to identify and enforce the law on any employers that pay below the minimum wage.

Implementation date: 1^st October 2015

Ban on Exclusivity Clauses in Zero Hour Contracts

Just a quick reminder, since 26^th May 2015 employers are unable to enforce exclusivity on workers who are employed under a zero hours contract. This will allow any workers under a zero hours contract to work for another employer and thus giving them more control over their working hours and income. The ban on enforcing exclusivity is seen to redress poor employment practices and give the employee more freedom to boost their income. If you would like to discuss this with Tamar HR please do not hesitate to contact us.

Implementation date: this change was introduced on 26^th May 2015

Fit for Work Service – Referrals and Tax Exemption

Since 8^th September 2015, the government’s Fit for Work scheme was rolled out across England and Wales. The focus is to provide support for employees to get back to work after a period of long term sickness absence.  The scheme will be hugely beneficial for small and medium-sized businesses (SMEs) with little or no access to occupational health support.  To make a referral, the employee must have had, or be expected to have, more than four weeks of sickness absence. A £500 tax exemption (per employee, per year) will be granted towards the cost of medical treatment as recommended by the Fit for Work scheme or relevant health professional. The helpline number for free Fit for Work advice is 0800 032 6235, if you would like to discuss this further please contact one of the team at Tamar HR.

Implementation date: 8^th September 2015

Future Changes to start preparing for:

The New National Living Wage (April 2016)

From April 2016, a National Living Wage will be introduced to all workers over the age of 25. The new rate will be £7.20 per hour. This new rate is being implemented to drive the government initiative of a higher pay, lower welfare state. This is part of a long term programme aimed to increase the National Living Wage to £9.00 by 2020. We appreciate this will have a significant impact  on staffing budgets for clients who employ staff on the current minimum wage.  The changes are likely to impact more on businesses within retail, hospitality and the care industry.  It also has the potential to impact on the difference between the lowest paid workers in your business and the first level of supervisory role.  Given the significant impact of these changes it is timely to review your staffing structures in advance of these changes.    Tamar HR will be pleased to undertake a full review so that you are planning ahead and building capability ahead of the full implementation of the National Living Wage between now and 2020.

Tribunal Fees Set to Continue

There has been a decline in the number of employment tribunal claims since the introduction of Tribunal Claim fees in July 2013, Unison recently lost a further appeal for the fees to be abolished.  The cost of bringing an employment tribunal claim can vary from £390 to £1200 depending on the type of claim.  You will be aware that ACAS offer an ‘early conciliation’ service to try and avoid Tribunal claims, where both parties agree to engage in settlement discussions.  Early conciliation rates have increased which is good news to employers and employees alike. Early conciliation can be far less costly, time consuming and stressful with the main aim of settling disputes earlier than going to Tribunal. 

Shared Parental Leave

Family-friendly leave entitlements can become complex. 

Shared Parental Leave came into force at the end of 2014 and provides parents with more flexibility in regards to how they take leave during the first year of their child’s life/adoption and will allow them to be on leave at the same time for more than 2 weeks. However, the new entitlements are not straightforward and in this article we look at what this means for employers.

What is the current entitlement?

Workers in the UK are entitled to 28 days (5.6 weeks) a year paid holiday, if they work full time for five days a week. Part-time workers are entitled to the same level of holiday pro rata. Self-employed workers are not entitled to any annual leave. If you leave your job with holiday leave outstanding, your employer should pay this back to you. The UK Government states that employers should use basic pay to calculate how much a worker earns whilst taking annual leave. This was defined in the Working Time Regulations Act of 1998 and means that commission and overtime are not included when calculating holiday pay.

The is an issue however, there is discrepancy between the UK and the European Working Time Directive, as the latter doesn’t specify how holiday pay should be calculated. Up until now, the UK Government has interpreted the directive as saying that holiday pay should be an employee’s basic rate of pay, therefore not including regular overtime. 

How do the new entitlements affect employers?

This will mean new policies, new forms, more administration and less certainty when members of staff are expecting a child. Employers who currently offer enhanced maternity schemes should consider treating Shared Parental Leave in the same way. The position is currently unclear as to whether it would be sex discrimination not to do so and this has lead to some employers are already considering doing away with enhanced schemes.

Will it affect the current maternity, paternity and adoption leave provisions?

For eligible parents, they will need “opt-in” so the current maternity and adoption leave provisions will apply unless the parents choose to take Shared Parental Leave. The 2 weeks ordinary paternity leave will remain available to fathers/partners, but they will no longer have the option to take additional paternity leave. This is unlikely to upset many as less than 1% of those who could have taken it, actually took it.

Who decides how the leave is allocated?

It will be up to the parents to choose how they divide the leave which includes up to 50 weeks of Shared Parental Leave and 37 weeks of Shared Parental Pay.

The existing regulation which requires the mother to still have 2 weeks of compulsory maternity will still apply.

Who is entitled to Shared Parental Leave?

The scheme is not only available to families where both parents are employed but also to those where one parent is employed and the other is classed as “economically active”, which only requires a low level of earnings.

How does shared parental leave work?

To take shared parental leave, the mother would need to provide a “curtailment notice” giving her employer 8 weeks’ notice of the end of her maternity leave, she would also have to provide a “notice of entitlement” to prove that she is entitled to Shared Parental Leave along with an indication of when she would like to take her share of the Shared Parental Leave.

The father/partner must also provide notice of entitlement and intention to take Shared Parental Leave on his/her employer.

It is important that these notices contain several details along with declarations from each parent confirming, among many other points that they agree to the amount of leave that the other parent is taking.

Both parents would then provide their employer with details of the other parent’s employer and also standard evidence of entitlement such as a birth certificate or adoption papers.

When the parents have confirmed their plans to take their share of the entitlement, they have to provide a period of leave notice to their employer, with at least 8 weeks’ notice before the start of the first period of leave.

How can leave be taken?

Leave can be taken in a single block or in multiple blocks of complete weeks. If one block of leave has been requested, then the employer must agree. If multiple periods of leave have been requested then the employer will have two weeks to either agree, propose an alternative or refuse the request. If the request for multiple periods of leave is refused then the parent has to be allowed to take their leave in a single block.



If you would like to know more about shared parental leave, please don’t hesitate to contact one of the team here at Tamar HR.

How will the new Holiday Pay Ruling affect me?

What were the cases about?

Earlier this year, this discrepancy between British and EU law was highlighted when a British Gas worker took his case to the European Court of Justice. His normal pay was made up of basic pay and sales commission, yet he was only receiving his basic pay whilst on holiday. 

Additionally, employees from the companies Bear Scotland, Amec and Hertel all appeared before the UK employment appeal tribunal, questioning their holiday payments too. They called for their holiday pay to include overtime and commission – which is in line with their average earnings.

What was the decision?

The tribunal ruled in the employees’ favour, deciding that article 7 of the Working Time Directive meant that in these cases, overtime was part of the workers' “normal” earnings and therefore should be included when calculating holiday pay.

The ruling has set a precedent for how employers’ holiday pay should now be calculated, and with millions of workers in the UK regularly working paid overtime, it’s a change that could have a massive effect.

What does this mean?

The ruling will not result in an immediate payment of years of missed pay. The Employment Appeal Tribunal has put limits on backdated claims, if there has been a break of more than three months between successive underpayments – this could mean employees can only make a claim if they have taken a holiday in the previous three months.

There is still the possibility of the companies involved appealing the decision. The cases could then be referred to the EU courts or Court of Appeal for clarification on how the European law should now be interpreted.

What should employers do?

Holiday pay must now reflect the worker’s actual normal earnings rather than just basic salary. If a worker’s earnings vary, the holiday pay should be based on an average of their actual earnings calculated over a 12-week period.

If you would like to know more about holiday pay please don’t hesitate to contact one of the team here at Tamar HR.

Zero Hours Contracts

The General Election  bought the issue of zero hours contracts being used by employers to the political arena. From all this, it has been difficult to separate fact from fiction, so here are the most common questions asked about zero hours contracts:

What are they?

When an employee is engaged on a zero hours basis, the employer does not have to offer any work to the worker and the worker does not have to accept it. For example, Andrea works as a waitress for an events company, when there is work they call her to see if she is available and whether she wants to work at certain events.

Employees with zero hours contracts are still employees and still have rights to annual leave and national minimum wage, protection from discrimination, and as individuals work, they accrue 'continuous service' which counts towards employment rights such as redundancy pay.

Different industries tend to lend themselves to the use of zero hours contracts, for example in hospitality where work is often seasonal with periods of work appearing in peaks and troughs.

What is the issue with zero hours contracts?

The issue with zero hours contracts is that as there is no obligation to offer work, which means that a worker could be working one week and not the next, this creates uncertainty as an employee cannot depend on a regular income. Exclusivity clauses have also been a cause of concern as these limit an employee working for another employer whilst potentially not offering any hours themselves, therefore restricting an individual’s ability to earn a wage. Many individuals enjoy the flexibility these contracts offer, for example students that have differing periods of availability throughout the week.

Are employees aware they are on a zero hours contract?

An employee on a zero hours contract may take regular hours but then complain when an employer does not offer them work when they want it. A clear zero hours contract making clear the nature of the working relationship and obligations for both employer and employee will be very helpful.  A worker can be regarded as an 'employee' if there is a regular pattern of work and the parties come to rely on each other.

Employers should ensure that they provide a clear statement in the employment contract that explains what the zero contract is and the circumstances where an employee may not receive work, as this will clear any issues that may arise from the outset as the employee will be clear about what they are entering into.

Can an employer prevent a worker from working elsewhere?

As part of the Small Business, Enterprise and Employment Act 2015, exclusivity clauses were prohibited from 26^th May 2015 and this measure means that staff who are contracted on a zero hours basis can work for more than one business without being dismissed or disciplined.

This looks to be a fair compromise on the arguments presented as many saw an outright on ban on zero hours contracts as an unfair decision on the many individuals that enjoy the flexibility these contracts offer. 

Conclusion

Zero hours contracts have their place and provide flexibility to both the employer and worker. However, in the spirit of trying to reduce disputes, having clear documentation and communication with employees on zero hours contracts is essential.   

If you would like to know more about zero hours contracts, please don’t hesitate to contact one of the team here at Tamar HR.

Auto-enrolment Update

You will now be aware that the law on workplace pensions has changed. Every employer in the UK with at least one member of staff now has a duty to ensure employees meeting a certain criteria are enrolled into a workplace pension scheme. In addition both employers and employees are obligated to make contributions into the pension scheme.

Auto-enrolment has been rolling out across the UK since 2012 and millions of employees are now up and running in a pension scheme. Between now and May 2017 the focus will be on businesses with a number of employees between 1 and 50, with each individual business having a unique ‘staging date’ depending on the number of people employed.

Developing and implementing a plan for Auto-enrolment can take between 6 - 18 months to complete effectively, so if you do not already have provisions in place, the Team at Tamar HR will be happy to provide you with the details of how you can comply with the new legislation. It’s also worth mentioning that auto-enrolment is not optional for employers and there is a legal requirement to comply, so don’t get caught out by leaving it too late. There is plenty of help available out there and we would be happy to point you in the right direction.

Staging Date

In case you are unaware of your ‘staging date’, the information below will help you to find this out. The best way to think of a ‘staging date’ is the date at which the law will apply to your business.

To find your staging date, simply visit the Pension Regulator website at www.thepensionregulator.gov.uk and click on the ‘Find out your staging date’ section. You will be presented with a box like the one pictured below and all you need to do is enter your PAYE reference to be provided with your specific date.

Once you know your staging date you can begin to think about your preparations for auto-enrolment and how to comply with your duties as an employer.

If you would like to know more about auto enrolment please don’t hesitate to contact one of the team here at Tamar HR.