Tribunal Fees Update

Tribunal fees have been abolished following a recent unanimous judgement from the Supreme Court in a case brought by Unison.  The court found that the fees prevented access to justice and in addition, disproportionately affected women.

Since July 2013, claimants in employment tribunals have had to pay a fee of up to £250.00 to submit a claim and a higher fee if the claim was taken forward to a final hearing.

Since the introduction of fees, tribunal cases reduced dramatically by 70 per cent.  ACAS have also reported that 10% of individuals who contacted them regarding a potential claim ultimately decided against doing so because they couldn’t afford the fees.

The reason for the introduction of fees was to discourage weak and vexatious claims.  The success rate of claims since the introduction of fees interestingly though has fallen which contradicts this logic and makes you wonder if weak claims were in fact effectively deterred by the fees or if the fees ultimately didn’t matter and if the claimant had the cash to pursue their claim they would do so – irrespective of merit.

Unison said the fees presented a significant bar to access for justice for individuals who considered they had been wronged by their employer.  The Supreme court agreed, stating access to justice is a constitutional right and the fee system interfered with that right.

The Supreme Court rejected the government’s defence that many claims at tribunal were inherently ill founded and that the employment tribunal system was a private service which should not be underwritten by the tax payer on the basis that there was little evidence to suggest the fee system had deterred weak cases and that pursuing a claim in the tribunal was not purely a private activity, because it can and does benefit society more widely.

The government has accepted the decision, has immediately stopped taking fees, and is undergoing the process of reimbursing all fees paid since July 2013.

However, there is always the chance that although the current system has been ruled unlawful, that the government attempts in the future to try to introduce a revised system with much lower fees.

As well as this, anyone can search the tribunal online database of employment tribunal judgments.  So, while it is thought that the abolition of fees may see a sharp increase in tribunals in the short term, some employees may be put off by the thought that if anyone wants to see a judgment they can do so by searching for the names of parties involved, particularly as awareness of the database continues to increase.

In order to avoid claims, encourage your employees to speak up early and informally.  The earlier a grievance is aired the easier it is to resolve it. If you don’t have harassment or grievance policies introduce them now.  If your managers are uncomfortable having conversations about their team’s conduct, train them now.  Work towards creating an open culture where people can speak up without fear of reprisal.  Take this time now to invest in your people contracts of employment, policies and processes to deliver positive results for your business.

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GDPR – Key Information for Employers

The UK’s Data protection rules are set to dramatically change with the introduction of the EU’s General Data Protection Regulation (GDPR) on 25th May 2018.  The new regulations will involve significant changes to how organisations process data.  The new restrictions being brought mean that there will greater penalties for failing to meet data protection regulations.  The introduction of GDPR will have a serious impact on employers in terms of how personal data is processed and stored for not just employees but also for contractors and job applicants.

Don’t let Brexit allow you to think that GDPR won’t apply to the UK as we will still be in the EU when the new legislation comes into force and it is likely that the UK Government will adopt the same or similar legislation when we do eventually leave the EU.

Breaching the law could subject a company to significant fines of up to €20 million, or 4% of an organisations’ global annual turnover, whichever is higher.

The major changes that GDPR will have on HR information are:

1.     Data protection by design and default – A new approach to data that will require organisations to embed privacy considerations in both operational and strategic HR. Employers need to ensure that only personal data necessary for each specific purpose is processed. This includes ensuring that:

  • only the minimum amount of personal data is collected and processed for a specific purpose;
  • the extent of processing is limited to that necessary for each purpose;
  • personal data is stored for no longer than necessary; and
  • access to the data is restricted to that necessary for each purpose.

2.     Processing by consent – Many employers process employee personal data based on consent. This approach has been increasingly criticised, as the validity of employee consent is questionable due to the imbalance of power in an employment relationship. Under GDPR consent must be “freely given, informed, specific and explicit”. Where an employer obtains consent in a written declaration that also concerns other matters, the request for consent must be presented in a manner that is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. This means that broad consents in employment contracts to process employee data will not be valid. Further, the requirement that consent be freely given means that valid consent will generally be difficult to obtain in the employment context due to the imbalance of power.

3.     Legal basis for processing – There will be a greater focus on the legal basis for processing personal data under the GDPR. As processing employee data on the basis of consent will be problematic, employers will need to rely on other grounds, including that processing is necessary for:

  • compliance with a legal obligation;
  • the performance of a contract; or
  • the purposes of the legitimate interests of the employer or a third party.

If an employee objects to processing based on legitimate interests, the employer cannot process the data unless it shows that its legitimate interests are sufficiently compelling to override the interests or rights of the employee, or that the purpose of processing is to establish or defend legal claims. The right to object could cause significant delay and disruption in the context of disciplinary or grievance procedures, redundancies, terminations of employment or business sales.

4.     Information for employees and job applicants  – Under the GDPR, employers will be required to provide more detailed information than under the Data Protection Act 1998 to employees and job applicants about the processing of their personal data. Under GDPR, information that employers must provide includes:

  • the identity and contact details of the employer as a data controller;
  • the data protection officer’s (DPO) contact details (if the organisation has a DPO);
  • the purposes for which the data will be processed and the legal bases for processing, including, if relevant, the legitimate interests relied on;
  • the categories of personal data to be processed;
  • the recipients of the data;
  • any transfer of the data outside the European Economic Area (EEA);
  • the period of storage;
  • the rights of data subjects, including the right to access, rectify and require erasure of data, the ability to withdraw consent or to object to processing, and the right to lodge a complaint with the supervisory authority;
  • the consequences for the data subject of failing to provide data necessary to enter into a contract; and
  • the existence of any automated decision-making and profiling, and the consequences for the data subject.

Employers must provide the information at the point of data collection. Where an employer wishes to process existing data for a new purpose, it must inform employees or job applicants of that further processing.

5.     Data subject access requests – Employees have an existing right under the Data Protection Act 1998 to obtain from their employer (or former employer):

  • confirmation as to whether or not their personal data is being processed;
  • information on their data, including the purpose of processing, categories of data collected and the recipients of such data; and
  • a copy of the data being processed.

Under the GDPR, employers must provide the requested information within one month of the request (three months in the case of complex requests), and free of charge unless the request is manifestly unfounded or excessive. The GDPR places much more rigorous obligations on employers to ensure that there are systems in place to ensure that they comply with access rights, with particular emphasis placed on the clarity, transparency and accessibility of such systems.

6.     Accountability principle – One of the biggest changes under the GDPR is the new principle of accountability; the GDPR requires employers to demonstrate compliance with the data protection principles. This will mean enhanced obligations for employers, including a requirement to keep extensive internal records of data processing operations, which must be produced to the supervisory authority for inspection on request. Employers should create a data register to meet their record-keeping requirements. This should be an up-to-date written record containing information about all personal data processed by the organisation, including:

7.     Automated decision-making  – Employees have a right under the GDPR not to be subject to a decision made solely by automated processing where that decision significantly affects them. This includes decisions based on profiling (any form of automated processing to evaluate certain personal aspects of individuals, in particular to analyse or predict indicators such as their performance at work, health, personal preferences, reliability and behaviour). The GDPR requirements regarding automated decision-making mean that employers should incorporate human intervention into automated processes that significantly affect employees unless they are relying on an exception to the rule.

GDPR will become law on 25 May 2018 and that is a “hard deadline”. Organisations will need to be 100% compliant from day one.

Accountability needs to be entrenched in an organisation, requiring a cultural and organisational shift and for companies to take a proactive, methodical and answerable approach toward compliance.

For more information on how to comply with GDPR please speak to us at Solve.

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EAT confirms that regular voluntary overtime should be included in Holiday Pay

The Employment Appeal Tribunal (EAT) upheld the decision of Employment Tribunals that payments for voluntary overtime should be included in holiday pay if they are regular enough to constitute ’normal pay’.  The Employment Tribunal accepted that employees could “drop on and off the rotas to suit themselves whether day by day, week by week, month by month or permanently” and additional work was “almost entirely at the whim of the employee, with no right to enforce work on the part of the employer”.

In the case of Dudley Metropolitan Borough Council v Willetts and others, an Employment Tribunal decided that out of hour’s standby pay, call out allowance, voluntary overtime and travel allowance linked to those elements should be included within holiday pay calculations.  The 56 council workers argued that their holiday pay should have included, payments for voluntary overtime.  The tribunal stressed that “normal pay” must be included in holiday pay and concluded that the council workers’ voluntary overtime payments are sufficiently regular to constitute “normal pay”.

The EAT confirmed that, where the pattern of work extends for a sufficient period of time on a recurring basis to justify the description “normal”, voluntary overtime pay must be included in holiday pay, however, each case must be decided on its own merits, and it is up to individual Employment Tribunals to determine whether or not the overtime payments are sufficiently “regular and settled” to require inclusion in holiday pay.

The impact of the decision will be felt by all employers who operate overtime payments and approaches to calculating holiday may need to be reassessed once again.  The individual circumstances that apply to your workforce and your business will ultimately govern what approach is best for you, therefore before making any decisions as to the risks you face, take advice on what it might mean for you and your staff.

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4 Ways You Can Protect Employees From The Hacking Revolution

The world is going through a phase right now of increased hacker activity, and as companies we need to respond and show that we are taking steps to protect employees. Here is a quick outline of 4 basic steps you can take to do that.

1. Data Encryption

It’s becoming more and more advisable that all data for your company is kept on an encrypted hard drive. This essentially is a locked hard drive that requires the unique key to open it. It’s easier than ever now to make use of high level security features with online cloud storage making huge strides towards online security for your data.

2. Keep what you need, nothing more

Part of the data protection act requires that we don’t keep data we don’t need, and though companies follow this rule, generally, well, we could tighten it up for ourselves, and make a distinct effort to not keep data on an employee we really don’t need or could do without. By reducing what we keep on our employees we reduce the amount of information a hacker might get hold of. Mothers maiden names are now so dangerous due to their overuse as “secret question” answers. We can get better at this!

3. Use dedicated online systems

We wrote a blog post a while back on using an HR Management System in your business, and while these can be practically rewarding due to simplicity, they offer security benefits. Essentially, you don’t store HR related data onsite, it’s elsewhere, and you can generally be assured that these companies are doing their best to keep this data safe, if they didn’t they wouldn’t exist long! While it’s common it’s not a given, so research the security of the system you are considering before you invest.

4. Keep it non digital

This seems drastic, and counter intuitive to what we are saying about HR Management Systems, but we aren’t saying don’t use them, just add an extra level of protection to some data by keeping it in hard copy only. It depends on what data your company needs, but it might be worth a consideration that not all data requires instant access, and it could be safer in hard copy only.

Solve HR childcare

What experience does Solve have of working within the childcare sector?

Solve HR childcare

What experience does Solve have of working within the childcare sector?

At Solve we work with a nursery that has 5 individual nurseries spread around Edinburgh and the Lothians.  This has given us valuable insight into the challenges faced by nurseries including

  • SSSC standards
  • The importance of Care Inspectorate reports
  • Finding the right employees with the necessary qualities, experience and skills
  • The day to day ER issues faced by nurseries

How can Solve assist with the recruitment of childcare roles?

We have been actively involved in the recruitment of Nursery Managers, Practitioners and Support Workers so we understand how difficult it can be to find the right people for these roles.  It’s not just about having the right qualifications it’s also about having the right qualities and behaviours to undertake a role in childcare.  In conjunction with our nursery client we have established a robust advertising and recruitment strategy that has enabled us to fill over 20 roles in the last year including a number of senior positions.

How can Solve support Nursery Managers with day to day HR?

We understand that the main priority for Nursery Managers is the care of the children in their charge as well as the day to day running of the nursery so they may not have the time required to be able to fully manage HR issues.  We have provided our nursery client with hands on HR support with a variety of different issues such as:

  • Absence management
  • Maternity
  • Flexible working
  • Disciplinary Issues

What other support have you offered?

In order to help the Nursery Managers with their development we have also run a number of training courses such as:

  • General Management training
  • Managing Difficult Conversations
  • Managing Probationary Periods
  • Investigations and Disciplinaries
  • Recruitment

At Solve we believe that through our extensive experience we understand the challenges faced by not just nurseries but other organisations within the care sector and that we truly can support these organisations with all their HR needs.

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Behavioural Assessments – A Powerful Tool That’s Not Just for Recruitment

1. What is a PPA assessment?

At Solve we are delighted to be able to offer PPA behavioural assessments through our partnership with Thomas International.

Using the DISC profiling method, Thomas’ PPA behavioural assessment provides an accurate insight into how people behave in the workplace,

2. What can it be used for?

The PPA assessment can be used in a number of ways:

  • It gives you a greater level of certainty when recruiting,
  • Identify employees for promotion
  • Assemble effective teams
  • Identify gaps in existing teams
  • Identify precisely the areas for development that will have the maximum impact on your business
  • Manage performance
  • Resolve team issues
  • Boost motivation

3. So how can it be used in recruitment?

A PPA report give you an indication of whether or not a candidate has the key behaviours required to carry out the role.  It also provides a detailed Interviewers Guide that has specific questions based on the candidates profile allowing you to fully explore their behaviours and personality.  It helps you to recruit the right person for the role and your organisation, effectively eliminating the need to fit a square peg into a round hole

4 How does it help me to manage my existing employees?

The straight forward PPA assessment takes only 8 minutes to complete. You are then provided with a detailed report outlining an employee’s strengths and limitations, their communication style, their value to the business, what motivates them, their basic fears and how they behave under pressure.

It will allow you to understand how to adapt your management style in order to get the best out of each employee.  It will also enable you identify and focus more time on those who will truly drive your business forward.

If you are looking to gain a better understanding of potential or existing employee behaviours and abilities then please speak to us.