By 2020, one in three workers will be over 50 years old. With the increase of the retirement age, phased retirement, or employees just not wanting to retire, the workforce will be older than ever before, and with this comes many rewards for organisations but it can also prove tricky for employers to avoid discrimination.

As people live longer, they are likely to work longer too, and so it is not surprising that an increasing number of employees are planning to work past retirement age. From March to May 2019, more than half of the annual increase in the number of people in work occurred among those aged from 50 to 64 years, according to Office for National Statistics (ONS) figures. An ageing workforce brings with it a number of legal and ethical implications that employers need to consider.

  • The Equality Act 2010 provides protection against different types of age discrimination, including:
    less favourable treatment because of age (direct discrimination);
  • the application of a provision, criterion or practice (PCP) that disadvantages a particular age group (indirect discrimination);
  • harassment related to age;
  • victimisation.

Since the elimination of a compulsory retirement age in April 2011, it has been up to individual employers to decide whether or not to set retirement ages within their organisations. It is only possible to fix a retirement age for a job, and avoid this being discriminatory, if certain legal requirements are met. A fixed retirement age, which is on the face of it both directly and indirectly discriminatory, can be objectively justified if it can be shown that it is a proportionate means of achieving a legitimate aim.

For direct age discrimination to be justified there must be a legitimate social policy aim, such as fairly distributing employment opportunities to both younger and older workers, or the efficient planning of the departure and recruitment of staff. Further, employers cannot just rely on their own private interests/business needs and they must also be able to support these aims evidentially and empirically.

Businesses tend to wait to be approached about retirement age by an employee because the need to set a retirement age can be very difficult to prove. Tribunals certainly set a high bar in this regard.

Ethical issues for employers
HR practitioners are likely to experience an increasing number of ethical dilemmas in this area. As workers live longer and working lives are extended, organisations need to tackle age discrimination in the workplace and work to change the negative stereotyping of older workers when it comes to both retention and recruitment.

Key considerations

  • The needs of older and younger workers may change at different career stages, but do not make assumptions. It is important to treat all workers as individuals. Consult with workers, taking a consistent approach with everyone, to get an understanding of their career goals so that you can plan accordingly;
  • Promote health and wellbeing and encourage workers to maintain good health. This will become increasingly important within the ageing workforce;
  • Set up initiatives to retain experienced workers and best utilise their skills and experience. For example, encourage coaching, training and mentoring of more junior staff;
  • Flexible working is key. Workers need flexibility at different stages of their working lives and a workforce made up of a diverse range of ages can provide the balance organisations often seek;

For further advice and support on this matter speak to a member of the Solve.HR team

It’s the season to be jolly!!

Employers hold a duty of care towards their employees throughout the employee’s employment and this extends to events such as the Christmas party. It’s important that certain factors are considered by employers, such as: –

  • Setting clear guidelines of the behaviour expected at the Christmas party, such as violence, unwanted conduct, discriminatory remarks and excessive alcohol consumption, will not be accepted.
  • Reminding all employees of the policies and procedures in place and the consequences of their actions e.g. disciplinary.
  • Limiting the amount of free alcohol, supplying enough food and providing non-alcoholic drinks can support in limiting the risk for employees becoming too merry. It’s important that employees who are under the age of 18 do not drink. Employers should also take into consideration those employees who do not drink alcohol or eat certain foods.
  • Ensuring that post party travel arrangements are taken into consideration to reduce the risk of employees on their journey home.
  • Asking employees not to post on social media, such posts could cause embarrassment or offence to others and if an employee’s photo appears on social media and they haven’t given their consent, could raise certain data protection issues.
  • Making employees aware that absence or lateness will not be tolerated the morning after the Christmas party and will be dealt with via the disciplinary policy. Furthermore, employers should be aware of employees who do turn up to work the next day drunk, especially if their job involves driving or operating machinery.

Christmas is both a Christian holiday as well as a state holiday, holding an event at Christmas is not likely to fall foul of the Employment Equality Regulations 2003, however, if the Christmas party is presented as a “boozy night out” this could potentially seclude employees whose faith could prevent them from attending such night out, which would be discriminatory. This also extends to female employees who may have childcare commitments as you could risk having a sex discrimination claim made against the company.

In the case of Nixon v Ross Coates Solicitors, an employee claimed constructive dismissal, sex and pregnancy discrimination and harassment after malicious gossip was spread about her pregnancy following the Christmas party. Nixon had been seen by employees kissing another employee and going into a hotel room with him. The HR manager had knowledge of the employee’s pregnancy and began gossiping with other employees as to whom the father was. The employee raised a formal grievance, however, this wasn’t dealt with accordingly and on appealing this case, the EAT held that the tribunal was wrong in not making findings of pregnancy related harassment and discrimination and also sex discrimination. Interestingly, the fact that the employee had put her sexual life into the public domain, and acted in a way which was bound to provoke gossip, did not assist the employer in relation to either liability.

This should be served as a reminder to all employers that precautions need to be taken both during and after the Christmas party. Employers should have both procedures and policies relating to bullying and harassment, disciplinary and grievance and also discrimination to ensure that they are in a better position to deal with these issues, if and when they arise.

If you would like advice on the Christmas Party or require your policies and procedures to be updated, please contact a member of the Solve.HR team.

In June the Court of Appeal ruled that voluntary overtime payments must also be included in holiday pay calculations. It agreed with the Employment Appeals Tribunal’s ruling in the Flowers and others v East of England Ambulance Service NHS Trust case where ambulance workers claimed that two types of overtime should be included in holiday pay calculations; “non-guaranteed” overtime taken when their shifts overrun and any voluntary shifts they choose to take in advance.

The original ruling at Employment Tribunal held that voluntary overtime should not factor into holiday pay calculations, however the ambulance staff successfully appealed this ruling which then resulted in the East of England Ambulance Service NHS Trust taking the case to the Court of Appeal but the judgement ruled in agreement that voluntary overtime should be included in holiday pay if there are regular overtime payments.

When calculating holiday pay it’s important to remember that the following payments must be included in at least 4 weeks of paid holiday:

• Regular overtime payments (both voluntary and compulsory)
• Contractual commission
• KPI bonus payments

This is to ensure that employees’ salaries are not unduly affected when they take holidays and employees are not discouraged from taking their European entitlement of 4 weeks’ annual leave, in other words they should receive the same amount of money as if they had attended for work. This ruling has been in place for some time now, however many employers have not yet implemented it so the government plans to publicise this in the coming year as part of the Good Work Plan so that employees are more aware of their rights.

As part of the Government’s Good Work Plan, recommendations were made to extend the reference period for determining average pay in relation to statutory holiday from 12 weeks to 52 weeks. This is being brought into force by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 and will apply from 6th April 2020.

A consequence of this will mean that contracts of employment templates will have to be updated to reflect the changes to holiday pay calculation.

To find out more about holiday pay, how to calculate it and ensure that your contract templates are compliant please speak to a member of the Solve. team

HR Masterclass seminar

Join us on Thursday 24th January 2019 at the Mercure Hotel for a free HR masterclass seminar.

Disciplinary and Grievance Masterclass

Disciplinary and Grievance issues affect all organisations at some point and if not done properly it can leave a Company exposed to an Employment Tribunal claim. The Masterclass will cover how to deal with disciplinary and grievances both informally and formally giving you the confidence to undertake such actions without breaching ACAS guidelines.  There will be lots of hints and tips for you to take away and implement and you will leave with clarity on the procedures and what you need to do to ensure that you have effective policies in place.

When: Thursday  24th January

Time: 8.45am for 9.15am start until 10.15am(teas and coffees provided)

Where:  Mercure Hotel, Almondview, Edinburgh EH54 6QB (plenty of parking)

Please feel free to share with colleagues and fellow business associates who you think might be interested.

 

To reserve your place please register on eventbrite below.

                                 REGISTER HERE

On 6th April 2018, and again on 6th April 2019, the rate for the minimum contribution to Workplace Pensions from both employees and employers is increasing.

All employers, with employees in a work place pension scheme, must take action to ensure at least the minimum amounts are being paid into their pension scheme.

This applies to you whether you set up a pension scheme for automatic enrolment or you decided to use an existing scheme.

If you’re using a defined benefits pension scheme then the increases do not apply.

Up to 5th April 2018
Employer minimum contribution 1%
Employee minimum contribution 1%
Total minimum contribution 2%

6th April 2018 – 5th April 2019
Employer minimum contribution 2%
Employee minimum contribution 3%
Total minimum contribution 5%

6th April 2019 – onwards
Employer minimum contribution 3%
Employee minimum contribution 5%
Total minimum contribution 8%

As an employer you can make the decision to move straight to the 6th April 2019 minimum rates from April 2018 if you wish to eliminate the need to make two changes.

By law a total minimum amount of contributions must be paid into the scheme.  You as the employer must make a minimum contribution towards this amount and your employee must make up the difference.  If you decide to cover the total minimum contribution required, your employee won’t need to pay anything.

This is not a change to pension scheme rules which requires legislative communications but we would recommend as good practice that you advise your employees in advance of the expected change to prepare them for the increase in their own pension contributions and your own pension provider should be able to help with this. With the contribution rate for employees tripling this will have a material impact on net pay for many.

If you offer a salary sacrifice we would advise you review communications issued and seek advice from your pension provider regarding any changes you may need to share with your employees.

There are also changes coming for the Auto Enrolment threshold rates:

  • Earnings trigger is to remain at £10,000 per annum.
  • Lower qualifying earnings will rise from £5,876 to £6,032 per annum.
  • Upper qualifying earnings will increase from £45,000 to £46,350 per annum.

In addition, ensure your contracts of employment and/or employee handbook reflect your new contribution rates and we can help with this.

hospitality and human resources

 

It is startling to read how many SME’s in the UK who don’t have HR support.  There can be many reasons for the lack of HR support, such as budget constraints.  SME’s mostly work on a tight budget and focus more on growth and scale of the business versus people and culture related issues. Many SME owners feel that their teams are too small and they can manage their HR activities adequately themselves.

Employers are not being properly educated about the disadvantages they face because of a lack of engagement with HR.

Most businesses – no matter how small – will have specialist support to manage finance, IT and operations, but, don’t realise the benefit of bringing in HR when it comes to the management of their (usually) most valuable asset – their people.

Common issues we are often asked to help employers resolve:

1.     Poor pre-recruitment screening, with promotion decisions based on length of service, not quality of skills, often leading to poor retention rates of the right people who become frustrated working with people in the wrong roles.

2.     People are moved to new roles because they’ve been with the business a long time, not because they have the right skills and experience to succeed in their new role.  This leads to informal conversations with no documentation used to measure performance accurately.

3.     Lack of training and coaching given.

4.     “Warnings” issued on the spot with no documentation to support decisions, and no formal procedures being followed.

5.     No formal policies and procedures in place meaning there is no protection for the manager, the employee or the business.

6.     Absence is not managed, documented or controlled with no return-to-work interviews in place, which often leads to unhappy employees who are picking up the workload of absent colleagues.

7.     Employees unhappy with the way they are managed but feel the culture of the organisation is one that there is no-one to listen to their complaints, or no process for them to lodge a complaint.

8.     No contracts of employment or job descriptions, leading to confusion over terms and conditions and job roles and responsibilities.

Having HR support in your business can mitigate these risks and many others.  As you get in place contracts of employment (which are essential for you to comply with legislation) and structure your policies and procedures with clear standards for managing both good and bad performance, this helps builds engagement and trust.

Well laid out HR practices, these help to remove ambiguities employees may have related to their job role in the business and can help improve employees’ motivation, improve Line Managers skillset in managing people, business efficiency and reduce attrition.

There are many ways to engage with us to ensure your HR support is affordable, the argument that HR is a luxury to SME’s should be revisited before you face the financial consequences of leaving it too late.