“The question isn’t what are we going to do. The question is what aren’t we going to do” Ferris Bueller

Debbie-Haskell-150x150Over recent months it would appear that even celebrities are not immune to taking a leaf out of Ferris Bueller’s book and having a “sickie” from work. Maybe they don’t go to such great lengths to hide their deceit or create such mayhem but none the less they are just like the one-third of British workers who admit to having “pulled a sickie”, according to research by professional services firm PwC. Danny Dyer’s daughter revealed he “lays around on the sofa all day” when he should be working. Zayn Malik left a gig early and was then seen jetting off to LA a couple of hours later and most recently, Nick Grimshaw had a heavy weekend partying and told his bosses he couldn’t make it in (let’s hope he takes his new X Factor role more seriously) .

The cost to UK businesses of these unauthorised days off is around £9 billion per year, a sizeable portion of the £23 billion per year that sickness absence costs as a whole.

The most popular reasons for taking time off, according to the survey of more than 2,000 adults, are hangovers (32%), being bored by their job (26%) and interviews with another employer (26%). One worker in nine (11%) said they had lied to enjoy the good weather, while 8% had done so for a sporting event. Just over one in 10 had phoned in sick because it was Monday.

Some of the imaginative excuses given for missing work were:

“I’ve accidently locked myself in the bathroom and I have to wait until someone with a key to the house can come round to let me out.”

“I’ve accidently sent my uniform to the charity shop so I need to go and buy it back.”

“I thought it was a bank holiday and I’m 500 miles away.”

“I missed the stop on the train this morning and I can’t get off the train now until London.”

For employees who need a helping hand to wax lyrical as to why they have not turned up, a new Android app, Skiver, can help users pull a sickie. The app allows would be skivers to select how many days off they are looking for and provides a selection of plausible illnesses along with a list of the relevant symptoms to dupe their boss. The app even provides an email which can be sent directly to the user’s boss notifying them of the absence. Once their cover story is in place it even provides the user with suggested activities in their area to so they can make the most of their extra time off.
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Zero hour contracts: the situation post-election

Debbie-Haskell-150x150Zero hours have received a lot of bad press in the past few months with the media reporting on the likes of smiley and sad faces being used to communicate whether an individual was required to work. Interestingly, zero hour or casual contracts have been knocking around for a long while; my very first job was on that basis and, as it was before the prevalence of mobile phones, the age old drawing of straws was used instead.

The issue of zero hour contracts features regularly in questions from our business clients; particularly seasonal businesses. When speaking with small business owner Judith* recently, she raised the topic of the feasibility of using a zero hour contract. After chatting with her it became apparent that what she needed was flexibility with her staff’s working availability. Her business was such that she had discernible busy and quiet times of the year, but her trade attracted casual employees – primarily students – who left as the season quietened. Because of this, her staffing levels were just about right and, as it had never been her practice or intention to have her staff work either no hours, or very minimal hours a week, we advised her on a more appropriate approach.

This is not an uncommon query from SME’s, maybe because there was no legal definition of a ‘zero-hour’s contract’ and it has been used interchangeably with ‘casual contracts’. On the 26th May 2015 the Government implemented certain provisions of The Small Business, Enterprise and Employment Act 2015, which now defines a zero hours contract as a contract of employment or other workers’ contract where any agreement to perform work or service is conditional upon the employer making it available and where there is no certainty that work will be offered. The government has also banned clauses in these agreements which would prevent an individual from working elsewhere whilst waiting for the offer of work – the much touted ‘exclusivity clause’.

As with all new pieces of legislation, its impact is still to be seen, but it still does not address one of the main causes for concern; that being the uncertainty of any employment and whether the offer will be for sufficient hours to live off and it also holds complications for employers such as the calculation of holiday pay.

Zero-hours contracts clearly have a place in society, but as my colleague has previously blogged they also have their limits.
*name has been changed

How private is your web life?

Debbie-Haskell-150x150One of the more conspicuous contributions to the ever quickening pace of modern life is the rapid increase in the use of the internet for commercial and social interaction. This evolution has occurred so rapidly that most people think nothing of spending hours at a time online, accessing the internet through their phones, note books or laptops.  Its origins as the open sharing of academic thoughts and ideas has metamorphosed into such diverse offerings as search engines and shopping; forums and Facebook and not forgetting that the expansion of social media gives you the opportunity to post a million photographs (tagged of course!) of your five year old’s birthday party triumph.

All of this raises an interesting question, one very much the topic of debate in the court recently; is our privacy being sacrificed at the altars of convenience and immediate information?

Why ask this at all? Well the quest for faster access to information and more efficient internet encounters has been revolutionised by an explosion in the use of cookies. A cookie is a simple text file, unique to every browser, which is stored on a computer or mobile device by a websites server. This has undoubtedly represented a quantum leap forward in data collection and retrieval speed, enabling amongst other things, immediate recall of an individual’s preferences, shopping basket or search history.
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Do I need a lawyer? The employee’s companion at a disciplinary or grievance meeting

Debbie-Haskell-150x150The rights of a worker to be accompanied by a companion of their choice, to either a disciplinary or a grievance meeting, has been clarified in the publication of an updated ACAS code of practice. This revised code reflects the decision in the case of Toal and another v GB Oils Ltd where aggrieved employee’s successfully brought a claim against their employer after being refused their choice of companion. The employer believed their request was unreasonable and that the individual selected would prejudice the meeting. It relied on the, then ACAS code which stated “however it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing….”

The Employment Appeal Tribunal did not agree with the employer’s view, stating that Parliament had clearly intended the worker to have free choice. It also decided that because the legislation was unambiguous there was no need for the employer to turn to the ACAS guide for interpretation, which they added, in any event had no authority on this occasion to interpret this entitlement – that was a matter for the courts.

The ACAS code of practice is a very useful source of guidance and to be fair, it was accepted good practice previously that only reasonable requests be permitted. The new ACAS code explains:

The employer must agree to the workers request and choice of companion provided that they are from one of the three categories given in the legislation.
• A worker can change their companion if they wish.
• The workers request does not have to be in writing.
• The workers request should be made in sufficient time so that arrangements can be made for their chosen companion to attend. It should include sufficient detail so that the companion can be identified.

However there are some concerns that the ACAS code has not gone far enough. In the Toal case the Employment Tribunal made it clear that:
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Case study: Time off for family emergencies; where does the employer stand?

Debbie-Haskell-150x150Employees can be tricky bag sometimes and dream staff can quickly become your business nightmare. Take time off for family emergencies as an example; Derek* contacted us when one of his newer members of staff started to request time off as his partner was seriously ill.

Being a small businessman, Derek had naturally given his employee the time off without many questions. When he contacted us with an innocuous query on another matter, he mentioned the employee as an aside, raising a common concern by many employers as to what sort of questions can be asked of an employee.
Our legal team promptly advised him of his rights and explained that an employer is entitled to ask suitable questions to establish whether the situation was a genuine emergency, and whether there was anyone else in the family that could assist in the support.

Not only does this keep the communication between the employer and employee flowing but it also establishes the common ground that not all ‘emergencies’ are emergencies and that the circumstances surrounding a request of this nature can be subject to scrutiny by an employer.

Whilst not pertinent to Derek’s query, time that can be taken off for family emergencies has been confirmed by the Employment Appeal Tribunal as being transient in nature – reflecting the emergency that has arisen, and cannot be used for extended absences.

Furthermore if an employer suspects that this right is being abused by an employee, for example there is a pattern starting to emerge in the days that the employee is absent then an employer is entitled to consider their disciplinary procedures.
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Employment Law: a roundup of the most significant changes in 2014

Debbie-Haskell-150x150Enforced subject access requests
On the 1st of December 2014 the government implemented section 56 of the Data Protection Act. This now makes it a criminal offence for a party to require another individual to make a personal subject access request with a view to that party then viewing it – which is often referred to by many as an enforced subject access request. Employers can still request a criminal record check from the Disclosure and Barring Service where the role they are recruiting for concerns work with vulnerable adults, children or is exempt under the Rehabilitation of Offenders Act 1975.

The scope of this new section is wide reaching; it not only prevents employers from making job offers conditional upon the disclosure of criminal convictions, but also prevents the provider or supplier of a service from imposing the same condition. The ICO has offered some very useful examples in their guide on the subject.
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Remission fees in the Employment Tribunal….. a year on.

Debbie-Haskell-150x150So how does fee remission work? When an individual wishes to use the Employment Tribunal, (or the courts), a fee for its use is charged. A fee remission is a request for either full or partial waiver of those fees. To apply for fee remission an applicant must download a form from HM Courts and Tribunal Service website titled ‘Court and Tribunal Fees – Do I have to pay them?’ and to be eligible for either a full or part exemption of a tribunal fee both elements of a two limb test have to be satisfied.
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Consumer rights within the European Union

Debbie-Haskell-150x150Have you ever bought goods over the internet from a retailer in the European Union and been worried about what you could do if they did not arrive or were faulty?

It is not a very well known fact but our government signed up to a European Directive in 2007 to make it easier for one party to a dispute to take the other to court even though they are located in another European member state.  Regulation (EC) No 861/2007 established a European Small Claims Procedure and has applied since 1 January 2009 to business and consumers alike. Its principle aim is to ensure access to justice by simplifying the whole cross boarder court process through the use of unified forms and by reducing matters to a paper procedure where possible. It applies to all European states with the exception of Denmark and strict time frames must be adhered to, to ensure that the dispute is efficiently managed.

European Small claims – what does this mean….?

Simply put, if for example you had a contractual dispute with a party based in the European Union, such as faulty goods being delivered and if you were not able to resolve the matter amicably perhaps via your bank, credit card or a service provider then under the European Small Claims Procedure (or ESCP) a consumer or business can start proceedings using a uniform court form.  The ESCP only applies to claims up to the current value of €2000 and to disputes of a consumer and commercial nature. Whilst this description covers quite a wide variety of claims there are restrictions which apply and it is actually easier to list those which don’t.
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The End is Nigh for Distress: the new CRAR Regime is rolling on in

Debbie-Haskell-150x150On the 6th of April 2014 a commercial landlord’s right to levy distraint or distress, where their tenant is in rent arrears will be abolished when Part 3 of the Tribunals Courts and Enforcement Act 2007 is expected to become law.

This will have an immediate impact on commercial landlords who currently are in a stronger position to recover rent compared to their residential landlord’s counterparts. Exercising the common law remedy of distress is – or was – a fast, cheap and effective method of ensuring that rent was received. The threat of sending the bailiffs round ensures an immediate impact on tenants who are incentivised to communicate and deal with the landlord.

The legislation is not purely aimed at commercial landlords and forms part of wider reforms aimed at unifying the various areas of law impacting on the seizure of goods and their sale. Measures have also been implemented in conjunction with this for ‘transforming bailiff action’. It is the governments aim to do away with what it describes as the current complex and occasionally confusing regime by replacing it with one which creates a clear framework of procedures.
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How much is compliance costing you?

Debbie-Haskell-150x150Its official; the costs of compliance has risen sharply between 2011 and 2013. The impact of this was most noticeable for SME’s, with the Forum of Small Businesses (FSB) reporting that its member’s costs had risen by £18.2 billion. Larger businesses are also affected with the EEF echoing similar findings in its published report for 2013. Whilst this may not come as a surprise to some, it seems to stand in stark contrast to the Governments promise to cut red tape.

Health and Safety, Employment Law and Tax were the major compliance costs identified last year; the biggest bill for SME’s was tax compliance which had risen to £6 billion. This may be due to the introduction of Real Time PAYE which HMRC estimated would cost businesses approximately £110 million for 2013-2014 but which has been independently reported as costing more akin to £311 million during the same period – perhaps offering some small triumph to the schemes critics.
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