employee rights Archives

In its Children and Families Bill, published on 5 February 2013, the Government committed to extending the right to flexible working for all employees from 2014. Our new XpertHR research on flexible working explores what impact employers think this legislative change will have on their organisations, and whether or not the number of employee requests will increase. Most employers already consider requests to work flexibly from all of their employees, suggesting that many are well prepared for the forthcoming statutory change.

Our survey also provides valuable benchmarking information on key issues around flexible working, including how employers deal with employee requests, the take up of flexible working arrangements and the benefits and challenges of operating a flexible working policy.

The recent firing of Rutgers University basketball coach Mike Rice, but only after a video surfaced of him physically hitting players and hurling repeated homophobic epithets at them, is a virtual primer of what NOT to do from an employment law perspective. Among other things, the university's lack of transparency in handling the incident and its alleged treatment of the former employee who blew the whistle also especially stand out.

In a series of posts this week, the XpertHR team will share lessons to learn from the scandal while also examining where the university fell short. We begin with the coach's bullying behavior.

Supervisor Bullying

The Rutgers scandal highlights the detrimental and domino effect bullying can have if employers fail to address incidents in a timely and effective manner. 

In advance of our free webinar on 10 April, in which Victoria Powell of SaBRE will explain the basics of employing reservists, we highlight five things that employers may not know about the reserve forces.

1. The reserve forces do not just mean the Territorial Army. The UK's reserve forces are made up of the Royal Naval Reserve, Royal Marines Reserve, Territorial Army and Royal Auxiliary Air Force.
2. There is no statutory entitlement to time off for reservist activities such as reservist training. Employees who need time off for activities as reservists can be required to use days out of their normal holiday entitlement for this purpose.
3. The Ministry of Defence aims to give 28 days' notice of call-up for military operations. Employers should expect mobilisation to last up to 12 months.
4. Employers do not have to pay mobilised reservists during their absence on military operations. Reservists receive service pay from the Ministry of Defence.
5. Financial assistance is available to employers from the Ministry of Defence when a reservist is called up.

The webinar Employing reservists: key legal considerations in 60 minutes takes place at 2pm on Wednesday 10 April 2013.

Victoria Powell works for SaBRE (Supporting Britain's Reservists and Employers) and advises on matters regarding reserve service and employment.

The appellate courts have been busy in March 2013 and below we highlight three important lessons for employers dealing with warnings, disabled staff and employees’ comments on Facebook.

Have you ever got home after a hard day in the office and vented about your day on Facebook? Were you lulled into a false sense that your words would have no consequences as you tapped away on your laptop in the comfort of your living room? Did you say more than you would have said to all of your Facebook friends if you were talking to them in the flesh? Probably.

On the XpertHR podcast, I recently chatted to senior employment law editor, Stephen Simpson, about two cases in which employees were dismissed after they made derogatory comments about their respective employers on Facebook. The employees in both cases subsequently pursued unfair dismissal claims in employment tribunals.

Hidden away in the Government's progress report on employment law reform, which sets out a useful (if terrifying) timetable for employment law changes over the next two years is a worrying passage that suggests that the Government is confused about its rationale for the myriad of changes to the law that it is planning.

In among the multiple references to legislative burdens on employers (generic old favourites "red tape", "reduce bureaucracy", "pressure on business" and "unnecessarily burdensome" all make an appearance), is the following passage (on p.7):

"The Government will promote flexibility by regulating the labour market in a light-touch way. The approach we take means the UK labour market is one of the most lightly regulated labour markets in the OECD. Graph 4 shows that the UK is third amongst OECD countries in terms of the lightness of its employment protection regulation."

This is followed by these statistics from 2008 OECD indicators assessing the strictness of employment protection in 30 OECD countries and 10 emerging economies. The UK comes out as third "lightest" in terms of stringency of employment protection, out of 40 countries:

Source: OECD indicators of employment protection (on the OECD website)

As we celebrate Women's History Month in March, we recognize that 2013 marks the 50th anniversary of Betty Friedan's life changing book The Feminine Mystique which ignited the women's liberation movement and caused immense social and political change on all levels. Today, women can be seen in every facet of the workforce and hold positions as truck drivers, mail carriers and university presidents.  In recent years, we've also seen a female Secretary of State, Secretary of Defense and Speaker of the House in the US Congress.

However, a recent article in The Atlantic states that while the US workforce radically changed from the 1970s to 1990s and women entered the labor force in droves, the latest research shows the rest of the world has shot ahead and far surpassed the US when it comes to women in the workforce. The article questions whether the US is "falling behind on women in the workplace?" 

Currently, the US ranks 17th for women's workforce participation among 22 developed nations. Cornell University economists suggest this is not by accident. They suggest the US has not kept pace because significantly more family-friendly policies have been adopted elsewhere which make it easier for women to work part time and take time off after childbirth to care for young children. 

Challenge for Employers

It seems that the challenge for employers is in striking a balance between enacting family-friendly policies that will encourage talented women to stay in the workforce while minimizing the risk of sex discrimination and unlawful stereotyping of women as solely wives and mothers who must attend to caregiving responsibilities. 

Supreme Court Justice Sonia Sotamayor, only the third woman on the Court and the first Hispanic American woman, recently questioned whether if she had chosen to have a family, she could have advanced in the manner that she did. Facebook COO Cheryl Sandberg reviews women's progress in leadership roles in her new book, Lean In: Women, Work and the Will to Lead, and encourages working women, especially mothers, to "lean in" and assert themselves in the workplace with the hope of achieving a balance between professional achievement and personal fulfillment.

However, the fact remains that employers must do everything they can to recruit and retain talented women and mothers, promote family-friendly policies and minimize liability for family responsibility discrimination and sex discrimination.

Employers Should Understand What Family Responsibility Discrimination Entails

Family responsibility discrimination (FRD) or caregiver discrimination is an umbrella term for different types of discrimination. In general, it occurs when employers treat employees or job applicants differently because of their caregiving responsibilities for young children, elderly parents, or partners or spouses.

No federal law explicitly prohibits FRD, but individuals can find protection under Title VII of the Civil Rights Act's ban on sex discrimination, the Pregnancy Discrimination Act (PDA), the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) and the Equal Pay Act (EPA).  While men can also be subject to FRD, more women are victims. Examples of this type of discrimination include:

• Denying female employees with young children the same opportunities and compensation as male employees with young children; 
• Reassigning a new mother to less desirable tasks based on the assumption that she will be less committed to her job; 
• Retaliating against employees for seeking leave under the FMLA or taking time off to handle caregiving responsibilities; and
• Giving female employees lower subjective ratings after they take on caregiving responsibilities, without any actual decline in job performance.

What Employers Can Do

As a result, employers must be proactive and minimize the risk of engaging in family responsibility discrimination by taking the following affirmative steps:

• Implement and enforce practices that prohibit discrimination and harassment based on the family and caregiving responsibilities of employees such as discrimination and FMLA policies;
• Provide regular training sessions to all employees and supervisors so they know how to identify FRD in the workplace and work to create an atmosphere of tolerance and sensitivity with regard to caregiving responsibilities;
• Take all complaints of FRD seriously and respond immediately with a prompt investigation and if necessary, remedial measures; 
• Understand federal, state and local laws requiring employers to provide time off from work for caregiving responsibilities such as FMLA, school visitation leave, etc.;
• Reasonably accommodate employees' requests for leave, time-off or altered schedules which will allow them to balance work and family obligations; 
• Avoid negatively stereotyping employees and applicants with caregiving responsibilities and focus on qualifications and merit;
• Make sure policies and practices with regard to compensation and performance evaluations do not discriminate against employees based on caregiving responsibilities or discriminate based on sex;
• Consider flexible work arrangements such as telecommuting, job sharing, and permitting employees to work part time or flex schedules; and
• Provide family friendly incentives such as backup childcare and social work services.

Share Your Perspective

What types of measures have you instituted in your workplace to minimize family responsibility discrimination and promote women and mothers with caretaking responsibilities? We would love to hear your thoughts. Please get in touch via the comments box below or via BethZoller1 (twitter).

Every employer that has a policy on parental leave should update it to take account of changes to the law coming into force on 8 March 2013. It is good practice for employers to communicate the extended parental leave entitlement to employees.

Even if you have a clear parental leave policy or operate the statutory "fallback scheme", which applies where no agreement has been set up with the workforce in relation to parental leave, employees may not know know much about parental leave.

Five things your staff may not know about parental leave

(1) Parental leave is a legal entitlement for both men and women. It is a period of leave for employees who have parental responsibility for children aged under five (or under 18 in certain circumstances).

• What is the right to parental leave?

(2) Parental leave should not be confused with ordinary paternity leave or additional paternity leave, nor the Government's new concept of "shared parental leave".

• What is parental leave and who is entitled to it?

(3) Employees have to give notice that they intend to take parental leave and, in certain circumstances, the employer can postpone the period of leave for up to six months.

• What is the procedure for postponing parental leave under the fallback provisions?

(4) Parental leave is unpaid. While certain fundamental terms and conditions of employment must be maintained during parental leave, most contractual benefits can be suspended during parental leave.

• Must employees be paid during parental leave?

(5) In most (but not all) cases, parental leave must be taken in blocks of a week or multiples of a week.

• Can a period of just one day's parental leave be taken?

In its Children and Families Bill, published on 5 February 2013, the Government committed to extending the right to flexible working for all employees. Take part in our XpertHR survey on flexible working to find out what impact employers think this legislative change will have on their organisations.

The Government's Bill removes the requirement for the employee to be a carer to qualify for the right to make a request; replaces the requirement for the employer to deal with the request in accordance with the statutory procedure with a requirement to "deal with the application in a reasonable manner"; and requires the employer to notify the employee of its decision within a "decision period" of three months of the application (or longer if this is agreed). 

Our survey will also provide valuable benchmarking information on key issues around flexible working, including how employers deal with employee requests, take up of flexible working arrangements and the benefits and challenges of operating a flexible working policy. 

With Valentine's Day approaching, many couples around the globe will celebrate with wine and roses. However, it seems as if each month there is a new story in the headlines about relationships in the workplace gone sour.
 
Last month, we learned that Keith Rabois, the Chief Operating Officer of Square (an online payments startup) who previously held executive positions at LinkedIn and PayPal, was resigning after a Square employee claimed that Rabois sexually harassed him, and the company failed to take any corrective action to stop the harassment. Rabois explained that he had a physical and welcome relationship with the man who he then helped obtain a position at Square where they continued their relationship in secret until the company was hit with this lawsuit. In response, the company said Rabois had "exercised poor judgment that ultimately undermined his ability to remain an effective leader at Square."

Meanwhile, Bev Kearney, the University of Texas (UT) women's track and field coach and one of the most well known women's track coaches in the country, resigned from her position last month after acknowledging a romantic relationship with one of her athletes that began in 2002.  Although the relationship was an "intimate, consensual one," both Kearney and the UT Legal Affairs Department acknowledged that it was "poor judgment" on Kearney's part because it was unprofessional and  betrayed the trust placed in a head coach as well as the best interests of the students and the University.

What's So Wrong With Workplace Romance

These cases shine a spotlight on the problems with having relationships in the workplace. Although there are no federal or state laws prohibiting relationships in the workplace, both Title VII of the Civil Rights Act and similar state and local laws explicitly prohibit harassment and discrimination.

Workplace relationships gone wrong can sometimes result in sexual harassment or discrimination lawsuits.  For example, after the relationship ends, the supervisor's now jilted lover could claim that the relationship was not consensual and that he or she was sexually harassed by the supervisor. In such a situation, as is the case with Keith Rabois, the company may often end up paying hefty legal bills to defend against the harassment claims.

Similarly, a rejected lover could for example claim that the supervisor retaliated against him or her with a poor performance review and undesirable work assignments after the relationship ended. Further, other employees could claim that the former couple now displays inappropriate workplace behavior such as shouting and fighting which could lead to an uncomfortable and hostile work environment. 

Even if an employee's relationship with a supervisor is successful, the supervisor and the employer still may face a discrimination lawsuit. Other employees could claim unfair treatment if the supervisor inappropriately favored the employee he or she was romantically involved with by accepting subpar work from them or giving them more preferred projects. Further, an employee could claim that he or she found the public displays of affection and romantic behavior between the supervisor and his paramour to be distracting and unprofessional workplace behavior. 

Tips for Employers

To minimize employer liability when it comes to workplace dating and romantic relationships, employers should do the following:

• Consider implementing an employee dating and personal relationships policy that will either prohibit dating all together or adopt a policy that sets parameters and guidelines with respect to workplace relationships. 
• Evaluate whether a love contract is needed when two employees are involved romantically. A love contract is an agreement that employers may ask employees who are involved in a romantic or sexual relationship to sign stating that the relationship is voluntary and consensual and that the parties are aware of the employer's sexual harassment policy and no retaliation policy in the event the relationship ends.  It also provides rules for appropriate workplace behavior.
• Adopt a conflicts of interest policy that will be communicated to all employees and that employees and supervisors will be expected to follow. This policy will put employees and superiors on notice that they will be obligated to disclose any actual or potential conflict of interest that would adversely affect their judgment, objectivity or loyalty to the employer or to their work.
• Provide training on discrimination, retaliation and harassment to all supervisors and employees. 
• Establish a multichannel complaint system and a way for employees to bring complaints of discrimination and harassment.
• In order to minimize liability, employers must immediately respond to any complaints of discrimination, harassment or retaliation and show that they take them seriously.

By taking these steps, employers can better protect their interests in maintaining a fair and professional workplace and decreasing the chance of a discrimination, retaliation or harassment suit resulting from romantic relationships at work.

As the US prepares to honor Martin Luther King Jr.'s birthday, it is a fitting tribute that this year's holiday falls on the same day as President Barack Obama's second inauguration.

With this summer marking the 50th anniversary of the famous March on Washington and Dr. King's "I Have a Dream" speech, there is no doubt that as a nation we have made substantial strides with regard to racial equality and equality for all groups.

 
Racial discrimination still exists in 2013

Dr. King's principled stands helped light the spark that led to Title VII of the Civil Rights Act being enacted in 1964. Title VII aims to eradicate discrimination based on race (as well as other protected categories) and provides all individuals with equal opportunities regardless of color.

However, there is no question discrimination still exists in today's society and the workplace. Based on recent figures released by the Equal Employment Opportunity Commission (EEOC), complaints of race discrimination have risen over the last 10 years, up from 28,912 in 2001 to 35,395 in 2011.

The European Commission has compromised on quotas but approved a proposal for there to be a 40% objective for female non-executive directors on the boards of listed companies by 2020 (on the Personnel Today website).

According to the Commission, board rooms are still dominated by men, with only 15% of non-executive board members being women and 8.9% of executive board members being women. The aim of the proposal, which was published on 14 November 2012, is to “substantially increase the number of women on corporate boards throughout the EU” and “promote gender equality in economic decision-making”.

The proposal sets “a minimum objective of a 40% presence of the under-represented sex among the non-executive directors of companies listed on stock exchanges” by 2020. The deadline is 2018 for state-controlled undertakings.

The proposed Directive imposes an obligation on listed companies with less than 40% of members of the under-represented sex on non-executive boards to make non-executive director appointments on the basis of “a comparative analysis of the qualifications of each candidate, by applying pre-established, clear, neutrally formulated and unambiguous criteria”. In order to attain the 40% objective, the proposed Directive provides that where there are equally qualified candidates of both sexes for a non-executive director position, a company should give the under-represented sex priority. There is an exception to this where “an objective assessment taking account of all criteria specific to the individual candidates tilts the balance in favour of the candidate of the other sex.”

The proposed Directive is expected to apply to around 5,000 listed companies in the European Union but will not apply to small and medium-sized companies or companies that are not listed.

Even Lady GaGa has weighed in on it, so you know it must be an important issue. And it is hard to not see the YouTube videos of kids with their index cards, even when you don't follow YouTube trends. If you somehow missed it from one of those ways, though, you probably saw something about it on your favorite crime stopper TV show.

What am I talking about?

Bullying.

It's everywhere, and the workplace is not an exception.

When I think of workplace bullying, I remember an episode of Will and Grace where Will Truman's high school bully started working in the same law firm as Will and quickly began making Will "Woman" do his work for him. In turn, Will began faking sick and staying home from work just to avoid the issue until Jack made him stand up for his rights.

As is the case in all half-hour sitcoms, there was a humorous, tidy ending to the whole problem.

If only our real workplace bullying concerns could be wrapped up just as easily.

What Is Workplace Bullying?

Workplace bullying occurs when an employee, often times (but not always) a boss, uses his or her power, whether that power is gained through a higher position in the workplace or through actual strength, to intimidate another employee.

It can be done through making vindictive or condescending comments, embarrassing or humiliating the other employee or employees in front of their peers, or any other unethical mean that makes the employee feel reasonably uncomfortable in the work setting.

Is Workplace Bullying Really a Problem?

According to the Workplace Bullying Institute, 35% of the US workforce say they have been bullied, and that equates to over 50 million workers.

Still, though, there are no current laws that ban workplace bullying, unless the bullying is the result of the victim's membership to a protected class.

In other words, it is not illegal to bully someone just because you do not like them.

While many states are considering a Healthy Workplace Bill that would address these issues, right now it is up to you as the employer to stop this harmful trend.

There are many reasons you should want to do this as well, even outside of basic humanitarian reasons:

• Stop violence. Stopping this harmful behavior before it reaches potentially devastating levels is the best approach.
• Create a positive work environment. Employees who feel safe, and even valued, at work are employees who are going to do their best for their employer. Not only this, but there will be fewer absences of scared employees not willing to face their daily tormenters.
• Weed out the bad seeds. Bullying tendencies in and of themselves should be avoided at all costs, but an employee who is a bully might also tend to have other unsavory characteristics that you want to keep out of your workplace. Getting rid of the mean employee or offering training to help eliminate the bad traits can clear your workplace of more than just bullying.
• Reduce liability. Even though bullying is not illegal, it can lead to other claims that could create liability for the employer, such as harassment or hostile work environments.

Stopping Workplace Bullying

October is National Bully Prevention Month, and this week (October 14 through October 20) is Freedom from Workplace Bullying week. To help recognize this week, take a moment and examine what your workplace is doing to help stop bullying.

There are many things that you as the employer can do to stop bullying in your workplace and one is to support the Healthy Workplace Bill if there is one being considered in your state. In addition, look at your current safeguards. Do you have any or all of the following?

• An anti-bullying policy?
• Training for all levels in topics such as tolerance, ethics and correct workplace behaviors?
• A reporting method that is both well publicized and offers anonymity?
• A discipline procedure that is both effective and consistently used?

These are just a few of the ways you can stop bullying from terrorizing your workplace.

If you want to learn more about this important topic, XpertHR can help.

Have you ever avoided addressing an employee's poor performance, worried that performance management is a difficult task that risks an employment tribunal claim? In Personnel Today's free 60-minute performance dismissals webinar on 17 October, XpertHR consultant editor Darren Newman will address your concerns about managing poor performance.

In the myth-busting performance dismissals webinar, Darren Newman will:

• set out a practical three-step approach to performance management that is fair and lawful;
• explain how employers can raise the issue of a compromise agreement without giving the employee grounds for an unfair dismissal claim; and
• describe how employers should address poor performance in older employees.

Signing up to the free 60-minute webinar only takes a minute, but could save you weeks in preparing for and defending an employment tribunal claim.

• Government announces further proposals to 'streamline employment law'
  
• Government publishes details of employment tribunal fees   
  
• Queen's Speech includes employment law reform  
  

Employee rights are being wound back significantly and  unless one takes the opinion that employees should not be afforded any legal protection at all from unfair dismissal, what is proposed will have a significant effect on the legal landscape. And on employees who risk being inadequately compensated when dismissed.

FAQs addressing various aspects of the Working Time Regulations 1998 and issues arising from disciplinary procedures were popular during July 2012.

Employers also made use of the content in the XpertHR FAQs section on preparing for the Olympics.

1. If an employee works for six hours a day is he or she entitled to a rest break?
2. Can documentation relating to disciplinary warnings be retained after the warnings have expired?
3. What is the minimum amount of rest an adult worker must be allowed?
4. Is it permissible for an employer to state in a job advert that applicants must hold a full driving licence?
5. How should employers deal with employees who spend work time following the Olympic Games on the internet?
6. Where an employee has two jobs which employer is responsible for ensuring that the employee's total weekly hours do not exceed the working time limits?
7. Can employees be required to work from home if the transport system is disrupted because of the Olympic Games?
8. Can an employee take on paid work during her maternity leave?
9. Are promises made during the interview legally binding?
10. What is the minimum statutory provision for paid holiday?

Photo: bettybraun

Has your organisation ever faced an employment tribunal? Does the potential cost and resource make you think it is better to settle a claim before it reaches a hearing, even if you have a strong case? This XpertHR survey will investigate employer practice in handling employment tribunals and provide you with valuable benchmarking data.

A recent press notice by law firm EMW said that the employment tribunal system backlog is heading towards breaking point, with cases having almost quadrupled from 144,900 cases in 2007 to 530,400 at the end of 2011. The Government has announced plans to reform the system, including proposals to require all potential tribunal claims to be submitted for conciliation to Acas (the Advisory, Conciliation and Arbitration Service) first. However, EMW is concerned that this would merely move the problem from one part of the system to another. As Employment Principal Louise Holder comments: "Moving where the caseload falls won't help matters: it just moves the bottleneck from one poorly-equipped part of the system to another. Acas already has a backlog of its own, which a wave of new cases will only add to."

Completing this brief, confidential survey will entitle you to a:

• free copy of the report of our findings on Employment Tribunals, as soon as it is published; and
• free copy of the XpertHR guide on Employment Tribunals, as soon as you have completed the questionnaire.

Don't delay: the closing date for this survey is 4 July 2012.

This week is Carers Week (external website), a national campaign recognising the contribution made by the UK’s six million unpaid carers. Organisations throughout the UK are encouraged to take part, by organising events, running information sessions and recognising the carers with whom they work. One particular aim of this year’s campaign is to create awareness that “recognition by professionals, and by others who impact on carers’ day-to-day lives, can help to make a massive difference”.

When do employees qualify for time off work to carry out public duties?

• The Queen's Speech included a raft of business legislation, which the Government said was aimed at "creating the right conditions for businesses to grow and succeed". These include measures to "overhaul the employment tribunal system, cut unnecessary red tape for businesses and reform directors' pay." XpertHR provides detailed guidance on the Queen's Speech and its implications for employment law and on the specific reforms relating to employment tribunals.
• Venture capitalist Adrian Beecroft's Report on Employment Law, which proposes many radical reforms intended to boost growth (and from which the concept of compensated no-fault dismissals originated) finally saw the light of day. The report generated widespread controversy, including upheaval within the Coalition Government.
• The Enterprise and Regulatory Reform Bill included details of proposed measures aimed at "improving the employment tribunal system". You can read analyses of the Bill from XpertHR, Personnel Today's Laura Chamberlain and from lawyer Laurie Anstis.
• Unfair dismissal compensation could be slashed. Barrister Anya Palmer argues that one proposal within the Enterprise and Regulatory Reform Bill, if enacted, would pave "the way for a major reduction in employment rights" in the future. Palmer points out that the Bill "contains a provision that would give the Government a very broad power to slash compensation for unfair dismissal to a third of its present level at any time in the future, without further debate." She says that this provision may not come into effect in the near future, but notes that "it's not unreasonable to suppose that if the Conservatives won the next election they would promptly reduce the limit across the board." Palmer has also written a related article for Solicitors Journal, entitled Stealth tactics: making unfair dismissal worthless. Here, she notes that "the Government is consulting on a wide range of measures as part of the employment law review, but there has been no consultation on changing the level of compensation. The proposal to reduce compensation simply appeared unannounced in clause 12 of the Enterprise and Regulatory Reform Bill."
  
• 'Settlement agreement' proposals: The Guardian reports that today's second reading of the Enterprise and Regulatory Reform Bill in the House of Commons will additionally include a proposal to introduce 'settlement agreements' for all employers. It says that the proposed 'settlement agreements' will make "it easier for companies to sack their workers by offering them immediate payouts if they agree to leave without any fuss." However, legal expert Darren Newman argues that the 'settlement agreement' proposals represent nothing more than a "cosmetic change" to employment law. He says: "As currently drafted, the only the change that the Bill makes to  the current system is to change the name of  'compromise agreements' to 'settlement agreements' - which is the absolute epitome of a cosmetic change. It has no practical or legal impact whatsoever." (See Update 19 to my Beecroft post and Government to unveil 'settlement agreements' for dismissals by Personnel Today's John Eccleston for further details).
  

[W]e are recreating the work ethic for everybody in Britain. I think that these reforms will be seen in the 2020's as being as important to this country as the trade Union reforms and privatisations were of the 1980s. This is as fundamental as that. This is the purpose of the Coalition Government.

Pensions auto-enrolment remains the topic that is most exercising employers at the moment.

FAQs on the upcoming changes to workplace pension rules and employers' duties towards their workers continue to feature among the most popular FAQs on XpertHR.

Other employers' questions in April's top 10 HR questions cover the provision of references, re-employing redundant employees, additional paternity leave and penalties for misconduct.

1. Which employees qualify for automatic enrolment into a pension scheme?
2. What is a "qualifying scheme" under the pensions auto-enrolment provisions?
3. Must an employer always obtain an individual's consent before providing a reference for him or her?
4. Is an employer obliged to wait a certain period of time before re-employing an employee who was dismissed for redundancy?
5. Do the auto-enrolment provisions affect employers that already provide their employees with access to a pension scheme?
6. Can employers be held liable for harassment that takes place during a work-related social event?
7. Is the mother obliged to return to work before taking her full 52-week maternity leave entitlement for the father to be able to take additional paternity leave?
8. What information must employers provide to employees about pensions auto-enrolment?
9. Where an employee is given a warning for a particular conduct issue, but then commits a different type of misconduct, can the employer move to the next stage of the disciplinary procedure to address that issue or must it start a separate procedure?
10. Under the Equality Act 2010, can an employee bring a claim for harassment where the unwanted conduct is not directed at him or her?

Photo: ryanmilani

When is it appropriate to suspend employees who have had disciplinary allegations made against them? Employers often want to suspend employees whose conduct is being investigated as they may be concerned that the employee will repeat the alleged misconduct or try to influence witnesses or change the evidence. However, the recent case of Crawford and another v Suffolk Mental Health Partnership NHS Trust cast some doubt on employers’ use of suspension pending a disciplinary investigation, with the Court of Appeal expressing concern that suspension is too frequently being used by employers as a "knee-jerk" or "automatic" reaction to certain allegations.

Employers are already preparing for the new pension auto-enrolment rules, which will start to affect the largest employers from October this year. The top ten FAQs on XpertHR for March 2012 include a couple of questions on auto-enrolment, as well as an FAQ on how the increase to the unfair dismissal qualifying period, which takes place on 6 April 2012, will work in practice.

Other questions in the top ten look at redundancy selection pools, time off for antenatal care and variation of contractual hours.

1. When does auto-enrolment come into force?
2. Does the April 2012 increase in the qualifying period for unfair dismissal claims from one to two years apply retrospectively?
3. Can an employer change an employee's hours where there is no contractual clause authorising it to do so?
4. What changes to workplace pension law will be made by the legislation on auto-enrolment?
   
5. If an employee has a really bad attitude, is this a conduct or capability issue?
6. In which redundancy situations will it not be necessary to determine a redundancy selection pool?
7. Can an employer dismiss an employee because he or she is in prison?
8. What rights do employees have in relation to time off work for antenatal care?
9. If an employer pays an employee in lieu of notice, is the payment taxable?
10. Can the transferee change the contracts of the incoming employees upon the transfer of a business covered by TUPE?

Photo:tj scenes

Questions on how employers can change employees' contractual terms and conditions feature in the top ten XpertHR FAQs for February 2012.

Employers also found answers to questions on how to carry out a fair redundancy procedure, what to do if a pregnant employee requires regular sickness absence and various aspects of carrying out disciplinary procedures.

Political objections must be overridden. It is too difficult to hire and fire, and too expensive to take on new employees. It is intellectually unsustainable to believe that workplace rights should remain untouchable while output and employment are clearly cyclical.

Although the coalition agreement may require the chancellor to raise personal tax allowances, he should use the proceeds of spending reductions to cut employers' national insurance contributions across the board. If that is deemed impossible, he should consider targeting such tax cuts on the employment of 16 to 24-year-olds, making them more attractive to employers.

The Chancellor is under pressure from Conservative MPs to relax employment protection laws as part of a "go for growth" package to be included in his Budget on 21 March.

David Cameron is sympathetic to the backbench demands but they are being strongly opposed by Nick Clegg and Vince Cable, the Liberal Democrat Business Secretary. [...] Mr Cable and Norman Lamb, the new Business Minister, will shortly issue a "call for evidence" on a watered down version of the Beecroft report. This would limit the "fire at will" proposal to the three million people employed by firms with fewer than 10 workers. But the two Lib Dem ministers will make clear they have no intention of turning the proposal into law by stopping short of a full-scale consultation exercise. Instead, they favour an informal, conciliatory approach to resolving disputes between employers and staff accused of poor performance.

It is no accident of geography that the US economy is now making real inroads into unemployment, which in Britain is still rising. In America it is virtually as easy to fire as it is to hire, significantly reducing the risks of job creation.

The reluctance of industry leaders to stick their heads above the parapet in part reflects the continued power of 'big' business, which has tolerated oppressive levels of labour protection because it has the management systems and market clout to absorb the costs, and also because these protections are a highly effective barrier to entry.

A new article published today on XpertHR finds that employees who care for dependants often form a silent minority in the workplace, experiencing little understanding or awareness from line managers and colleagues. The article includes input from expert organisations such as Carers UK and provides key practical advice for employers on how best to support carers at work. There is a strong business case for providing support for employees with caring responsibilities, not least higher productivity and discretionary effort on the part of employees. With the number of carers in the workplace set to rise significantly over the next couple of decades due mainly to an ageing population, it is in employers' interests to making provision available for those with caring responsibilities. Typically, this does not involve costly adjustments but could be as simple as tweaking someone's working hours or making sure they are able to contact a dependant at lunchtime to check they are OK. 

Employers have started the year grappling with questions on redundancy, TUPE, performance management and a whole range of other concerns.

Here are the top ten FAQs on XpertHR for January 2012:

1. Does an employee made redundant while on maternity leave have any special rights?
2. Should an employer deal with an employee's poor performance through its disciplinary or capability procedure?
3. Under the Agency Workers Regulations 2010, are agency workers entitled to bonuses that are payable to direct recruits?
4. Can a fixed-term contract be terminated before the end of the term if the post is redundant?
5. Where a transferee has no need for the employees transferred to it under TUPE, can the selection pool for redundancy include only the transferred employees, or must it also include the transferee's existing workforce?
6. Should employers deal with all types of unauthorised absence in the same way?
7. What is a reasonable review period when setting targets for an employee who is underperforming?
8. If an employer provides for pro rata bank holiday entitlement for part-time employees, how should it calculate this?
9. In a TUPE situation is the transferor required to obtain its employees' consent before passing on information about them to the transferee?
10. Is an employee who is accepted for voluntary redundancy entitled to a statutory redundancy payment?

Photo: Steve-h

There will be an additional bank holiday in 2012 to celebrate the Queen’s Diamond Jubilee. The traditional bank holiday at the end of May will be moved to Monday 4 June 2012 and there will be an additional Jubilee bank holiday on Tuesday 5 June 2012 (see the Directgov website).

Is poor performance a capability or conduct issue for employers? Should employers use their disciplinary procedure or a separate poor performance procedure to deal with employees’ poor performance? Can employers dismiss employees because their work performance is poor?

Can employers dismiss employees who are convicted of a criminal offence they committed outside the workplace and in their own time? How about employees who are being held in custody? Not necessarily (which might come as a surprise to some employers).

New FAQs setting out the new rules on the VAT treatment of taxable benefits under salary-sacrifice arrangements, which are due to change from 1 January 2012, have been popular on XpertHR over the last month.

As a result of a decision of the European Court of Justice, from 1 January 2012, employers will have to account for VAT based on the amount of salary given up by the employee under a salary-sacrifice scheme. The FAQs deal with how the new rules affect cycle-to-work schemes, retail voucher schemes and chidcare vouchers.

Unsuprisingly, employers' questions on the Agency Workers Regulations 2010, which are in force from 1 October 2011, remained among the most frequently visited FAQs on XpertHR. Other questions in the top ten for September cover sick pay, interns, variation of contract and time off for employees to attend court.

The Agency Workers Regulations 2010 come into force on 1 October 2011. XpertHR's FAQs on the Regulations have been the most popular questions on the site during August, as employers make sure they are prepared for the significant changes they will face in October.

The FAQs explain the basics that all employers should be aware of and go into detail about the more complex provisions of the Regulations. Further FAQs on the Agency Workers Regulations 2010 will be added to the FAQs section in the next few weeks.

Employers are preparing for the impact of the Agency Workers Regulations 2010, which come into force on 1 October 2011. The XpertHR FAQs section answers employers' questions on why they need to think about how the Regulations will affect them and the details of their specific obligations under the Regulations. These FAQs top the list of most popular questions for June 2011.

Other popular questions cover the withdrawal of redundancy notice, varying terms and conditions following a TUPE transfer and the termination of fixed-term contracts in a redundancy situation.

The top ten FAQs on XpertHR for May 2011 paint a bleak picture of what was engaging HR professionals last month, with questions about redundancies and pay cuts among the most popular.

New FAQs on bumped redundancies feature in the top ten, along with FAQs on handling redundancies in a TUPE situation, and the procedure to follow if the employer decides it needs to cut employees' pay.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are complex and any organisation involved in transferring staff, outsourcing, or buying or selling a business needs to fully understand and comply with them.

The one-day XpertHR conference on Managing TUPE staff transfers, which takes place on 26 May 2011 in Manchester, will provide delegates not only with relevant legal advice but also practical guidance.

Speakers at the conference will share their expertise on:

• When TUPE applies and what constitutes a service provision change, and which employees TUPE applies to;
• How to carry out an effective information and consultation processes;
• The pre-transfer due diligence requirements, including providing employee liability information;
• Making post-transfer changes, and navigating restructuring and redundancies; and
• Staff transfers in the public sector.

XpertHR has put together a resource pack, rounding up information on, and relevant to, TUPE, to help subscribers get the most out of the conference. The pack provides legal guidance, practical advice and covers the most recent case law.

All XpertHR subscribers who book places on the XpertHR conference on Managing TUPE staff transfers are entitled to a £50 discount (per delegate). Subscribers, after logging in, can find the code needed to claim the discount here.

Last months' top ten FAQs on XpertHR highlight the new legislation employers have had to get on top of in April, and of course the multiple bank holidays, which always throw up questions to be answered. The removal of the default retirement age continues to exercise HR departments and additional paternity leave is beginning to become a practical concern, even though the legislation itself has been in force for a year.

One piece of legislation, not yet in force but in the news last month, is the Bribery Act 2010. The Government published its official guidance on the Act at the end of March. Our FAQ on "adequate procedures" to prevent bribery was updated to reflect this.

On 3 April 2011, the right for employees to take additional paternity leave became a reality for employers. XpertHR’s new good practice guide on fathers (subscription required), written by Liz Morris from Working Families, provides guidance to help employers support new and expectant fathers and ensure business continuity.

Becoming a father can be a time of excitement and a daunting leap into the unknown. Coping strategies vary, but if employees plan how they will achieve a balance between their work and family commitments and how their work will be dealt with if they are intending to take additional paternity leave, they will have a better sense of control over the transition process. Support from the employer is also likely to reduce stress and maximise employees’ performance. The XpertHR good practice guide on fathers sets out the steps that employers can take to support employees, for example putting together employee guides to help them develop a strategy to combine work and family, and arranging to cover an employee’s role if he chooses to take additional paternity leave.

XpertHR's report on the tribunal judgment in Williams v Bannatyne Fitness Ltd ET/1311340/09 has been the subject of some discussion on Twitter this week.

Our report of the employment tribunal's decision in this case is fair and accurate and we stand by it.

In this case, Bannatyne Fitness Ltd was found to have discriminated on the grounds of disability against an employee by failing to make certain reasonable adjustments. In showing how this employer got it wrong and acted unlawfully in failing to make reasonable adjustments, the case is a salutary reminder for employers to apply common sense when dealing with a disabled employee.

You can see the judgment of the employment tribunal here: Williams v Bannatyne Fitness Ltd: the transcript (PDF, 695KB).

As it is not just International Women's Day (IWD) today but the 100th anniversary of the first IWD ever held, the sheer scale of events, debate and activities going on around the world means that it is possible to find something on pretty much every conceivable theme.

The draft Regulations that will remove the default retirement age and the statutory retirement procedure have now been published (albeit with a "drafting error" (subscription required), which the Government has confirmed will be rectified), so we now have more details of how the transitional period will operate. The XpertHR FAQs on the abolition of the default retirement age have been updated to reflect developments during February, including changes to the Acas guidance (PDF format, 856K) (on the Acas website) on the timing of retirements under the transitional provisions.

The retirement questions remained among the most popular on XpertHR last month, as did FAQs relating to the additional bank holiday.

Other popular FAQs cover redundancy consultation, fit-notes and underperforming fixed-term employees.

Abolish the right to request flexible working and training.

Wherever it is practicable (hospitals and schools, not the army and navy) there should be an end to national collective pay bargaining.

Introduce a minimum £500 employee deposit in employment tribunals to deter weak cases.

These are among a selection of radical policy changes put forward by the Institute of Directors (IoD).

Employers are still trying to get their heads around how to deal with the extra bank holiday for the royal wedding in April. Does an extra bank holiday mean an extra day off for all employees? The XpertHR FAQ that explains the position tops the list of popular employers' questions for January 2011.

FAQs on retirement and the abolition of the default retirement age (DRA) are still being consulted by employers. These FAQs have been updated following the Government's confirmation that the abolition of the DRA will go ahead over a transitional period from 6 April 2011, and the publication of new guidance from Acas on working without the default retirement age (PDF format, 348K) (on the Acas website).

Over 150 new model policies and documents have been added to XpertHR in 2010. But what have been the most popular? The XpertHR employment intelligence blog provides a round-up.

During the run-up to Christmas, the winter weather (see the BBC and Met Office websites) is not the only concern for employers. Avoiding the problems that can arise from the work Christmas party and dealing with competing requests for holiday from employees can also be a challenge.

It seems like a good time for a reminder of what employers can do if, because of the heavy snow, school closures and travel chaos, employees can't get into work, or the employer has to close the workplace. Do they have to pay employees, or can they require employees to take the time as holiday or unpaid leave?

The restriction on asking job applicants about their health or disability seems to be the area of the Equality Act 2010 that is concerning employers most, with FAQs about pre-employment health questions continuing to feature in the top ten HR questions on XpertHR last month.

FAQs about the effect on employers of the abolition of the default retirement age next year also continued to be popular in November.

Latest research from XpertHR finds that two in three organisations do not have a behaviour policy in place for the work Christmas party.

The application process for the estimated 70,000 volunteering roles at the London 2012 Olympic Games is open until 27 October 2010. With employers facing up to successful applicants needing long periods of time off in summer 2012, we provide an example policy showing how employers can support those who wish to volunteer during the Olympics [subscription required].

About a year ago, XpertHR decided to increase the amount of coverage it was giving to employment tribunals, with regular reports on interesting employment tribunal decisions. We've now taken the next step with the launch of our new Tribunal Watch blog, which is dedicated to highlighting developments in the employment tribunals.

Two new guides on the redundancy selection process have been published recently on XpertHR. One guide covers how to define the redundancy pool, from which employees will be selected; the other covers the redundancy selection criteria that should be used, and how to apply those criteria fairly.

FAQs providing information about the impact of the Government's announcement on the abolition of the default retirement age have been popular in the last month. In particular, employers have been looking at the expected timetable for the changes.

New questions on the Bribery Act 2010 and on using comments posted on employees' Facebook pages as evidence in disciplinary proceedings also feature in the list of top ten FAQs on XpertHR for August 2010.

Other popular FAQs deal with ending fixed-term contracts early, either for reasons of redundancy or poor performance.

A tribunal in Northern Ireland has awarded £45,000 to a woman whose employer pretended that she was working part time while she was pregnant so that it didn't have to pay statutory maternity pay to her.

A woman who works as a witch at the Wookey Hole tourist attraction in Somerset has been caught auditioning on the X Factor television programme on a day when she told her employer that she was ill, reports the the Daily Telegraph website.

A group of factory workers who have to clock off and have deductions made from their pay every time they go to the toilet are taking their employer to an employment tribunal, according to the Daily Mail website.

A round-up of links to news items on recent employment tribunal rulings, including: a police officer who was forced out after blowing the whistle on a colleague; an investment banker who is seeking £13.5 million after successfully claiming sex discrimination; and an Israeli lecturer who claimed religious discrimination after she converted to Christianity.

A German court has found that a policeman is entitled to an extra week's annual leave or additional pay because the time it takes him to get dressed is not included in his working hours, reports the Daily Telegraph website.

Employers’ procedures on annual leave have been put to the test over the last few months. First we had the European Court of Justice decisions of Stringer and Pereda, which dealt with the interplay between sickness and annual leave. Then the snow arrived. Again and again. With schools on the cusp of the summer holidays, HR professionals will once again need to get their heads round annual leave matters, as employees make competing and last-minute holiday requests.

An employment tribunal judge had a lucky escape when an unsuccessful claimant threatened him with a meat cleaver, the the Daily Mail website has reported.

Most employers will be aware that a new right for employees to make a request in relation to study and training came into effect on 6 April 2010. However, there appears to be a common perception that the right is to request time off to undertake study or training. Indeed, the Business Link website refers to the right as "the right to request time to train". However, applications made under the statutory provisions are likely to extend beyond requests for time off for training.

New FAQs on the World Cup have been popular on XpertHR in the last month, as employers prepare for any HR-related issues that might arise when the tournament starts next week. The world cup FAQs cover issues such as attendance and potential disciplinary issues.

The top ten frequently asked questions on XpertHR in May also includes questions on fit notes, the calculation of redundancy pay and the retention of employees' personnel files.

In this month’s XpertHR outlook video we speculate about what the coalition Government’s Programme for government (on the Cabinet Office website) could mean for the workplace and employment law.

Scoring employees against redundancy selection criteria is tricky at the best of times, and as Personnel Today recently reported, even leading employment law firms can get into trouble. However, hidden behind the slightly misrepresentative reports that Eversheds was simply “afraid” of sacking an employee on maternity leave, the case highlights an important legal dilemma for employers: how far does the sex discrimination legislation allow employers to protect women who are pregnant or on maternity leave?

Employees’ religion or beliefs don’t usually have an impact in their workplace, and actual claims are rarer still. Race and sex discrimination (to take two examples) are much more prevalent in society than discrimination based on religion or belief, but cases involving the latter provoke strong opinions and naturally get more publicity. The Times recently reported on the Pagan Police Association (external website), whose members have now (apparently) been given the right to take time off to celebrate their various festivals.

April's most popular HR questions have been dominated by the new legislation introduced on 6 April, and by worries about employees not being able to get into work, presumably caused by the threatened rail strike at the beginning of the month as well as the disruption caused by the Icelandic volcanic ash.

So the top ten frequently asked questions for the month include questions on additional paternity leave, the right to make a request in relation to training, and fit notes, as well as questions on whether or not an employee who doesn't attend work due to travel disruption should be paid.

The High Court has sentenced an ex-employee of an investment management firm to three months in prison (suspended for 18 months) after he admitted carrying out personal account trading in breach of Financial Services Authority (FSA) rules; forging a letter from his brokers; destroying evidence on his computer; and failing to comply with a search and seizure order.

Professional Game Match Officials (PGMOL), the body which appoints referees and match officials to league and premier league matches, has fallen foul of the law prohibiting age discrimination as reported by trade union Prospect.

Workers at a Copenhagen Carlsberg warehouse returned to work yesterday after striking over their right to drink beer on the job.

Workers were previously allowed to drink the produce while working, but Carlsberg has changed its policy, limiting the warehouse staff to one bottle of free beer a day, to be consumed while on their lunch break. The Associated Press reports that the brewery's drivers are still entitled to their three bottles a day.

Regulations introducing additional paternity leave and additional statutory paternity pay (both on the OPSI website) came into force on 6 April 2010. Qualifying parents will be able to transfer leave and pay from the mother to the father. Eligible fathers will be able to take between two and 26 weeks’ leave from when the baby is 20 weeks old. The new rights will apply in relation to babies due on or after 3 April 2011. The right to take additional paternity leave and pay will also apply in relation to children matched for adoption on or after 3 April 2011.

A district mayor in Tokyo has become the first local government leader in Japan to take paternity leave, reports the BBC website.

What issues do line managers deal with on a daily basis? We’ve gathered data to come up with our 10 most popular line manager briefings since January 2009 (which might go some way to providing the answer).

The Ministry of Justice has introduced an employment tribunal “fast track” scheme that is designed to help employees recover tribunal awards from their employer where it has failed to pay up.

The scheme provides employees with access to an extended service from the High Court Enforcement Officers. An officer will complete the court process for the employee and undertake enforcement as swiftly as possible. The relatively low cost to the employee is a £50 court fee, which will be added to the amount that their employer owes.

The scheme will take effect from 6 April and has been created to overcome the high numbers of employers failing to pay tribunal compensation. Research by the Ministry of Justice found that 39% of employees who had been awarded compensation by tribunals had not been paid and just 53% had been paid the full amount.

New FAQs on appeals against disciplinary decisions are among the most popular employers' questions on XpertHR in March.

Other questions cover the accrual of annual leave where an employee is paid in lieu of notice; various disciplinary-related issues; and a topical Easter question dealing with potential religious discrimination issues arising from bank holidays that are linked to Christian festivals.

You’ll probably be aware of the new right for employees to make requests in relation to study and training, which came into effect today, 6 April. However, what you may not realise is that the right covers a lot more than just requests for time off.

A round up of links to news items on recent employment tribunal rulings, including: an unsuccessful age discrimination claim by a TV journalist; the first decision on trade union blacklisting; and an award for a chip shop worker who was dismissed for giving away chips.

Whether you are an employer, employee or doctor, now is a good time to get familiar with the layout of the new fit note, which replaces the traditional sick note from 6 April 2010. A new entry on the statement of fitness for work [subscription required] in the XpertHR policies and documents section brings together the Government's sample version, official guidance for employers and doctors, and an overview of the law relating to the new fit note.

The recent court martial (on the Daily Telegraph website) of the commander of a British nuclear submarine who crashed his vessel into a large rock provides a useful reminder that there are occasions when a single mistake can justify dismissal.

The Equality and Human Rights Commission (EHRC) has caused a bit of a stir with its draft Employment Statutory Code of Practice on the Equality Bill (external link), specifically in relation to discrimination on the ground of religion or belief.

There's a new outlook video first published today on the main XpertHR site, where Jo Stubbs and I discuss recent developments in the law on statutory minimum annual leave and sickness absence. Here it is.

With less than a month to go until the introduction of the right for employees to make a request in relation to study or training, time is running out to get your procedure in place and to communicate it to your workforce.

It is sometimes necessary to suspend an employee while an investigation is carried out into a disciplinary matter; this might be the case where the employee is suspected of gross misconduct, or where colleagues may feel at risk if the employee remains at work during an investigation.

Suspension will not always be the most appropriate route and employers should always consider alternatives. If they do go ahead with the suspension, employers should take care to carry it out in a fair and reasonable way, which means keeping it under review and making sure it is not unnecessarily lengthy, and paying the employee in full (unless there is contractual provision for unpaid suspension).

• make it unlawful for organisations to refuse employment or sack individuals as a result of appearing on a blacklist
• make it unlawful for employment agencies to refuse to provide a service on the basis of an individual appearing on a blacklist; and
• enable individuals or unions to pursue compensation or solicit action against those who compile, distribute or use blacklists.
  

A new FAQ on whether or not an employee has the right to appeal a redundancy decision, which was added to XpertHR at the beginning of the month, tops the list of February's most popular FAQs.

The top 10 also includes frequently asked employers' questions on other aspects of redundancy rights, the law relating to fixed-term contracts, and a number of other employment law issues.

Gordon Brown has come under fire amidst bullying allegations by staff at No.10, Downing Street. According to Christine Pratt, CEO of the National Bullying Helpline, the charity has received several “confidential” enquiries from the PM’s staff. Somewhat controversially, Ms Pratt, who is quoted on the BBC website, has decided to go public with this information.

A round up of links to news items on recent employment tribunal rulings, including: compensation for a harassed female soldier; a decision on sickness during annual leave; and the resolution of a zero-hours contract dispute.

Employees who are on adoption leave, or who are in the process of adopting a child, have specific rights in a redundancy situation, similar to those of employees who are on, or about to go on, maternity leave.

Employers dealing with these circumstances can select such an employee for redundancy, as long as it is a genuine, procedurally fair redundancy, and the decision to select the employee is not due to his or her adoption leave.

A new guide in the XpertHR "how to" section gives practical guidance to employers on dealing with employees on adoption leave, or who are adopting a child, in a redundancy situation (subscription required).

According to research, flexible working is beneficial to the physical and mental health of employees. Apparently, those who can decide on their working hours may even have healthier blood pressure and heart rates. The findings, which are available on the BBC website, come after a think tank, the New Economics Foundation (“NEF”), recently recommended a 21-hour week for all employees.

It is common knowledge that employees are legally entitled to be accompanied at disciplinary hearings by a work colleague or union official. But most organisations' disciplinary procedures do not make mention of whether or not employees have the right to legal representation at internal disciplinary meetings. Two recent rulings may make some employers think again when next updating their disciplinary procedure.

Fans of the Working Time Regulations 1998 (SI 1998/1833) will know that there are long-running issues over the interaction of holidays and sickness absence. A particular problem is whether or not employees who are unable to take statutory holiday due to sickness absence can carry over that holiday into the following leave year.

The statutory maximum unfair dismissal compensation award from 1 February 2010 is £65,300 - a high price to pay for not following a disciplinary procedure deemed to be fair and reasonable.

In Metrobus Ltd v Cook (EAT/0490/06) the Employment Appeal Tribunal (EAT) ruled that an employment tribunal did not err in increasing the amount of unfair dismissal compensation by 40% where an employer had failed to follow the statutory disciplinary and dismissal procedure.

IRS is conducting research to look at how employers deal with grievances and disciplinaries. We also want to collect feedback on the reaction to the new Acas code, and whether it has helped or hindered in dealing with employee grievances and disciplinaries.

Taking part in this confidential survey will give you a unique opportunity to benchmark your organisation's procedures for dealing with individual disputes against other employers in your sector.

Some mothers may have attributed a lapse in memory or concentration to their pregnancy or new born baby. Australian researchers, however, have confirmed that a woman’s brain is not adversely affected by pregnancy or motherhood.

Supporting women who are due to go on maternity leave, and those who are returning from maternity leave, can help employers retain experienced and dedicated employees and ensure that they are working to their full potential. There can be a number of significant benefits to business, including saving on recruitment and training costs and ensuring productivity levels are at their peak. However, knowing what practical support to give pregnant women or new mothers can be difficult. That’s why at XpertHR we’ve commissioned a good practice guide on maternity from Liz Morris of Mayfield Associates.

Employees have a statutory right to take time off work for a myriad of reasons ranging from parental leave to dealing with care arrangements. One survey found that 34% of employees needed to take time off for an emergency involving a dependant. There’s even a new right for employees to request time off for training, due to come into force in April this year.

The transfer of staff where TUPE applies on the sale of a business or transfer of a service is an area that invariably causes headaches for the HR teams involved. Getting to grips with even just the basics of TUPE can raise complex questions and practical difficulties. The IRS conference on managing successful TUPE staff transfers aims to refresh your understanding of the basics, as well as looking in detail at more advanced issues arising from TUPE transfers.

We've put together a resource pack to accompany the conference, which brings together the information and guidance on TUPE that is available on XpertHR, to help delegates get the most out of the conference. If you can't make the conference, the resource pack will still be a useful tool in updating your team on the essentials and latest developments in the law on TUPE.

Do you need to know about employment law in France? The latest European employment law guide added to XpertHR looks at key elements of employment law in Frances as it applies to: recruitment and selection; pay and benefits; employee rights; contracts of employment; training and development; equal opportunities; industrial relations; health and safety; and termination of employment.

XpertHR regularly publishes information on industrial relations law and practice across Europe - providing expert analysis of developments at European level and in individual European countries. In addition, other guides to national employment law in European countries include: the Netherlands; Italy; Germany; Greece; Poland; and Ireland. For ease of reference, we’ve rounded our European information up on one European employment law and practice page.

Remember that we want to provide information on the countries that are relevant to you in your HR role - so let us know which countries you’d like to see guidance on in the future.

Snow chaos across the UK means many employees can't get to work, through no fault of their own, because travel is not possible and/or schools are closed. Many believe they are entitled to be paid as usual in these circumstances - and are unhappy when they find otherwise.

A blog post of mine on snow, pay and employment rights from last February has seen a flurry of comments in the past few days, so I thought it would be worth returning to the issue today.

There will be an additional bank holiday in June 2012 to mark the Queen's diamond jubilee. The late May bank holiday will be moved to 4 June 2012 and 5 June will be made into an extra bank holiday - according to the Government press release, this will give us the chance for a "long weekend of celebration".

Have you ever pondered any of the following when dealing with what promised to be a straightforward disciplinary matter: your options where you suspect that an employee is guilty of gross misconduct but you have no concrete proof? What scope you have to discipline an employee whose claim of harassment turned out to be unfounded? How to respond to a 16-year-old employee who is insisting on his mum accompanying him to his disciplinary hearing?

Want to receive the answer to a frequently asked HR question every day? If you’re on Twitter, you can do so by following HRdailyquestion. The questions come from the popular XpertHR FAQs section, which contains over 1,000 frequently asked HR questions - and more importantly the answers.

A round up of links to recent employment tribunal rulings, including a lorry driver who was unfairly dismissed after a row with a customer, a straight teacher who lost his sexual orientation discrimination claim, and a Northern Ireland industrial tribunal ruling on police officers' shifts.

The Department for Work and Pensions has published some of the key employment-related statutory rates for April 2010, including statutory maternity pay (SMP), statutory adoption pay (SAP), statutory paternity pay (SPP) and statutory sick pay (SSP).

The maximum unfair dismissal award will reduce from £66,200 to £65,300 from 1 February 2010.

The Employment Rights (Revision of Limits) Order 2009 revises the limit in line with the decrease in the retail prices index between September 2008 and September 2009 - this was -1.4%.

There was a one-off increase to the maximum week’s pay used to calculate certain awards, including statutory redundancy pay and the basic unfair dismissal award, on 1 October 2009. This rose from £350 to £380. The legislation that brought this one-off rise into effect excluded, for a single time only, the operation of s.34 of the Employment Relations Act 1999, which normally changes this limit, along with the maximum unfair dismissal award, on 1 February. On this occasion, the maximum of a week’s pay for these purposes will therefore remain at £380.

For further information see Maximum unfair dismissal compensation award to decrease.

Around 50 new model policies and documents have been added to XpertHR in 2009. But what have been the most popular? The XpertHR employment intelligence blog provides a round-up.

As usual, 2009 was a busy year in the employment tribunals, courts and in the European Court of Justice. But what employment law cases can we look forward to in the next 12 months? Here are 10 significant employment decisions expected in 2010.

IRS is conducting benchmarking research into paternity and adoption leave. Completing this brief, confidential survey on paternity and adoption leave will entitle you to a free copy of the report. The closing date for this survey is Monday 14 December 2009.

The top 10 most popular FAQs on XpertHR during November 2009 include some recently added questions on dress codes, including whether employers can require male employees to keep their hair short, and questions on flexible working requests, annual leave entitlement when an employee receives a payment in lieu of notice and opting out of the 48-hour week under the Working Time Regulations.

A study by the National Childbirth Trust, which recently surveyed over 1,500 mothers who returned to work after having a baby, has revealed that 39% of mothers surveyed found returning to work difficult or very difficult. 31% said that their relationship with their boss had deteriorated since becoming pregnant and 32% found that their promotion prospects had been reduced since having a baby.

Despite the reported (on the Independent website) cancellation of work Christmas parties by many employers, the festive party season is kicking off for most people, with an increase in evening social events (work related or otherwise) and long lunches. Employers may have to address the problem of some employees coming to work still suffering the effects of the previous evening’s over-indulgence in alcohol, or returning to work the worse for wear after a liquid lunch.

A round up of links to recent employment tribunal rulings, including a decision that a spiritualist was not discriminated against because of his beliefs, an £800,000 payout for a former News of the World reporter who claimed bullying, and £440,000 compensation for a council equalities officer who was dismissed.

A company boss has been jailed for forging a contract of employment and a warning letter after a former employee accused him of sexual harassment, reports the BBC website.

A round up of links to recent employment tribunal rulings, including a £190,000 payout to four redundant managers, a successful tribunal defence by Bollywood star Shilpa Shetty's restaurant group, and an unfair dismissal claim involving a missing barrel of beer.

Campaigners are calling for a change in the law giving women who use a surrogate mother to have a baby for them rights to matenity leave and pay, according to London Today.

While surrogacy is relatively uncommon, XpertHR has received queries from subscribers about the maternity rights of surrogate mothers and the women for whom they have a child. Their questions have been answered in the XpertHR FAQ section:

• Will a surrogate mother be entitled to paid maternity leave?
• Will a woman for whom a surrogate mother gives birth to a child be entitled to paid maternity leave?

A round up of links to recent employment tribunal rulings, including compensation for employees at a printing firm who were not warned of redundancy, the failure of Gloucestershire Police to make reasonable adjustments for a dyslexic police officer and an unfair dismissal claim by a delivery driver who was caught urinating in public.

A shop assistant who was informed by the Performing Right Society (PRS) that she could not sing at work without a licence has been given an apology, reports the BBC website.

The Government has said that the Agency Workers Regulations, which will implement the Temporary Agency Workers Directive, will come into force on 1 October 2011, just two months before member states' deadline of 5 December 2011.

Dealing with employees who have recently been bereaved is difficult for employers. They need to treat employees who have lost a partner or close relative with sensitivity but at the same time will wish to avoid major disruption to their business and too much additional pressure on the bereaved employee’s colleagues. Questions about time off rights and how to help an employee who has returned to work arise.

With the 2009 Conservative Party conference taking place in Manchester this week, and a general election looming, XpertHR looks at the employment law changes that an incoming Conservative Government might make.

It appears that the Labour government is dreaming up new schemes to extend flexible working beyond the current parental rights agenda. According to newspaper reports, the party's pre-election manifesto includes a measure that would give workers the right to accumulate paid leave lasting as long as a year by working additional hours. This is apparently based on a Dutch model and sounds like a cross between flexible benefits and unpaid sabbaticals.

Following the Government’s recent confirmation that it intends to push ahead with proposals to allow mothers to transfer the second six months of their maternity leave to fathers, a consultation has been launched including draft Regulations that set out how the proposals will be administered.

Plans to allow fathers to benefit from up to six months' additional paternity leave if the mother returns to work before the end of the maternity leave period to which she is entitled are to go ahead despite the recession, the Government has confirmed (on the News Distribution Service website).

Tennis star Kim Clijsters has won the US Open (on the BBC website) just months after coming out of her two-and-a-half year retirement during which she had a child.

The Master of the Rolls, Lord David Neuberger, who declined to move to the Supreme Court, has said that it was dreamt up ''over a glass of whisky'' by Tony Blair. Read more on the Telegraph.

Until 31 July 2009, Law Lords sitting as a committee of the House of Lords acted as the highest court of appeal in the country. From next month, while independently appointed Law Lords will continue to hear appeals, they will do so in the confines of an independent and geographically separate institution; the Supreme Court, which will be housed in Middlesex Guildhall in Parliament Square.

Questions on swine flu and the workplace continue to feature strongly in our chart of the most frequently accessed FAQs on XpertHR. The new FAQs added to the bank holidays section are also proving popular.

Other questions that HR professional have been looking at this month deal with retirement notice periods, calculation of continuity of service for fixed-term employees, and pay for employees taking time off for fertility treatment.

The most common questions that employers raise about bank holidays concern part-time workers and their entitlement to bank holidays. In particular, confusion arises over the position of part-time workers who don’t normally work on a Monday: are they entitled to time off in lieu, or does their working pattern mean that they simply lose out on many bank holidays?

The answers to this and other frequently asked questions on bank holidays have been added to the XpertHR FAQs section, in time for next week’s bank holiday.

Yesterday, the Equality and Human Rights Commission (EHRC) commenced legal proceedings against the BNP asserting that both its constitution and membership criteria - by restricting membership to particular ethnic groups and those who have white skin - are in breach of the Race Relations Act 1976 (RRA).

The EHRC has applied for an injunction against the BNP requiring it to comply with the RRA, and its application is due to be heard on 2 September 2009. If the BNP fails to comply with an injunction requiring it to open up its membership it may well be subject to criminal sanctions. Read more on the EHRC website

It has always been good practice to keep in contact with employees on maternity leave, even when the law was silent on this point. The law was changed in April 2007 to allow employers to make "reasonable contact" with employees on maternity leave. Three model letters added to XpertHR envisage situations where contact may take place.

Matt Single, the BNP's former security chief, and his wife Sadie Graham, have been charged by Dyfed-Powys Police in relation to the leak of 12,000 BNP members' personal details last November. The details that were revealed included names, addresses, mobile phone numbers and the names and ages of children in a "family membership". Read more on the Times website.

Data that consists of information about a person's political opinions constitutes "sensitive personal data", and is comparable to information about, for example, a person's physical or mental health, religious beliefs or sexual orientation. The Data Protection Act 1998 lays down specific guidelines for the handling of sensitive personal data. See Data protection in XpertHR's employment law manual (subscription required) for guidance on compliance.

Flash Sushi is set to employ naked female models so that patrons may indulge in a Nyotaimori dining experience and eat sushi directly off their naked bodies. The price tag? A mere £250. Read more on the telegraph website.

Despite much speculation that the Government was set to ditch its plans to extend statutory maternity pay (maternity allowance and statutory adoption pay) to 52 weeks and increase paternity leave from two to 26 weeks, the Department for Business, Innovation and Skills has confirmed that "it remains the Government's goal to extend maternity and paternity rights, we are considering the timing of that extension".

Any sensible employer should realise the importance of making maternity leave run as smoothly as possible, so that valued members of staff are more likely to return to work after their leave. One important tool is the pre-maternity leave interview.

The latest guide in the XpertHR “how to” section looks at the issues for employers to consider to ensure that they comply with their legal obligations towards fixed-term employees who are pregnant or on maternity leave.

Swine flu and the workplace - it comes as no surprise that many of the most frequently accessed FAQs on XpertHR throughout July were on this subject (see Swine flu - guidance for employers for up-to-date information and guidance). Other popular questions cover breaks for new mothers to express milk and the special rules for employees made redundant while on adoption leave. Most employers are aware of the laws protecting employees made redundant while on maternity leave, but remember that they apply to employees of either sex on adoption leave too.

Following on from the High Court ruling in R (on the application of G) v Governors of X School and Y City Council, the Court of Appeal has now said that a doctor can be accompanied by a lawyer at a disciplinary hearing in circumstances where he or she could be barred from employment in the NHS.

I attended the hearing of the Age Concern retirement case at the High Court today. I've only attended the second day of a three day hearing so can't pretend to be able to give a balanced view of all the evidence, but I can give you an idea of a few of the arguments raised today. The High Court is being asked to decide whether the default retirement age (which allows employers to set a mandatory retirement age at 65 or above) is lawful. The case (known as the Heyday case) continues on Monday, but there won't be a decision until some time in the Autumn.

The High Court hearing in the case brought by Age Concern, challenging mandatory retirement, begins today. Age Concern argues that the default retirement age of 65 is unlawful. If the case is successful, employers will no longer be able to use mandatory retirement ages (unless they can justify doing so for reasons connected to social policy).

I was interviewed by Personnel Today about the issues to be decided and the implications of the case for employers. You can see the video on the Personnel Today website.

Every year a small number of employees experience a stillbirth or lose their baby shortly after birth. In such circumstances, employees should be advised of their maternity rights.

Workers have the right to be accompanied at a formal disciplinary or grievance hearing, but can the companion be a solicitor? Under the statutory right in s.10 of the Employment Relations Act 1999, the companion is limited to a trade union official or a work colleague (although, of course, the organisation’s policy may allow other categories of companion, such as a partner or friend). Many employers will therefore be concerned to learn that, in a recent case - R v Governors of X School - the High Court held that a teacher undergoing a disciplinary process was entitled to be represented by his solicitor.

The case of Leslie Seldon, the solicitor who challenged his firm's decision to retire him at age 65, is being heard this week at the Court of Appeal. The case is important because it will hopefully give some clarification on when age discrimination can be justified. Mr Seldon was a partner in the firm and so the default retirement age did not apply (the default retirement age allows employers to set a retirement age of 65 or above without having to justify it - but it only applies to "employees", not partners).

Throughout June 2009 what were HR professionals asking? The top 10 most frequently visited FAQs on XpertHR in the last month include some recent additions to the site on the subject of gender reassignment and toilet facilities, and whether or not the entitlement to a 20-minute rest break arises after every six hours worked. These questions were suggested by subscribers.

Other questions in the top 10 look at workplace maternity rights for surrogate mothers and the women for whom they give birth, and dismissal where the employer has previously granted an employee’s request to carry on working beyond retirement age.

Workers struggling to keep cool at work may feel empathy with Andy Murray who complained that the new roof at Wimbledon lead to such humid conditions that he could not perform at his best.

Support for an end to the "default retirement age" appears to be growing, ahead of the High Court hearing of the Age Concern and Help the Aged judicial review of the age regulations next month.

The Commons Work and Pensions Committee will recommend that the default retirement age, which allows employers to retire employees at age 65 without giving a reason or justifying the decision, should be scrapped. In its report into pensioner poverty, due to be published next month, the Committee will highlight the economic reasons for abolishing mandatory retirement now, rather than waiting for the review planned for 2011.

Six police officers have been suspended in the face of allegations that they subjected suspects to waterboarding; a torture technique that simulates the experience of drowning. (The technique last hit the headlines in 2007 when it was reportedly used by the CIA on Al-Quaeda suspects with the authority of the United States Department of Justice.) Read more on the Times website (external website).

Well, they are in France anyway, according to a recent ruling by the Supreme Court. The contestants of the french version of Temptation Island, l'Ile de la Tentation, were held to be workers entitled to overtime, holiday pay, and compensation for wrongful termination. Hot on their heels (or should that be flip-flops?), several other l'Ile de la Tentation contestants have now launched legal proceedings. Quote of the week goes to the lower court that dealt with the case, which stated "Tempting a person of the opposite sex requires concentration and attention". Read more on the Telegraph website (external website).

The two May bank holidays were occupying HR professionals last month, prompting the question: are part-time workers entitled to bank holidays? Another popular question concerned how to deal with bank holiday entitlement for employees on maternity leave.

Other frequently asked questions focus on redundancy and alternatives to redundancy, including whether or not an employee’s salary is protected if he or she accepts a less well-paid position as an alternative to redundancy.

Photo: Valerie Everett

Plans to allow fathers to benefit from up to six months' additional paternity leave if the mother returns to work before the end of the maternity leave period to which she is entitled have been shelved, according to a report in the Daily Telegraph (external website).

Justice Secretary Jack Straw has announced new measures to improve the enforcement of employment tribunal awards. High Court Enforcement Officers will now have power to recover employment tribunal awards and settlements reached through Acas conciliation.

History will record April 2009 as a good month for British workers, with statutory holiday entitlement increasing to 28 days, but not everybody may agree. According to recruitment company HireScores, a large percentage of British workers would happily give the extra days back.

The Government has announced (on the News Distribution Service website) that it is to introduce legislation to prevent employers blacklisting workers as a result of their union membership or activities.

BERR has published a consultation seeking views on implementation of the Temporary Agency Workers Directive.

During April, the impact of the repeal of the dispute resolution procedures at the beginning of the month was evident, with the most frequently asked question on XpertHR concerning whether or not employers are obliged to deal with grievances raised by ex-employees.

Other popular FAQs covered maternity leave in connection with annual leave and car allowances, and whether or not it is acceptable to ask employees of foreign origin to communicate in English while at work?

Photo: Charles Chan

The saga of the important case of Stringer and others v HM Revenue and Customs sub nom Commissioners of Inland Revenue v Ainsworth and others is nearing its end.

A list from American trade union federation AFL-CIO of things that Obama has done for their members in his first 100 days, such as:

• signing the Lilly Leadbetter Fair Pay Act;
• overturning various Bush-era orders weakening employent rights for employees on federal contracts;
• overturning a ban on project labor agreements (collective agreements covering multi-contractor construction projects); and
• making progress on health insurance for children and other support for working families.

Now the unions have their eyes on the prize of the Free Choice Act, which would strengthen collective bargaining rights and which Obama supports.

In the 2009 Budget, the Chancellor announced a “one-off” increase in the limit on a week’s pay for statutory redundancy pay purposes from £350 to £380. However, it is unclear when this will take effect, or even how the Government plans to effect the change - possible routes seem to include s.14 of the Work and Families Act 2006 or s.23 of the Employment Relations Act 1999.

With the introduction of more flexible rules on dealing with disciplinary issues and grievances from 6 April 2009, now may be the time for employers to consider allowing mediation as an option in their procedures. XpertHR has published model mediation documents to help employers that wish to make a start.

Employer instigates disciplinary process. Employee promptly raises grievance. Few employers will be lucky enough not to have come across this situation. In many cases their response is to put the disciplinary process on hold until they have dealt with the grievance - sometimes prolonging the issue for months. But is this really necessary?

The statutory dispute resolution procedures may have been repealed on 6 April 2009 - but don’t think you can forget about them just yet. Under transitional provisions, they continue to apply in certain situations, as David Shepherd (XpertHR’s head of content and technology) and I discuss in this month’s XpertHR Outlook Video. We also consider the 1 April increase in statutory annual leave entitlement from 4.8 weeks to 5.6 weeks, and the 6 April extension of the right to request flexible working to parents of children under the age of 17.