“Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed – no escape. Nothing was your own except the few cubic centimetres in your skull.”
― George Orwell, 1984
Nobody wants to be accused of being Big Brother, but monitoring employees’ emails is perfectly legal if you go about it in the right way. So, what should you do – monitor or not?
Data Protection and Employee Rights
As a business owner, you need to make sure your employees are carrying out their work effectively. You also have a responsibility to ensure they’re not using work email to do things they shouldn’t. Like sending offensive emails or sharing unprotected data. At the same time, you don’t want to encroach on your employees’ privacy or demonstrate a lack of trust.
Before we consider whether you should monitor employees emails, let’s take a look at whether you can.
The Information Commissioner’s Office states that, in general, it is considered intrusive to monitor your employees’ emails.
That’s because employees have a right to respect for a private and family life under article 8 of the European Convention of Human Rights. This means people can send personal emails from a work computer and email address and expect them not to be monitored or read by employers.
But what about work email?
It’s perfectly legal for employers to monitor employees’ emails as long as certain criteria are fulfilled. This includes being:
- clear about the reasons for the monitoring
- satisfied that the monitoring arrangement is justified by real benefits
- clear with employees for the reasons, extent and nature of any monitoring that’s in place
If you decide to monitor, you’ll need to warn employees that emails sent from a work computer may be observed. A good way to do this is to include suitable wording in your contract of employment.
Before implementing a monitoring policy, employers must carry out an assessment of the proposed activity to establish
- the reasons for monitoring staff and the benefits that this will bring
- any negative effects the monitoring may have on staff
- whether the monitoring can be achieved through any less intrusive means
- whether the monitoring is justified, taking into account all of the above
Think you might have sufficient reason to monitor? Then the next thing to consider is proportion.
In-depth or Light-touch?
Depending on your business and sector there may be highly valid reasons for monitoring staff email. For example, financial services organisations often monitor communications to ensure sensitive data is not being shared, accidentally or otherwise.
However, all businesses considering email monitoring should act proportionately and fairly to achieve the right balance between organisational needs and employee privacy.
In most cases assessing the date, time and recipient or sender of an email will help you determine whether it relates to work or not. Reading private emails, particularly those that contain confidential information is likely to breach an employees’ privacy.
Automated email monitoring can analyse huge amounts of email traffic, spot inappropriate content and deliver reports for managers. This distances managers from the emails themselves and raises a red flag indicating that further investigation is required.
Before jumping straight into an in-depth review of an employee’s inbox, it can often be a good idea to hold a meeting. By discussing how the individual has been using email and the kinds of information they’ve sent you can decide on a proportionate response.
The Potential Impact of Email Monitoring
Monitoring employees’ emails can create an atmosphere of distrust if implemented and acted on incorrectly.
In some sectors, like those with significant data protection requirements, employees are likely to be more understanding of the need for monitoring. However, organisations where data is less sensitive may not find employees so tolerant.
Should any breach in policy be identified, managers’ next steps are key to how your monitoring policy is perceived. Managers using the information inappropriately will bring the policy intro disrepute. However, used effectively – to curtail inappropriate behaviour or prevent action being taken against the business – employees will likely support the policy.
Coupled with well-handled conversations and a genuine respect for employees’ privacy, email monitoring can be helpful for businesses. However, history has shown most people don’t appreciate their emails being monitored so introducing this policy requires careful handling.
If you do decide to go down this route ensure you’re acting legally, in line with your policy and for the good of your employees as well as the health of your business.
For help navigating email monitoring and other employment contract issues, contact Crosse HR on 0330 555 1139 or at firstname.lastname@example.org.
Thinking of saying goodbye to a new hire? Then something obviously hasn’t worked out. To ensure their departure goes smoothly, you need to give them the right amount of notice.
But how long should that be when an individual is still in their probation period? And what else do you need to consider? Read on for the answers.
Probation – Not Just For Criminals
Most employers operate a trial period for new employees – also known as a probation period – which can vary from a few days to several weeks or months. The length of probation should be clearly set out in the employee’s contract alongside the employee’s standard notice period.
But what happens if they hand their notice in, or you want them to leave, during their probationary period? Does the standard notice period apply? Or can you legally give less notice and hasten their departure?
It Depends on Length of Service
People with probation periods shorter than one month are not entitled to any notice so you can exit them from your firm immediately.
Of course, notice periods work both ways and employees can notify you of their intent to leave too. Which means you could be left in the lurch if someone leaves within their one-month probation period.
That’s why most organisations stipulate a probation period of three months. This often increases to six months for more senior roles and jobs that are difficult to recruit. By extending the notice period, both employers and employees are protected.
There are two types of notice that employees and employers must give.
Contractual notice is the agreed notice period, as set out in the employment contract, that must be given by either side to terminate the arrangement.
You can choose to give more notice than legally required. But of course you cannot give less than the law stipulates.
Typically, contractual notice periods are:
- Less than one week for staff with under one month’s service
- One week for people with between one and six months’ service
- One month for people who have recently passed their probation
These notice periods give both sides a degree of protection and tie in nicely with the following legal minimums.
If you don’t include a notice period in your employees’ contracts you have to abide by legally predefined notice periods based on the individual’s length of service:
- Less than one month’s service > no notice
- One month to two years’ service > one week’s notice
- Two years’ service > two week’s notice
- Three years’ service > three week’s notice
The notice periods increase by one week for every complete year of tenure. So someone with eight years’ service would need to give and be given eight weeks’ notice.
Notice Has Been Served – What Happens Next?
This usually depends on who gave notice and the reasons why.
If an employee gave notice and there’s no problem (like performance issues), you will probably want them to work for the duration. This helps your organisation by keeping work moving and giving you time to recruit.
If you’ve given notice to a member of staff during the probation period, it’s usually because performance or attitude is not up to scratch. Which might mean you don’t want the employee to come in.
In this instance, you will still need to pay them for their notice period and you can do this in one of two ways:
- Pay in lieu of notice – you end the employment before the individual serves their notice and pay them as if they had worked their notice period.
- Garden leave – the employee serves their notice but doesn’t do any work for your company. This might happen if they are leaving to work for a competitor. Again, they must be paid for the full notice period.
Nobody wants to recruit the wrong person for the role. But occasionally it happens. Protect your business by:
- checking your contracts of employment
- paying notice periods as required
- revisiting your recruitment practices to spot any gaps
If you want help protecting your business from the unexpected, get in touch with Crosse HR.
The intricacies of employment law often trip business owners up. And one of the most common hazards is dismissing someone in line with the letter of the law. There are two kinds of dismissal that sound similar but mean very different things and you need to avoid getting either of them wrong.
In this blog, we explore the differences between unfair and wrongful dismissal and explain how you can avoid falling foul of either.
Isn’t Unfair the Same as Wrongful?
Not quite. In fact, in legal terms, they are entirely different concepts, as we explain.
This happens when you breach an individual’s contract in the process of dismissing them. The most common breach is failing to give an employee the correct length of contractual or statutory notice.
When are employees protected?
Employees have this right from day one so you need to be vigilant from the outset of a new employment contract. If you cannot settle the issue via conciliation with HR support, you could be looking at a tribunal or court case.
Claims for £25,000 or less would be settled in an employment tribunal whereas those over £25,000, would require a county or high court action.
How much could it cost?
Damages are not fixed. The figure will be set in reference to the individual’s pay and benefits for the period of their notice had they received it. This can include items like a company car, bonus, health cover and pension payments.
The more senior the employee, the longer their notice period is likely to be and therefore the more costly their claim. It’s also worth noting that it’s unlikely you will be able to recover your court costs.
On the plus side, employees are required to look for a new job as soon as possible. If they secure one and work during what would have been their notice period, their new pay and benefits will be taken into consideration. This could reduce the amount of any monies owed.
What can you do to avoid it?
If you want to dismiss an employee, ensure you give them notice in line with their contract or statutory minimums. If you want the individual out of the business immediately, you could pay them in lieu of notice. This means paying them all their usual pay and benefits as if they had still been working up until the end of their notice period.
This is a very common practice and in many cases will be cheaper than paying court, salary and benefit costs. You’ll also save time and effort into the bargain.
What else do you need to know?
What constitutes wrongful dismissal is defined by referring to case law. This means that the most recent judgement on the topic sets a precedent by which wrongful dismissal is assessed.
As such, it can change form time to time so you need to keep abreast of any changes. Or work with someone who does that as their day job.
Employees are protected by law from being unfairly dismissed. It’s a statutory right and is based on the employer’s reason for dismissal. For you to defend an employee’s claim you must show that:
- the reason for dismissal is one of the potentially fair reasons listed in the Employment Rights Act 1996 including:
- statutory illegality
- some other substantial reason
- your conduct was fair and reasonable in the circumstances, taking into consideration the size and resources of your organisation. This means:
Both these tests must be passed: if you dismiss for a fair reason but carry out the dismissal unfairly, you will still be deemed to have acted unfairly. The only good news in this scenario is that the amount of compensation might be reduced.
When are employees protected?
Except in specific circumstances, employees must have a minimum of two years’ continuous service to qualify for the right to bring an unfair dismissal claim. And it can only be pursued in an employment tribunal.
How much could it cost?
Compensation is made up of a basic award (calculated on the basis of age, length of service and salary) and a compensatory award limited to one year’s gross pay or £80,541, whichever is lowest. This takes into account future loss of earnings and loss of statutory rights.
What can you do to avoid it?
If you have an employee who you want to dismiss, you need to tread carefully. The Acas Discipline and Grievance Guide provides step-by-step advice on dealing with challenging situations including capability and conduct.
If you find you have dismissed someone unfairly and you do not have a case to defend, you could reinstate or re-engage your employee.
What else do you need to know?
Sometimes an employee will pursue tandem claims. While this will mean a more complicated case it doesn’t necessarily mean more compensation as an employee would not be entitled to double recovery for the same loss.
What’s the key takeaway from all this? Bring in an HR specialist early on if you’re thinking of dismissing someone. It might cost you a few hours of their time but it’s likely to be a lot cheaper and quicker than getting it wrong and having to pay compensation and undergo a lengthy legal process.
18 year olds can drink, smoke and drive legally. They can even die for their country on the battlefield. But when it comes to work, they don’t have the same right to the National Living Wage (NLW) as other adults.
We discuss the background to this issue and debate the pros and cons of bringing young workers’ pay in line with the NLW.
What’s the Deal for Young Workers?
The national minimum wage has been in place since 1999 with the aim of guaranteeing a threshold below which no person should be paid (except apprentices who are paid far less).
Many people felt that this legislation did not go far enough and campaigned for a National Living Wage (NLW). This new level of pay was intended to provide people with sufficient income to ensure a decent quality of life.
From 1st April 2016, the government made the NLW mandatory for workers aged 25 and above. This represented a 50p per hour increase on the National Minimum Wage (NMW) which was £6.70 per hour at the time for workers aged 21 to 24.
This handy table shows the current levels of pay for workers of different ages.
This is an interesting state of affairs because equal pay for work of equal value and age discrimination are established in English law.
You cannot pay and man and woman differently for the doing work of the same value. You cannot discriminate against people because of their age.
Yet the government’s NMW and NLW policy clearly does both these things. Employers would be perfectly within their rights to pay a 24 year old the NLW when they’re doing the same job as a 30 year old who could be earning much more.
With the struggles young people face in terms of high rent, the difficulty of saving for a deposit on a house and the impossibility of securing a mortgage in a buoyant housing market, low pay is a pressing question.
The Debate – Should We Pay Young Workers the NLW?
If we said that all men could only be paid the NMW there would be uproar. That’s because we recognise that when two people do work of equal value, they should be paid broadly the same.
However, can it really be said that a young person brings the same level of knowledge and experience as someone much older? Probably not in more complex roles.
Yet in lower skilled jobs that can be picked up quickly and easily there’s certainly an argument against this. Surely a young, less experienced person can deliver the same level of customer satisfaction as someone older in a retail role for example?
It has to be recognised that the NLW is not the pay that an employer must pay: it’s the pay they must not go below. This means that businesses are free to pay all workers more than the NLW to making it possible to achieve pay parity.
In fact, a number of larger firms have said they are unlikely to differentiate pay by age for workers aged 21-24. This is partly on legal grounds and partly because they want to ensure good employment relations. And it’s also because they are uncomfortable with treating people in their early 20s differently from those in their mid-20s.
Cost to Business
Of course one reason not to drop the age for the NLW is the cost to businesses.
An extra £910 per year plus benefits and tax could be enough to push some businesses under. And it might make it less likely that firms would employ youngsters when they could get someone with more experience for the same wage.
Hile business considerations are one side of the coin, quality of life is the other. People in lower paid roles tend to have little if any savings should something go wrong. £910 a year to these people is a significant proportion of their salary.
The cost to Education and Society
It can also be argued that making young people too comfortable in paid work could lead to lower rates of further and higher education.
The NMW and NLW have been put in place to address exploitation at work without encouraging young people to enter the labour market who may otherwise stay in college or go to university.
However, this argument only applies to those aged 18 to 21, whereas there are lower rates of pay for people aged 21 to 24. Whether this is the right way to encourage young people to go to university is questionable.
Increasing minimum pay levels might be difficult but it is certainly possible as the introduction of the NLW shows. Whether pay rates are ever made more equitable remains to be seen but you can be sure that, if they are, businesses will be expected to bear the additional costs.
Time’s up for large employers to submit their gender pay report. Our roundup explores what we can we learn from the submissions.
Remind Me What This is All About
All public and private sector organisations in Britain employing more than 250 people had to send their first gender pay gap report to the government by 31st March and 4th April respectively.
The report needed to identify pay differentials between men and women to show:
- Any differences in terms of hourly rates of pay – for example, men earn 10% more per hour than women
- The percentage of each sex at different pay quartile positions – this might show that the lowest paid quartile of the workforce is mainly female and the highest quartile mainly male
- Any bonus gap – such as men earning 20% more in bonuses than women
Both the mean and median figures need to be reported and organisations must provide a commentary explaining their results and what they intend to do to reduce any gap. Results are published on a government website and must also be publicly accessible on each company’s website.
What Not to Do
True to form, the Big Four exploited a loophole in the guidance and have been publicly named and shame for their action. Instead of including all employees in their figures, they omitted the data of their highest-paid individuals; their partners.
After facing criticism from the Treasury Select Committee, these leading consulting firms were forced to re-report their figures. In three cases the recalculation increased the median hourly gender pay gap.
||Original Gender Pay Gap
||Revised Gender Pay Gap
|Ernst and Young
The only exception was Deloitte which saw a slight decrease from 15.3% to 15.2%.
The moral of this story? Abide by the letter and spirit of the government’s reporting guidance.
The UK’s gender pay gap currently stands at 19.1% for all employees or 9.4% for those working full-time. Beneath these headline figures, the submitted reports reveal a range of results:
- A small number of organisations have a reverse gender pay gap – for example, Cambridgeshire Police pay women 12.9% more than men.
- At the other end of the spectrum are Phase Eight whose female employees earn 64.8% less on average than males.
- Other organisations, like the UK Armed Forces, are almost gender neutral paying women 0.9% less than men.
The main reason cited for the gender pay gap is that organisations have more men in senior roles where significantly more money is earned.
Take Easyjet: they pay women on average 51.7% less than men. The reason for this is that just 6% of UK pilots are women earning a mean salary of £92,400. In comparison, 69% of cabin crew are female earning an average salary of £24,800.
With such a gender divide between high and lower paid roles, it’s no surprise that there’s a massive pay disparity.
What can Easyjet do about this? Seeking to employ more women in pilot roles and more men in cabin crew roles would help close the gender pay gap. However, this will require more creative recruitment tactics to be used to attract the right numbers of suitably qualified candidates of each sex to the roles. And all without breaking equality laws.
What Does This Mean For Employers?
With pay gaps now out in the open, customers, employees and potential future candidates will have access to the data. This will allow both men and women to factor the information into decisions like whether they want to apply to or remain with a company or do business with an organisation.
With the glass ceiling still evident in many organisations, this could be a particular consideration for female applicants when seeking career advancement.
Nicky Morgan, Minister for Women and Equalities, said the information would help women “use their position as employees and consumers to demand more from businesses, ensuring their talents are given the recognition and reward they deserve.”
However, it’s useful to remember that the data works both ways. Organisations that pay males less may find fewer men applying for roles or possibly even asking for higher starting salaries.
What happens next is in the hands of organisations, candidates, employees and customers. The gender pay gap reporting exercise could be an exercise in futility or a catalyst for change. We await next year’s reports with anticipation.
If you’d like the support of an experienced HR consultant to address your gender pay gap, contact Crosse HR on 0330 555 1139 or email at email@example.com.
Hidden in the detail of the Autumn budget, the Chancellor announced the increases to the National Minimum Wage that will apply from next April:
• from £7.05 to £7.38 for 21 to 24 year olds;
• from £5.60 to £5.90 for 18 to 20 year olds;
• from £4.05 to £4.20 for 16 and 17 year olds; and
• from £3.50 to £3.70 for apprentices.
European law is changing your data protection obligations and ramping up the penalties if you get it wrong. In most businesses, the data you hold in relation to people will fall into one of two categories: customer and employee. In this article, we explore what the General Data Protection Regulations (GDPR) means for your employees’ data.
What’s Happening and When?
The GDPR has already been enacted into European law so companies in the UK and beyond are acting now to ensure they meet the new requirements. While a government bill may set out some UK-specific changes, you need to ensure you’re fully compliant by 25th May 2018. Fail to do so and you could be in receipt of a fine up to $20m or 4% of global turnover, whichever is larger.
As an employer, you need to store and use employee data to be able to carry out the promises in your employment contracts. In general terms, data gathering, storage and processing to fulfil these contractual obligations does not change under the GDPR. However, there are some key differences.
The GDPR places a heavy focus on businesses being able to demonstrate compliance with the principles of data protection. This means adopting a business-wide Data Protection Policy that you abide by across the organisation. Your policy needs to explain:
- Where data you process originates from and why it was collected
- How you are using the data
- Where the data is being kept and how long for
- Who you share the data with and who has access to it
- When data is transferred, to when and to who
- The legal basis for your data use
To do this, every set of data needs to be mapped, end-to-end, to ensure you have a record of the information above.
The Right to be Forgotten
One of the major challenges for employee data is the ‘right to be forgotten’. This means individuals have the right to request that all their electronically-held personal information is erased.
This could mean accessing and deleting a significant range of data including personnel records, CCTV recordings, information associated with an employee ID and bank details to name but a few.
Data held on partner systems outside of the organisation, like pay review data and occupational health and health and safety records would also need to be scrubbed. To be able to do this, you will need to ensure you have up-to-date data processing maps and clear processing rules that are strictly adhered to.
Subject Access Requests
Currently, employees (and customers) are entitled to request a copy of all information an organisation holds on them. The fee is £10 and the data must be provided in 40 days following the date of payment.
Under the GDPR people’s rights are enhanced – because the £10 fee can no longer be charged, the reduced timescale of 30 days will begin from the date the request is received.
If the individual requests data you have already provided, you can then charge a reasonable fee to cover your administrative costs. Complex or numerous cases mean you can request an extension of up to a maximum of an additional 2 months.
Consent to Process
Do you operate a blanket data protection consent clause in your employment contracts? The likelihood is this won’t be up to GDPR standards and you will need to secure individual consent. However, it’s possible you may not need express consent as long as you are only processing data:
- So you can perform your responsibilities in relation to the employee contract, like paying people
- For the lawful interests of the employer
- To comply with legal obligations like gender pay reporting
- To protect an individual’s vital interests such as ensuring health and safety
While using data in these ways covers the majority of generic information like name, address and bank details, greater care should be taken with data that may not strictly be necessary for the performance of the employment contract. For example, submitting employee data to external survey providers or requesting medical records for reasons unrelated to an employee’s health and safety. If you are using data outside of the listed purposes express consent will be required.
Under the GDPR, employees will also have the right to request that specific data is shared with a third party. An example would be asking payroll to provide evidence of earnings to a mortgage provider.
This could mean a change to existing processes and a requirement for enhanced security when data is being transferred. All such changes will need to be captured in your data processing workflows and data protection policy.
Practical Next Steps
There are two steps to take right now. FIrstly, conduct a comprehensive gap analysis of your data gathering and processing to uncover any black holes in your systems. You’ll also need to conduct a full review of internal and external policies, procedures, templates and notices to ensure they adhere to the GDPR.
Start by asking these questions to get the ball rolling:
- What kind of data do we collect or hold on our employees?
- Who owns this data internally?
- What data do we share with third parties; who are they and how do we share the data?
- Where do we get it from?
- What controls do we have in place?
Your existing data protection policy will need to be updated or, if you don’t have one, created. While this is an organisation-wide document, it should cover any HR-specific data processing requirements.
To make certain you are fully compliant, issue a privacy notice to job applicants and existing employees to ensure you can demonstrate compliance.
If you have questions, queries or concerns about meeting your employee data GDPR obligations, get in touch on 0330 555 1139 or at firstname.lastname@example.org.
137.3 million. That’s the number of working days UK businesses lost to sickness or injury in 2016. The government recognised the challenge that managing long term absenteeism posed to businesses. And, in 2013, they replaced sick notes with fit notes to help employers reduce sickness absence costs and minimise the disruption caused by employees being off sick unnecessarily.
However, several years on, the fit note is plagued by misconceptions. This article clears up the myths so you can make best use of the system for your business.
Myth 1 – Employees Can Get a Fit Note from Day One of Being Ill
Contrary to popular opinion, employees are not able to obtain a fit note until they have been absent from work for seven calendar days. Demonstrating they are ill or injured for this initial period should be covered by a self-certification form.
Myth 2 – Fit Notes Carry a Cost
Fit notes are issued free of charge on the NHS by a GP. However, if an employer requests medical evidence that an employee is unfit to work before they have been absent for seven consecutive days, this will incur a cost. Which is where the confusion can come about. In this case, it is up to employers to foot the bill.
Myth 3 – Employees Can Only Return to Work Once Completely Fit
In most cases, people don’t need to be completely fit to return to work. Fit notes are issued on the premise that appropriate work is usually good for people’s physical and mental wellbeing. Which means employers can support recovery by giving people alternative work to do. This should be appropriate and within the limits that the individual’s health condition imposes.
Myth 4 – Fit Notes Are Specific to the Individual’s Job
Fit notes tell you whether an employee’s doctor considers them to be fit for work in general and is not in reference to the individual’s specific job. This gives you the option to discuss alternative work with your employee that could be outside their usual remit. A temporary change to duties can often support people in returning to work.
Myth 5 – Fit Notes Are Legally Enforceable
The advice contained in a fit note is for the employee and is not binding on the company. It is ultimately down to you as the employer to decide how to act on the advice, taking into account your wider legal obligations.
If the fit note contains work adjustment suggestions you are unable to implement you can explain this to your employee and behave as if the fit note had said the employee is not fit to work. Alternatively, request that your employee returns to the doctor for alternative suggestions.
Consider involving a HR consultant to navigate your legal responsibilities and bring in specialist occupational health expertise if required.
Myth 6 – Only a Fit Note Will Do
It’s up to you what form of evidence you are prepared to accept from your employees regarding their long-term sickness absence. You can choose to accept other proof, like a hospital letter detailing in-patient dates or a letter from chiropractor, if you choose to. Judge each piece of evidence on its own merits and, if in doubt, request the employee provides a fit note if you feel their evidence is insufficient.
Myth 7 – Employers Can Revoke Sick Pay if a Fit Note is Not Provided
This myth is half true, half false. If an employee fails to provide a fit note you cannot withhold statutory sick pay (SSP) even if the fit note is not received on day eight of their absence. This is because the employee may have been too ill to get to the doctor or they have been unable to secure an appointment.
However, if you offer sick pay over SSP, you are entitled to apply your own rules to this remuneration element. You can choose to revoke payment from day eight onwards until evidence is provided and then backdate the payment or even fail to pay it at all if evidence is not provided. Ensure your rules are applied fairly, consistently and non-discriminatorily to keep your feet legally dry.
Myth 8 – Fit Notes Can Roll on Forever
A fit note will have a specified end date. If the employee believes they are still not well enough to return to work or full duties, they can apply to their doctor to extend the note.
To prevent this from continuing indefinitely, if your employee has been off work sick for four weeks, you can make a referral to the government’s Occupational Health Service. The Fit for Work assessment provides the employee with advice on interventions and steps to help them return to work. Subject to the employee’s consent, the Return to Work Plan will be shared with you and the employee’s GP.
If you need some pragmatic HR support to help with a sickness absence case, get in touch on 0330 555 1139 or at email@example.com.