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SECTOR: Charity

Employment

I would like to take this opportunity to thank both Shirley and Robert for all your help and support. I know you must have many cases to deal with yet I felt as though you were always giving me 100% in both guidance and honesty. I will not hesitate to use your services again and I will recommend Samuel Phillips to anyone who needs a professional, yet friendly law firm.

This includes the drafting of employment contracts, policies and procedures. We also offer advice on the employment protection scheme, as well as training on a wide range of employment issues. We also provide tribunal representation, and advice in corporate transactions and TUPE transfers.

We recognise that the funding which charities receive is limited and restricted in purpose, so we will provide best value for money possible. We like to understand our clients charitable ethos, and enjoy assisting in their charitable endeavours.

FAQ
My employee was snowed in for 3 days last week, do I have to pay him for the days he missed?

The basic contractual position is that wages or salary are not payable unless an employee has provided some consideration for those wages or salary. The courts have held that there are 2 ways in which consideration may be provided by employees either actual performance of work by an employee or a readiness and willingness to work by the employee.

It is fairly settled law that hourly paid employees with no guaranteed hours and piece workers fall into the first category and therefore will not receive wages if they fail to attend work regardless of the reason.

The case in respect of salaried employees is slightly less clear. There is conflicting case law as to whether or not an employee is ready and willing to work and therefore entitled to be paid where their non performance of work is involuntary and unavoidable. ACAS supports the view that employees are not legally entitled to receive salary if they don't perform work.

In order to reduce the uncertainty we recommend Employers implement policies setting out how they will deal with adverse weather conditions and travel disruptions. Employers should consider whether employees can work from home or other locations and whether they should be permitted to holiday to cover their absence or whether they can be given the opportunity to work back the time lost. Once a policy is in place it should be applied fairly and consistently to all staff.

If you would like help in drafting such a policy please contact sallyfletcher@samuelphillips.co.uk.

We have won a tender for services from a competitor, must I now employ my competitors employees?

Where there is an organised group of employees whose principal purpose is to carry out a particular service for a client and the provider of that service changes, there will be a TUPE transfer under the Transfer of Undertakings Protection of Employment Regulations 2006 (TUPE).

This means that the employees employed by the outgoing service provider immediately before the transfer will automatically transfer to the incoming service provider who will become their new employer. All rights and liabilities under the employment contract of those employees pass to the new employer. Any changes to the employees terms and conditions of employment will be void if the sole or principal reason for the change is either the transfer itself or a reason connected with the transfer which is not an economic, technical or organisational reason (an ETO reason) entailing changes in the workforce. Any dismissal will be automatically unfair where the sole or principal reason for the dismissal is the transfer itself or a reason connected with the transfer which is not an ETO reason.

Employees may refuse to transfer, but the effect is to terminate their employment without any right to compensation.

Both parties must inform and (if they propose any 'measures') consult representatives of their own affected employees in relation to the transfer. If they fail to do so, an Employment Tribunal can award up to 13 weeks pay for each affected employee.

For further guidance as to what constitutes an 'ETO reason' and 'measures', please contact sallyfletcher@samuelphillips.co.uk.

Am I obliged to give a reference for a former employee?

There is no legal obligation on an employer to provide a reference for a former employee however you should ensure that your reason for not providing a reference is not discriminatory in respect of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sex or sexual orientation. It is also unlawful to refuse to provide a reference because the employee previously brought discrimination proceedings against you or gave evidence or information in connection with such proceedings either brought by themselves or by others.

If you do decide to provide a reference then you have a duty to ensure the information in it is true, accurate and fair. There is no obligation for a reference to be comprehensive but it must not give a misleading impression by what it does not say.

Providing a reference involves processing personal data and is therefore subject to the Data Protection Act 1998. Individuals may seek access (known as a 'Subject Access Request') to confidential references provided about them.

If you provide a reference to someone else you do not have to give a copy to your former employee even if they make a Subject Access Request. However if you have received a confidential reference from someone else, the individual may be granted access to that reference or at least some of the information contained in that reference. For example the individual will be entitled to do see factual information which is already known to him but in some circumstances may not be entitled to see opinions expressed by the referee in confidence. In those cases you must balance the referees request for confidentiality against the individuals entitlement to see what has been written about them.

For more information see the Information Commissioners Office Good Practice Note on Subject Access and Employment References at www.ico.gov.uk/upload/documents/library/data_protection/practical_application/references_v1.0_finaldocpdf.

I have recently recruited an employee and it has come to light in a routine CRB check that he has a criminal conviction. What do I do?

irstly consider whether the employee was required to disclose the conviction on his application form and/or whether the conviction is a 'spent' conviction under the Rehabilitation of Offenders Act 1974. Subject to exceptions, spent convictions do not have to be disclosed. Convictions become spent after a period of rehabilitation (i.e. non- offending) as follows:

Absolute Discharge 6 months
Fines, Compensations, Probation, Community Rehabilitation Orders,

Community Service Orders, Community Punishment Orders, Action Plans,

Curfews, Drug and Treatment Testing, Reparation Orders 5 years

· Detention Centres 3 years

· Borstal 7 years

· Prison Sentence of 6 months or less 7 years

· Prison Sentence of 6 months to 2.5 years 10 years

· Prison Service of 2.5 years plus Never

You cannot refuse to employ someone because of a spent conviction unless the post they have applied for is an 'Excepted' post. If the conviction is unspent, it is up to you to decide whether or not to employ the individual. If the employer has already started work, you may wish to consider terminating their employment if they failed to disclose their unspent convictions when asked to do so during the recruitment process.

Excepted posts are those in which spent convictions must be disclosed and those posts include:

Professions (Medics, Lawyers, Accountants, Vets, Pharmacists etc).
Those employed to uphold the law (Police Officers, Judges etc).
Regulated occupations (Financial Services, Managers of Nursing Homes).
Those who work with children and vulnerable adults.
Those who pose the risk to national security.

If the post is an Excepted post you may refuse to employ the individual and must refuse to employ the individual if there is specific legislation which prevents an offer of employment being made.

Funding has run out for an employees post. They were employed on a fixed term contract, can I simply terminate their employment at the end of the fixed term?

Some fixed term contracts expire automatically at the end of the fixed term without the employer having to give notice. Others however contain a notice clause such that notice must be given to stop the contract automatically renewing upon its expiry date. Employers need to check the terms of the contract carefully to see whether notice must be given and if so how much.

Also the non-renewal of the fixed term contract counts as a dismissal for unfair dismissal and redundancy purposes. If funding has run out for a post and will not be replaced by alternative funding, the post is likely to be redundant. Redundancy is a potentially fair reason for dismissal providing a fair procedure is followed. The fair procedure includes defining the pool of affected employees, defining objective selection criteria and applying them fairly, consultation, considering suitable alternative employment within the organisation and offering a right of appeal. Employees with more than 2 years service will be entitled to a statutory redundancy payment. To calculate your employees statutory redundancy payment go to www.gov.uk/calculate-employee-redundancy-pay.

Do volunteers have employment rights?

Generally not but it depends upon whether the individual is purely a volunteer or whether they may be construed as an 'employee' or a 'worker'. If an individual has a contract (either verbal or written) they may be construed as being an employee or a worker. For example if there is an agreement in place that an individual will volunteer at specific times and for a minimum period and the organisation agrees to provide training and pay expenses, the individual is likely to be construed as an employee. Whilst it is possible to have a Volunteer Agreement indicating the parties expectations and the standards required, the greater degree of control and organisation has over an individual, the more likely it is they will be considered to be an employee.

Genuine volunteers are specifically excluded from the right to receive the National Minimum Wage but they may be reimbursed their expenses for volunteering. Organisations do however have a duty to protect the health and safety of volunteers in the work place and should ensure they have adequate insurance in place.

If you would like assistance in drafting a Volunteer Agreement please contact sallyfletcher@samuelphillips.co.uk

OUR TEAM
  • Robert Gibson
  • Sally Lomas Fletcher
  • Angela Carver

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