The 5th June 2012 is an additional bank holiday in Northern Ireland

The Queen’s Jubilee, 5th June 2012, has been allocated as an additional bank holiday in Northern Ireland. For the occasion, the Bank holiday which normally occurs at the end of May has been moved to the 4th June to allow for an extended weekend of celebrations.

Entitlement

Whether employees are entitled to an additional day’s holiday will depend on the wording of their employment contract and/or any subsequent agreement with the employee. Employees will not have an automatic right to paid time off on these extra bank holidays unless stated in their contract.

Employers should consider the contractual position now and communicate the position promptly to their employees to avoid confusion or doubt.

* Where a worker’s contract states they are entitled to the statutory minimum annual leave only (5.6 weeks), an extra bank holiday will not increase their paid holiday entitlement.

* If the contract entitles the employee to annual leave plus all bank and public holidays, they may be entitled to the additional bank holiday as annual leave.

The Jubilee will be a significant occasion for many, and therefore consideration should be given to the following:

* Whether it will affect the morale of your workers if your business does not allow for time off on this day.

* Some employers will have inconsistent contractual wording with the result that some employees are entitled to the extra day and some are not. The best approach may be to allow all employees the extra day. You may be interested in finding out what other businesses propose to do in Northern Ireland and to this end we would encourage you to email us with the name of your company and advise us how you plan to manage the Queen’s Jubilee. We will publish the results by sector in our April Newsletter.

Pay

If employees are asked to work on an extra bank holiday their right to extra pay again depends on the terms of the employee’s contract of employment. Employers should already have communicated the rate of pay for working on a bank holiday. If nothing has been addressed in the original contract the employee’s entitlement will then depend either on what has been subsequently agreed or on what has been implied by custom and practice.

* If employees have been paid a higher rate for working bank holidays in the past, it is possible, depending on the circumstances, that this will have become a contractual entitlement. You may wish to seek further clarification on this point from us.

* If the employee refuses to attend work on the extra bank holiday and there is a contractual obligation to work that day, the employer can follow its disciplinary policy and the LRA code of practice on disciplinary and grievance procedures.

There is still time to register for a place on our HR Essentials Lunchtime Seminars which begin on Friday, 27th January. The seminars will cover the topics issued in our monthly newsletter and are aimed HR professionals and anyone who has people management responsibilty within an organisation. They will offer the opportunity to brush up on the latest HR topics, be that a recent or upcoming legal development, or more operational challenges such as rationalisations, performance management, discipline and grievance, engagement, reward and organisational development.

The sessions will be facilitated by our most experienced Senior Consultants and will cover key points over the lunch hour. By providing a sandwich lunch during the session, we hope that delegates will get the benefit of great advice whilst making the most of their busy work schedule. We know that the opportunity for HR professionals to network can be invaluable in itself and we see these lunch time discussions as an excellent forum to do so.

The dates and topics for the first seven seminars are set out below. The remaining three topics will be determined by the delegate group once it is established.

27/01/12 Essentials and templates for approaching a rationalisation or reorganisation of your operation
24/02/12 Agency Workers: top tips in handling the new legal requirements
30/03/12 Top tips in managing poor performance
27/04/12 How to develop an engagement strategy in difficult economic circumstances
25/05/12 Best practice grievance handling
29/06/12 Compromise agreements and tips for handling them effectively
31/08/12 Dealing effectively with long term absence

Please note that all seminars will commence promptly at 12.30pm. Sandwich lunch will be served from 12.15pm.

Each session costs just £45 or £450 for the 2012 subscription. Why not book a place for your organisation and nominate the most appropriate person to attend each session. Please click on the link on our home page to download a registration form and return this at your earliest convenience in order to secure your delegate place(s).

Completed forms should be emailed to fiona.wilson@thinkpeople.co.uk or posted for Fiona’s attention to:
thinkpeople Consulting Ltd
161 Ravenhill Road
Belfast
BT6 0BQ

At a very basic economic level the past year’s cuts in funding and worsening economic climate has forced employers in all sectors to look at rationalisation. For many this meant redundancies in 2011.

Many of you will now be familiar with the necessary steps when considering redundancies. Rationalisation is possibly not as familiar territory.

Variation of contracts can be a difficult and complex process, however it is increasingly common within our client base and it is therefore the focus of the HR Newsletter this month and the focus of the first of our exciting new lunchtime seminars on 27th January.

Where to start?

Unilateral changes to employment contracts cannot be made without an employee’s consent. It is important to note that contractual terms are binding in law and any change without consent may lead to claims for breach of contract and the potential for claims of constructive dismissal. Employers who vary terms without consent also risk being unable to rely on other contractual terms given that the original contract will no longer be valid if breached.

1. Consider the business case for changing terms

The first step will always be to undertake a robust review of the operation, including assessing income versus costs and full year projections and other strategic reasons for changing, e.g. harmonisation. If the review presents significant concern, produce a number of scenarios for achieving a planned outcome, e.g. freezing overtime and /or premium pay, reducing salaries / pay, reducing working hours / shift working or reducing subsidies and benefits. Against each scenario consider the potential impact on morale, retention of key personnel and productivity levels. Prior to commencing any plans for varying terms, ensure that the business case is clear and justifiable.

2. Do contracts include a flexibility clause?

Check existing contracts for a term known as a ‘flexibility clause’ which allows an employer to vary terms without the employee’s express agreement. It should be noted however that these clauses usually refer to minor changes only or those which are not detrimental to the employee and cannot be relied upon if you are looking to make more significant changes. It is a good idea to include such clauses in any new contracts to make clear from the outset that a level of flexibility is required. In any event the employer must always act reasonably if they are to avoid breaching the implied duty of mutual trust and confidence when making contractual changes.

Obtain agreement

3. Seek to agree changes

Prepare your proposal for change based on the business case, and taking into account that employers are expected to act reasonably. Changes may be agreed via consultation on an individual basis or in some instances through a collective agreement. The proposed changes should be discussed via consultation with each employee or his or her representatives and agreement obtained in writing. There may be an implied or express agreement in place between the employer and employee that relevant changes in terms and conditions can be agreed via collective agreement with a Trade Union or workforce representative group. This agreement may in some instances document the method and length of the consultation period. If the process impacts on 20 or more employees, it is also wise to refer and comply with the collective redundancy consultation requirements, in the event that the consultation leads to the dismissal and re-engagement of the affected group (see below).

Where the employer has also proposed redundancies as part of the rationalisation process, the consultation can be run in tandem, covering both proposed contractual changes and redundancy. When consulting about contractual change it is often a smoother process if detrimental changes can be offset in some way, or tied in with beneficial changes, for example introducing more flexible working or increasing annual leave.

Where agreement has been reached on contractual change, and the change concerns particulars which must be included in the written statement of terms and conditions, the employer should give written notification of the change to the employee, within a month of the change taking effect.

If agreement cannot be reached

4. Dismissal and re-engagement on new terms

If, following consultation, there are some employees who have not agreed to the proposed change, the employer may consider the option to dismiss those employees and re-engage them on new terms to bring about the change. As is the case with collective redundancies, you must inform Department for Employment and Learning, Redundancy Statistics Section, Statistics Research Branch (DETI), of plans to dismiss 20 or more employees, even if the plan is to re-engage them.

This should be a final resort where there is a compelling business case to do so. The employees should be notified, in writing, that if a voluntary agreement cannot be reached, you may have no option but to dismiss them with reasonable notice as specified in the employee’s contract or the minimum statutory notice period and offer them re-employment with new terms. In this case the dismissal should follow fair procedure as outlined in the LRA code of practice, including the right to appeal. There are a few situations involving groups of employees where all aspects of the statutory procedures do not have to be used.

This can be a complex and high risk process depending on the nature of the changes and the employee response. I have attempted to introduce the high level steps and considerations. Detailed planning and assessment of the risks before starting can minimise the potential issues along the way. Companies that are planning to implement contractual changes may find it useful to contact us for detailed advice.

We are excited to offer you the opportunity to attend a series of high impact and low cost HR lunch seminars which we will be offering on the last Friday of each month* in central Belfast. The seminars will cover the topics issued in our monthly newsletter and are aimed at anyone who wishes to brush up on the latest HR topics, be that a recent or upcoming legal development, or more operational challenges such as rationalisations, performance management, discipline and grievance, engagement, reward and organisational development. The sessions will be facilitated by our most experienced Senior Consultants and will cover key points over the lunch hour. By providing a sandwich lunch during the session, we hope that delegates will get the benefit of great advice whilst making the most of their busy work schedule.

We know that the opportunity for HR professionals to network can be invaluable in itself and we see these lunch time discussions as an excellent forum to do so.

To ensure delegates get the most from the sessions, we have stipulated the most requested newsletter / seminar topics below. The remaining three topics will be determined by the delegate group once it is established.

• Agency Workers: top tips in handling the new legal requirements.
• Essentials and templates for approaching a rationalisation or reorganisation of your operation.
• How to develop an engagement strategy in difficult economic circumstances.
• Top tips in managing poor performance.
• Best practice Grievance handling.
• Dealing with long term absence effectively.
• Compromise agreements and tips in handling them effectively.

Each session costs just £45 or £450 for the 2012 subscription. We are offering a 10% early bird discount for those booking 10 sessions prior to 6th January. Do feel free to circulate this information to relevant colleagues and peers who may benefit. In the meantime, should you/your colleagues wish to attend, please contact fiona.wilson@thinkpeople.co.uk for an application form.

*NB There will be no session in July or December.

Our exciting new venture for 2012 is a series of HR Essentials Lunchtime Seminars to be held in the Wellington Park Hotel on the last Friday of each month. We will be writing to you separately with details of how you can become involved.

Given that we are fast approaching the festive period and next month we will already be entering 2012, we thought it would be a worthwhile exercise to take stock, in this last newsletter of 2011.

We asked some of our influential friends and colleagues in HR and the legal profession to consider what it is that 2011 has taught them and to consider what, with the very best of intentions, their resolutions will be for the coming year.

We share below a selection of responses, perhaps there is food for thought in there for all of us.

As always, let us know your thoughts, we’d love to hear what other HR lessons and resolutions are out there. You can leave your comments on our webpage at www.thinkpeople.co.uk

2011 has taught me the huge value of personal and professional authenticity. It’s also my resolution for 2012 to encourage others to make sure their decision making and communication style is always authentic. This links to trust, which is a corner stone in engaging people in any circumstance.
Angela Schettino, Senior HR Consultant, thinkpeople Consulting Ltd

Biggest HR lesson for 2011 – “Just when you think employment law has started to settle down something comes from left field and totally blindsides you. Every day is a school day, never forget that.” Resolution for 2012 – “Educate, talk, learn, adapt, prevent” – the words of a recovering academic.
Mark McAllister, Senior Employment Relations Manager, LRA & Lecturer

The biggest lesson from our HR clients in 2011 is that employees understand the need for tough decisions- they challenge them where there is not enough transparency leading to a feeling of unfairness- and a claim. Over the last few weeks the Coalition government in G.B. has announced a series of changes which will cumulatively streamline the tribunal system and cut costs and (perhaps) the number of claims. While we need not slavishly follow G.B. in 2012 the Northern Ireland HR and legal community needs to make the case for positive change to the Minister and to the Assembly- we must all be willing to get actively involved in consultations.
Adam Brett, Partner at McGrigors

My biggest HR lesson is that HR theory and hard evidence count for little at strategic level politically when the economy is struggling. Regardless of all the evidence that employee engagement makes the difference between high performance organisations and others, the Government is ‘improving’ things for employers by making it easier to dismiss staff and create uncertainty in workforces. It should, in my opinion, be looking to reward organisations that bring staff with them during the hard times, that encourage employee involvement in decision-making, that try to retain experienced employees and share knowledge in a nurturing and challenging environment.

Confidence gets you much further and you don’t encourage confidence by making it illogical for people to move for fear of getting sacked by a new employer. People won’t suggest new things if they think they’ll get sacked if the ideas don’t work straight away. And unions (and their members) won’t trust employers who use minimal rules to announce mass redundancies without meaningful consultation.

My personal ambition for 2012 is to make it alive to my 50th birthday and have a day out at Edinburgh zoo with the new giant pandas they’re getting there. I might even invite the family if they’re nice to me. And get over my residual fear of heights by Going Ape: http://goape.co.uk/http://www.scotsman.com/news/environment/pandas_to_arrive_at_edinburgh_zoo_on_sunday_1_1987888
Scott Alexander, Head of Training and Development, Legal Island

Organisations and the people working within them have faced some difficult challenges. Lots of lessons have been learned but I think there is a reinforcement of the fact that regardless of the climate organisations should constantly be focussed on efficiency and prudent in their decision making to reduce their exposure in tougher times. In relation to people management, having a genuine strategy for engagement in the good times creates the productivity needed to deliver, but also engenders relationships built on trust and loyalty which many employers are now relying on to get through the more difficult periods.

I have lots of resolutions about work but personally I’ve decided this year to give in to my creative side and take a photography course and have more fun!
Emer Hinphey, Managing Partner, thinkpeople Consulting Ltd

The importance of retaining good people and good skills during tough times, even at the expense of profitability. When the business returns to good times, it provides such a strong platform from which to bounce back and grow again quickly, as has been the case for Kainos in 2011. Resolution: Work smarter, not harder, and get home earlier in the evenings.
Paul Hamill, Head of HR, Kainos

As cliché as it sounds – I believe failing to prepare, is preparing to fail when supporting managers through HR processes. Also, HR professionals put themselves under too much pressure to be able to instantly recall ‘all the answers’ – you don’t always need to have all the answer.…..but it is useful to know someone that does ha ha. Personally my resolution for next year is to continue to strive for a reasonable work/life balance.
Donna McDowell, HR Manager, Oxfam Ireland

During the current recession I have seen better opportunities for a new breed of managers, who challenge processes and procedures and inspire a shared vision of the future. Therefore, my biggest HR lesson from 2011 is that HR Professionals are playing a greater role in all aspects of business strategy, management development and have been more creative in relation to staff training. Professionally I am setting myself the challenge of completing a Certified Environmental Awareness course to look at cost reduction via better environmental management and developing policy, procedures and action plans accordingly. On a personal level, I look forward to all the joy that family life continues to bring and creating some times for a few spa treatments along the way if possible!
Linzi Conway, KTS Consultants

I’m not sure if this is a lesson learned or more something that has come to the fore for me having joined shortly after a major re-structuring but the importance of clear communication, focusing on people and providing as supportive and encouraging an environment as possible to keep employees engaged and motivated is definitely something which has been highlighted to me over the last few months.

Resolutions: Well of course I have the usual resolutions of getting fit (never quite seem to achieve that one) and spending plenty of time with my family and friends (not normally too bad on that front).
Professionally, and stemming from the lessons learned since I have started in this role, I will be continuing to focus on employee engagement and motivation and what the organisation can do to effectively support and encourage our members of staff not only for the benefit of our employees but also for the benefit of the organisation as a whole and the clients to whom we provide a service.
Claire Murray, HR Manager, Futures NI/PRRT

Biggest lesson of 2011 – Authentic leadership always ‘wins’. This has been evident when clients have had to make tough business decisions (redundancy/restructuring) and the way they treat their people. Resolution for 2012 – Achieving continuous professional development goals despite a reduced budget!
Fionnuala McIntyre, Learning & Development Consultant

2011 has been a tough year for business and employees alike. Many Employers have had the ironic challenge of attempting to implement rationalisation and engagement side by side with us as HR practioners guiding them through the legal and emotional turmoil.

For 2012, think ‘commercial’, think ‘legal compliance’ and think ‘truly engage your people’.
Anne Dougan, Managing Partner, thinkpeople Consulting Ltd

Hopefully this has given you some food for thought and reflection. As we approach a new year what are your own personal reflections and learning points? What will be your work and personal resolutions?

We recommend all to reflect on what challenges you have found most difficult this year. What skills have you developed as a result and what has this taught you for the future?

Defining Engagement
In 2009, a Government authorised report by David MacLeod significantly raised the profile of what organisations across the UK understand Engagement to be and since then the term is used to a greater extent around top tables. Defining Engagement however, proves notoriously difficult, given that it involves the intangible relationship between employee and employer. The MacLeod report refers to over 50 definitions but settles on this description of Engagement Strategy;

“A workplace approach designed to ensure that employees are committed to their organisation’s goals and values, motivated to contribute to organisational success and enhance their own sense of wellbeing.”

The definition is helpful in that it points to the fact that Engagement Strategy is a proactive approach in an environment in which organisational goals are shared and there is a focus on communication, individual contribution and wellbeing. Focusing on Engagement is a ‘no brainer’, given that it leads to an increase in ‘discretionary effort’ or put more simply, employees will choose to ‘go the extra mile’. Research points to a strong correlation between engagement and performance.

Despite the talk, research suggests that the UK workforce has not become more engaged and productive. The CIPD’s 2011 ‘Employee Outlook Survey’ concluded that engagement may be as low as 10%, using factors such as understanding the organisation purpose and trust in senior managers. The focus on cost efficiency in recent years, threats of redundancy, wage freezes, and increasing work intensity appear to have combined to effectively disengage the workforce. The question is:

Is it possible to engage during times of economic difficulty?

In our view, Engagement has been around as long groups have been organised to achieve a common purpose. Can Engagement exist in difficult circumstances? We believe so, in fact, engagement can be seen to increase where there is a sense of common purpose in achieving something despite adversity. Examples can be drawn from history, but modern business case studies suggest that even during the recession, high performance can be linked to high levels of engagement.

Where to start

1. Find out where you are starting from. Take steps to discover the current situation and provide a starting point from which to monitor and measure improvements in engagement in relation to performance. This will be important in getting buy in from senior stakeholders. Schedule one to ones, encourage ‘open dialogue’ and discuss the commitment to re-engaging those who may have become disillusioned. Conduct an anonymous survey to get an understanding of the real issues. Formulate an action plan, focusing on key issues. Repeat the survey annually to track improvements and identify areas which require focus.

2. Focus on Manager Competence. It is important that employees feel that their ideas are valued and that they can make a valid contribution to decision making. Line managers should be consistent in an approach to involving their teams and respond honestly to issues and feedback when raised, without creating fear of punishment. Regular opportunity for one to one time is an important element of engaging individuals. It is likely that some managers will be less comfortable with this approach and may need to be coached in how to adopt a more inclusive approach. Research has identified that Manager competence is the single most important factor in engaging employees. Making time, fairness, setting challenging but realistic targets and encouraging job discretion are all important factors.

3. Leaders as role models. Employees will take their cue from the behaviour and commitment of senior people. Consider whether the organisation is clear about its direction, its goals and values. Have these been well and regularly communicated? Do leaders model their passion and commitment?

4. Wellbeing. Engaged employees report a sense that the employer is concerned for their wellbeing. This may come in many forms including regular assessment of stress factors such as workload, levels of job clarity and autonomy. You may also consider encouraging employees to improve their health and fitness via awareness sessions and providing free information. Larger organisations may stretch to a wellbeing policy which may include gym sponsorship or private health care options.

5. Provide opportunities for growth. Turnover may have reduced in recent years across many organisations and opportunities for promotion may be more scarce. It is important to look for ways in which employees can continue to grow. Consider the use of talent programmes, project work, job rotation and acting up positions.

Engagement is high on the agenda

Some of the brightest minds across the UK, including notable business leaders, academics and economists, share the view that focusing on Engagement may be the key to survival in what has been described as the worst recession in recent history.

• In his very recent Labour Relations Agency public lecture, John Philpott, Chief Economic Advisor for the CIPD, warns that a failure to engage employees across the UK is impacting on employee and organisational performance, often accompanied by rapid labour turnover, high levels of work related stress and sickness absence. He warns that if employers do not ‘rethink the way of work’, we will fail to meet the economic challenge that confronts us.

• The Coalition Government has set up an employee engagement taskforce headed by David MacLeod to generate debate and share best practice on the subject of Engagement via a new website which includes HR Directors from BT, Marks and Spencer and Unilever amongst its members. A number of practical tools are in the process of being developed including how to engage in times of adversity, wellbeing and CSR (Corporate Social Responsibility). The taskforce aim to present findings and conclusions in 2012.

Engagement should no longer be considered a ‘nice to do’. We can define it, measure it and directly link it to performance. Have you made a start?

The Temporary Agency Work Directive (2008/104/EC) was adopted by the European Council in November 2008. Guidance has been released in GB, and whilst both GB and NI Regulations are currently in draft form, the deadline for implementation of the Agency Workers Regulations (NI) 2011 is 5th December.

The following information brief aims to give you a quick explanation of the current guidance already released in GB, given that the NI Regulations are expected to closely mirror these. Most importantly, this update is designed to give you a heads up on what is coming, so that you may review your current practice and budgets in time for the changes expected at the end of the year.

Requirements from 5th December 2011

In summary, the Regulations will introduce ‘equal treatment’ to AWs. AWs will be entitled to the same basic working and employment conditions as a directly recruited employee (the comparator), subject to completion of a 12 week qualifying period. Organisations using AWs are referred to as ‘hirers’. The 12 week period is triggered when the AW works in the same job with the same ‘hirer’ for 12 calendar weeks.

In order for the Regulations to apply there must be a ‘tripartite’ relationship between the ‘hirer’, the agency and the AW.

Definition of an Agency Worker (AW)

An AW is someone who:
• Has a contract of employment or contract for the supply of personal services with the agency;
• Is temporarily supplied by the agency to the hirer and;
• Whilst on assignment is subject to the supervision and control of the hirer.

Day 1 Rights for all AWs

From day one, the Regulations afford the AW the same access to:
• Collective workplace facilities and amenities (such as canteen, transport, crèche, toilets /showers, prayer room, car parking etc).
• Information relating to vacancies (the Regulations do not stipulate how applications must be dealt with or constrain the ‘hirer’ in what minimum requirements are placed on job being advertised).

Rights after 12 weeks

After 12 weeks the AW will be entitled to the same basic working and employment conditions to which they would have been entitled had they been directly employed by the hirer into the same job. Relevant terms and conditions include:

• Pay ( including all pay in connection with employment including bonus, commission and holiday pay but excluding pension, occupational sick pay, occupational maternity pay, redundancy pay, share options, loyalty bonuses and expenses)
• The duration of working time
• Night work
• Rest periods
• Rest breaks
• Annual leave

The guidance suggests that it is not necessary for the AW to identify a comparator (an employee in an equivalent role) given that it should be possible to determine employment conditions without one, however, if the hirer can identify an appropriate comparator and treats the AW the same, they will be deemed to have complied with the Regulations.

What Counts as Pay?

Whilst the Regulations appear to include all pay in connection with employment as described above, the Regulations remain silent on certain types of pay such as Christmas and Attendance bonuses. The current advice is to concentrate on paying agency workers the same elements of pay (after 12 weeks) that is connected with the quality or quantity of work. Hopefully the NI guidance when released will clarify this point.

Pregnant AWs

Pregnant AWs (who have passed the 12 week qualifying period) will be entitled to time off to attend anti-natal appointments. The time is paid by the agency, which is likely to re-charge back to the hirer. Hirers will have a duty to make adjustments to protect AWs from identified risks if either pregnant or recently given birth and/or breastfeeding. If no adjustment can be made to mitigate the risk, the hirer will be required to inform the agency, who will either assign appropriate alternative work or pay the AW for the remaining expected duration of the original assignment.

Important Considerations!

Performance Appraisals for AWs

Since equal treatment includes pay relating to the quantity and quality of work, assessment of AW performance will be needed, this will be new for many hirers. The guidance suggests that rather than incorporate AWs into the employee appraisal system it may be more practical to either devise a simpler system for AWs or to utilise the agency’s existing feedback system to track performance.

The Regulations include anti-avoidance provisions!

A fine of up to £5000 can be made against a ‘hirer’ or an agency or split between the two, where a tribunal considers that the likely explanation of a pattern of assignments with the same hirer has been implemented with the sole intention of preventing the AW from triggering the 12 week qualifying period. The AW will normally need to show that a minimum of two assignments have been cut short in order to show a pattern. Examples of avoidance include a pattern of 11 week assignments divided by a six week break or moving an AW to different departments within the same organisation to break up a period exceeding 12 weeks.

Swedish Derogation

Where an agency can offer an AW a permanent contract and pay the AW between assignments at a rate of at least 50% of the worker’s basic pay whilst on assignment, the agency may be covered by the ‘Swedish Derogation’. In this case the hirer will be exempt from the equal pay requirements covered by the Regulations; however the day 1 rights and remaining 12 week rights will still apply.

Frequently Asked Questions

Can an agency worker with over 12 weeks service claim unfair dismissal?

No. The Regulations do not affect the employment status of AWs, and therefore they do not gain rights which are dependent on being an employee, such as the right not to be unfairly dismissed.

Do the regulations apply to managed service contracts, such as the contractors who provide the housekeeping and security?

Under normal circumstances the Regulations will not apply to managed service contracts. Where the managed service contractor has the responsibility for managing and delivering the housekeeping or security service rather than just supplying the staff, the Regulations will not apply. However if the contractor is not present in the daily direction of the staff and does not determine how the work is done, it is more likely that the Regulations will apply.

What if I move the AW to a different role?

The anti-avoidance provisions in the Regulations will require that a new role must be substantially different in order to effectively ‘reset’ the 12 week clock. There must be a substantial and genuine difference which may include different skill requirements, different pay and working hours or a different location.

What will be the liability for failing to meet the Regulations?

Tribunals will award compensation for loss of earnings or appropriate compensation for being denied access to facilities. There is no maximum award; however the minimum award will be two weeks pay.

What should we do next?

1) Assess you own practices in relation to use of Agency workers. In particular consider the following;

• How often do you use AWs and why?
• Are the same AWs brought back repetitively into different parts of your organisation?
• How long do AWs stay on average, if this is over 12 weeks this may be an important consideration in future resourcing methods?
• Look at the terms for each role you are likely to use AWs. Consider basic pay, overtime, performance pay, shift allowance, unsocial hrs pay, annual leave, night work and rest periods. Assess the effect of total cost.
• Consider the advantages versus the disadvantages of continuing to use AWs as opposed to employing staff directly. Consider which will be more cost effective.

2) Identify where changes / amendments to practice will be required;

• Are there amenities or facilities which are currently unavailable to AWs? If waiting lists apply, e.g. for a crèche facility, ensure that this list can be extended to AWs.
• Look at AWs induction from 5th December; ensure information is provided on collective amenities or facilities and where they can find details of current vacancies.

3) Review your choice of agency

• If you currently use a number of agencies it may be an idea to consolidate this number in order to reduce administration and keep track of the 12 week qualifying period.
• Consider how well your agency of choice is prepared for the regulations. The more pro-active the agency is prepared to be, the better. In particular will the agency keep track of time and prompt you if an AW is approaching the 12 week point? Will the agency prompt you to send the AW the relevant information at the 12 week point? Will holiday requests and sick leave be managed by the agency?
• You will need to review your contract will the agency, the proactive agencies will be prepared for this. Factors for consideration include:
-whether the agency fee will be based on basic or total pay (including overtime and shift working)
-who will cover the cost of time off for antenatal appointments or for absence related to pregnancy?
-Will the fee be variable if AWs must receive an uplift mid assignment? How will this be managed?
• Is the agency set up to take advantage of the ‘Swedish derogation’? Will the increase in fees be beneficial versus the savings in relation to reduced pay?

Should you require any assistance with ‘next steps’, forms, policies or training, please contact thinkpeople and we will be pleased to assist with this.

The ability to apply innovative solutions to a process, product or service has long been recognised as a source of competitive advantage. Whilst creativity and innovation are often associated with new technologies, the fact is that creativity can and should be applied in all environments. Being creative can simply mean finding the most elegant solution to a business problem. Taking creativity seriously requires time, imagination and touch and bravery.

So what is preventing the new ideas from flowing?

You and your team may not be being actively creative as part of your daily routine. If you lead a team, YOU may be main barrier to creativity! Creative cultures do not develop in a vacuum, the approach must be modeled, nurtured and encouraged by leaders. Here are some of the behaviours which can stifle creativity.

We accept the boundaries at which we usually rest
To encourage innovation, think outside of the usual parameters. It may be a cliché, but’ outside of the box’ is most often where it all happens

We think we cannot overcome a problem or do better
Its easy to think there is nothing more we could do. If we know we can improve, we usually do.

*We respond to creative ideas in one of the following ways;
*Change the subject
*Laugh or fob them off
*Say that it has been tried before (unsuccessfully)
*Fiddle with the original idea until it is no longer recognisable
*Put the idea to a committee who will take an age to respond

Creative behaviours
Good leaders of people know that tapping into the collective wisdom of a team is of great value. If you have been able to create a positive and encouraging working environment, your team will not be afraid to express their ideas when encouraged to do so. Here are some tips for getting the creative juices flowing;

1. Establish a climate of openness. Let the team know that ideas that may seem ‘out there’ will be welcome and encouraged. Talk about your own unusual ideas with the team and encourage their thoughts.
2. Acknowledge ‘groupthink’ exists and fight it. Recognise that teams have a tendency to start to think in similar ways. In group brainstorming, ask people to come up with diverse ideas.
3. Catch the apple when it falls. The advice to’ keep a notepad by the bed’ is excellent for creativity. Always make a note of ideas as they come to you (wait until you towel dry first, if its in the shower!). Encourage your team to do the same and share the notes.
4. Provide stimulation and encourage others to input. If you come across an interesting piece of research, an article, a news story or even an anecdote, send it to the team. Ask for their thoughts, ask yourselves whether you could apply the idea. Encourage your team members to share anything of interest too.
5. Reward creativity. If your team has been able to meet or exceed creative goals, recognise the achievement by thanking them. When an idea is being implemented, find out what would be a valuable form of recognition to the individual who came up with the idea and if the implementation is successful, follow through with a reward.
6. Challenge current approaches to your work. Ask the question, why do we do it this way? What if we didn’t do this at all? Play devil’s advocate and have the courage to try something different.
7. Try not to over analyse. New ideas are untested and if they are overanalysed too quickly, they may be killed before they have a chance to grow. Instead try to build upon new ideas and encourage trials or pilots.
8. Keep the momentum. Harness the energy behind a good creative session by getting the ball rolling as soon as possible. Get the right people on the job and get going. Resist the temptation to have meetings about meetings, they are killers of action!
9. Be brave. Show your team that you are willing to go against the grain and stand up for an innovative approach that you think might work. Encourage them to do the same.
10. Call on creative types. Look for evidence of innovation and creativity when you are recruiting. When searching for ideas, call upon those who demonstrate the ability to be creative.
11. Have fun! Teams whose work is engaging and allow a little fun, tend to be more open and creative.
12. Book regular creative sessions. Step outside of the quotidian by booking time for creativity. Consider use of some of the following techniques during the sessions with your team:

Brainstorming
Prepare participants by asking them to consider ideas on a specific issue in preparation for a brainstorming session. The idea is to capture as many thoughts as possible.

• Generate a lot of ideas
• Use mind maps
• Target the session e.g. aim for 20 ideas in the next hour
• Withhold criticism
• Welcome unusual ideas
• Combine and improve ideas

Reverse Brainstorming
Reverse the problem or challenge by asking:
“How could I possibly cause the problem?”, or
“How could I possibly achieve the opposite effect?”.

• Brainstorm the reverse problem
• Reverse these into solution ideas for the original problem or challenge
• Evaluate these solution ideas

Six hats technique
A technique established in the 80’s by Edward de Bono, the six hats technique encourages participants to think in ways which may not be their default way of thinking, and ensure that the session considers things from a spectrum of perspectives. Each participant is encouraged to respond to the problem whilst wearing a different hat. The hats represent different ways of thinking, including factual, emotional, critical, optimistic, creative and process driven thinking. This technique may require practice and it is advisable to allow participants to warm up by practicing the technique.

SCAMPER
This technique is very much orientated towards a new product or service that may be linked with research work. Each product or service is considered and broken down to consider alternatives:

• S – Substitute – components, materials, people
• C – Combine – mix, combine with other assemblies or services, integrate
• A – Adapt – alter, change function, use part of another element
• M – Modify – increase or reduce in scale, change shape, modify attributes (e.g. colour)
• P – Put to another use
• E – Eliminate – remove elements, simplify, reduce to core functionality
• R – Reverse – turn inside out or upside down, or use reversal

Go for it!

If you are serious about how to encourage creative thinking, you must start with yourself. Challenge yourself and your routines. Talk to your team about the need for innovation and model the kind of behaviours you would like to see reflected in those reporting to you. Go for it.

Article written by thinkPeople LTD
HR Consultancy Northern Ireland
HR Consultants Northern Ireland
HR Consultancy Belfast

If you haven’t yet read ‘The Employer’s Charter’ published by the Government earlier this year, it is essentially designed to help remind employers to have the confidence to do what is right for their business. The Charter is simply a list of things that an employer is entitled to do, such as contact a woman on maternity leave and ask her when she plans to return. The idea is that employers have become too wrapped up in red tape and fearful of costly tribunal cases. The Government feel the time has come to free employers of some of that burden.

Seems sensible enough, doesn’t it, but the subject of whether the current level of regulation in the UK labour market is the main cause of a slowed economy is hotly debated. The Charter itself has come under criticism for being oversimplified.

There is no doubt however, that employment legislation can sometimes create concern and often frustration, particularly to the untrained eye. But is the Charter any use? Well, in our view it could be, but it certainly is lacking in vital information if risk is to be avoided. In fact, we argue that if employers take the points at face value, we might well see an increase in cases!

So without further ado, here is the Charter with some hopefully helpful commentary to expand on each point;

THE EMPLOYERS CHARTER

As an employer – as long as you act fairly and reasonably – you are entitled to:

1. Ask an employee to take their annual leave at a time that suits your business

Well, yes and no. If your contracts or collective agreements state otherwise, these cannot simply be overridden. Where you are not bound by contract the regulations allow the employer to give notice of the requirement to take all or part of statutory leave on particular dates. Good open communication will be the key to getting an outcome which is agreeable to all.

2. Contact a woman on maternity leave and ask when she plans to return

The regulations do allow for ‘reasonable contact’ during maternity leave. It is good practice to maintain contact and provide updates about what is going on. Enquiries about plans to return are fine as long as they are non-threatening or repetitive. However, unless she plans to return early, the employee is under no obligation to commit to her intentions to return. An employee intending to return early must give eight weeks notice of her intention, otherwise she may simply report to work on her return date.

3. Make an employee redundant if your business takes a downward turn

That this is on the list reflects the surprising fact that many employers (particularly the smaller ones) are still nervous about how to handle redundancies. In a downturn, often an employer is faced with a ‘diminished requirement for work of a particular kind’, which is a perfectly valid reason for redundancy. However, the employer will be required to genuinely consult on the matter and look for opportunities to avoid or reduce the impact of redundancy. The method of selection for any proposed redundancies should be carefully considered and implemented, and the right to appeal afforded to those selected, using the statutory dismissal procedures. You can find a helpful checklist in our newsletter of February 2010 or an overview of requirements from April 2009, both are accessible through the thinkPeople website. Good guidance is also provided by the LRA or ACAS.

4. Ask an employee to take a pay cut

A delicate subject but in fact an employer can cut employees’ pay only if they consent to the change to their contracts. Employees may well agree to such a change if the reason for the cut is business sustainability and the alternative would likely be redundancies. If employees refuse, there is the option to dismiss the employee and re-engage them on new contracts as long as there is a genuine business reason for doing so. If the employer is to dismiss and re-engage 20 or more employees it must follow the statutory consultation procedures for collective redundancies.

5. Withhold pay from an employee when they are on strike

Yes, those who refuse to work are not entitled to payment for that time. Depending on the contract of employment this can be calculated hourly or daily.

6. Ask an employee whether they would be willing to opt-out from the 48 hour limit in the Working Time Regulations

Yes, the regulations allow for this via an opt out agreement, so long as it is signed voluntarily by the employee. A worker must not be subjected to any kind of detriment for refusing to sign an opt out agreement.

7. Reject an employee’s request to work flexibly if you have a legitimate business reason

This is an area which can be difficult to navigate, but the key is to thoroughly consider if your business reasons are truly legitimate. The sort of reasons which are deemed to be legitimate include; the burden of additional costs; a detrimental effect on ability to meet customer demand; an inability to reorganise work among existing staff or recruit additional staff; a detrimental impact on quality or performance; insufficiency of work during the periods the employee proposes to work and planned structural changes.

8. Talk to your employees about their performance and about how they can improve

The issue here is usually about the failure of some employers to have the appropriate discussions, give the employee fair and reasonable opportunity to improve and record progress and discussions in writing. All too often a level of frustration builds and an employee is dismissed without proper procedure or evidence of underperformance. Whether the issue is misconduct or capability, both are important discussions to have using formal procedure, if necessary.

9. Dismiss an employee for poor performance

Capability is a legally defined ‘fair’ reason for a dismissal and would include poor performance. Before reaching the dismissal stage an employer must carry out a proper investigation into the employee’s performance and give the employee a full and fair opportunity to rectify the problem.

10. Stop providing work to an agency worker (as long as they are not employed by you)

True, however agency workers may be viewed as employees in specific circumstances, especially if they have been treated as an employee and have been employed for a significant period of time. The law in the area is still developing. Care should be taken over the agreement set up with the agency and between the worker and the agency.

11. Ask an employee about their future career plans, including retirement

Since the removal of the default retirement age, employers in most cases will not defer to a compulsory retirement age and will manage retirement on a case by case basis. Future plans are a normal aspect of career discussions, however in most cases employees will choose to retire when it suits them. A small number of employers may apply compulsory retirement where it is objectively justifiable and a means of achieving a legitimate aim. Case law, as it develops will help clarify what can be considered legitimate.

For many of our readers, you will already know that there is so much more behind the points in the Charter and that every case needs to be considered on its individual merits. So, is the Charter useful? What is missing? Will it liberate employers and free them of their shackles ….? Let us know your views. We will share your views (the printable ones at least) in our next HR Clinic. You can email us at angela@thinkpeople.co.uk or access our newly updated website via the link http://www.thinkpeople.co.uk.

Article written by thinkPeople LTD
HR Consultancy Northern Ireland
HR Consultants Northern Ireland
HR Consultancy Belfast

In 2003, the N.I. Employment Order was introduced as a means of dealing with grievance and discipline in the workplace with the eventual aim to reduce tribunal claims.

This has not happened, in actual fact, latest figures for Tribunal claims in both England and N.I, show that tribunal claims have increased dramatically. General consensus suggests that the grievance procedure became very rigid and led to an increase in legalistic behaviour in regard to workplace grievances.

We therefore are now in a situation whereby the grievance procedures as set out in the NI Employment Order 2003 have been repealed but the statutory dismissal and disciplinary procedures under the Employment NI Order 2003 remain.

This information brief is intended to provide a brief overview of the main changed to the Code of practice (launched on 4th April 2011) and highlight where this may affect your workplace.

Can a tribunal still find a claim automatically unfair if a step is missed?

In the past if an employer did not follow the statutory 3 step procedure for both grievance and disciplinary proceedings, it would leave them susceptible to a finding of automatic unfair dismissal with an uplift of 10-50%, or, in the case of failure to follow the statutory grievance procedure, an increased award of 10-50%.

This is still the case in regard to disciplinary and grievance proceedings (even though there is no mention of a 3 step grievance procedure). A Tribunal can still uplift an award to 50% where “a failure to follow the grievance procedure” is found. Although there is no mention of the statutory 3 step grievance procedure, all of the elements of the previous 3 step procedure are still there and to omit any steps (letter, meeting, appeal) will leave the employer facing the risk of a 50% uplift.

Have both the Grievance and Disciplinary Procedure changed dramatically?

No, the regulations surrounding disciplinary procedures have remained the same but the grievance procedure has changed in the sense that the code is less directive in regard to a strict “procedure” which must be followed.

Grievance Procedures April 2011

The following outlines some of the main changes to the grievance procedure.

According to the code, a grievance is defined as “a concern, problem or complaints that an employee has about some aspect of their work e.g. about a work colleague, manager, decision, policy the application of a policy or a working relationship”.

The code further outlines issues which cause grievances to include:

· Terms and conditions of employment
· Health and safety
· Personal relationships at work
· Bullying and Harassment
· New working Practices
· Working Environment
· Organisational change
· Equal opportunities.

Where an employer receives a complaint in regard to the above areas, it is prudent to deal with this as a grievance and, dependent on the situation, attempt to use the informal process to deal with same. Where this is not possible or where the informal process has been exhausted and resolution not achieved, the formal process should then be followed.

Such basics, as outlined above, remain unchanged.

Changes to the Grievance Procedure

The wording within the new code in relation to grievances removes the term “statutory 3 step grievance procedure” and instead, replaces it with “formal” procedure. For most of us working in HR prior to 2003, this situation is not vastly different to how grievances were dealt with prior to the 2003 Employment Order.

The new code states:
i.e. “if a grievance cannot be settled informally, the employee should raise it formally with management, using the formal grievance procedure”.

To this end, the formal procedure is as follows:

1. The employee should raise the grievance in writing setting out the nature of the grievance
2. Employers should arrange a formal meeting with the employee affording the right to accompaniment where they explain their grievance and state how they think it should be resolved.
3. The decision should be communicated to the employee in writing without unreasonable delay offering the right to appeal.

Previous wording in the 2003 code stated “there is a statutory grievance procedure that employees must invoke if they wish subsequently to use the grievance as a basis of certain applications to a tribunal”.

The previous code included the provision that an employee could not raise a tribunal claim until it had followed the statutory 3 step grievance procedure and waited 28 days before submitting a claim. Such language and provisions for claims has been removed. Tribunal claim forms no longer ask an employee if they have raised the claim with their employer before making a claim.

What about the Modified Grievance Procedure?

This has disappeared completely from the new code and now begs the question as to how employers handle grievances received from an employee who has left employment. On reading the code, our impression would be that it does not specify that an employer should respond to a grievance raised after an employee leaves employment. Consequently, if an employee does not have to raise a grievance before submission of a Tribunal claim, then the number of grievances received on leaving the workplace are sure to reduce if not disappear.

However, on a practical note, if an employer receives a grievance from a past employee and it would appear that there are some issues to resolve, it would be in everyones interest to attempt to resolve same rather than allow the disgruntled employee to go straight to a tribunal where this could be avoided via the grievance process or mediation.

Disciplinary Procedures April 2011

The discipline procedure has not changed. The following update serves as a reminder of basic provisions of the code.

The new code commences with the following “when dealing with disciplinary cases, employers need to be aware of both the law on unfair dismissal and the statutory minimum procedures contained in the Employment (NI) Order 2003 for dismissing or taking disciplinary action against an employee”.

The statutory minimum procedure will effect all disciplinary action and covers all stages of disciplinary sanctions – verbal, written etc. The minimum 3 step procedure is also relevant to capability issues, i.e. where you decide to deal with underperformance which ends up within the disciplinary process due to the fact that improvements have not been forthcoming due to conduct issues.

As always, even when procedural correctness has been achieved, the key to any disciplinary is to act “reasonably”, dependent on the circumstances of each case.

The code again emphasises that employers must follow the statutory minimum procedure if they are contemplating dismissal or some other disciplinary penalty, this also includes redundancy dismissals and surprisingly, still applies to the end of fixed term contracts. The statutory procedure does not apply to redundancy and end of fixed term contracts in England, however has been upheld in N.I legislation.

Therefore all terminations of contracts should be dealt with according to the statutory minimum 3 step procedure.

Investigations

It would appear that there is still the option to hold an investigatory meeting without following the 3 step procedure where this is made clear that it is not a disciplinary meeting and does not progress into a disciplinary meeting. If a disciplinary were to follow, it should be convened for a different date, giving ample notice and sending a letter outlining what the issues are.

The process for movement throughout disciplinary sanctions still remains the same commencing with a verbal warning, first written, final warning and dismissal. Records are to be kept as before, verbal warnings removed after 6 months and written warnings removed after 12 months. We advise all clients to ensure that their disciplinary processes are cumulative.

The original and remaining 3 step disciplinary procedure

The 3 steps remain as follows:

1. Write to the employee notifying him/her of the allegations against him/her and invite them to a meeting to discuss the matter
2. Inform the employee of the basis of the allegation before holding the meeting to discuss this – at which the employee has the right t be accompanied – and notify the employee of the decision.
3. Offer the employee the right of appeal, hold an appeal meeting at which the employee has the right to be accompanied – and inform the employee of the final decision.

It is worth noting that the 3 step minimum disciplinary process should be followed where sanctions are imposed such as loss of seniority or loss of pay.

As noted at the start of this document, in the event where a case is taken against an employer and the above steps have not been completed, the tribunal will find the dismissal automatically unfair. In addition, if the employee has failed to follow the procedure i.e. attend meetings or fail to raise appeal, their compensation will be reduced by 10 and 50 per cent.

When the 3 step disciplinary procedure is not required

Exceptions where the 3 step procedure does not need to be followed include suspension on full pay or a warning and obviously, constructive dismissal.

Overlapping disciplinary and grievance issues

The code allows for two different approaches i.e. dealing with both issues concurrently or suspending the disciplinary process in order to deal separately with the grievance. Advice should be taken in regard to which approach to follow in this instance.

Article written by thinkPeople LTD
HR Consultancy Northern Ireland
HR Consultants Northern Ireland
HR Consultancy Belfast