I recently attended an employment law update hosted by the CIPD and thought I’d share some of the key highlights that are likely to impact on us as practice managers.
Statements of Particulars (i.e. Contracts of Employment)
From 6th April 2020, the duty on employers to provide a Contract of Employment to an employee is changing. The contract now needs to be given to the employee on or before day one of employment. So, no waiting till you’ve got all the checks through or you’ve ironed out the last details. The safest way to manage this is not to let the employee start before the signed contract is back in your possession. While this might seem tricky, if you have a good template contract ready to go at all times, this really isn’t that much work. All you need to do is update the relevant sections of the template and you’re good to go. Be prepared, at the point of offer, regarding what you’re willing to negotiate on, what your T&Cs are and you should then have it all agreed once the offer is accepted.
From 6th April, contracts will also have to include the details of the working hours and working days – but you can mention that these can be varied if necessary, although you will have to state in what way. This may seem a bit inconvenient for some of us who rely on the fact that we don’t have to stipulate the working pattern (e.g. saying “your working hours are 37.5 per week which will be worked Monday to Friday according to business need”). But it isn’t really that bad. The main point is to be specific – even if this means stating that the working pattern is variable. For example, “Your contract is for 25 hours per week and you will be required to work shifts from Monday to Friday. Details of your shifts will be provided in a rota given to you 6-8 weeks in advance. Shifts may be varied depending on the needs of the business but any changes will be confirmed to you in writing with a minimum of 2 weeks’ notice” is perfectly fine. Alternatively, if you have staff who work fixed days but you’re concerned you may need to vary this arrangement in the future, a clause stating, “Whilst your days of working are currently fixed, should the practice need to amend the working pattern in the future, you will be formally consulted about any potential changes”. Ensure you have a consultation policy in place to back this up.
The new contracts will also need to include entitlements to paid leave and any other benefits, as well as details of probationary periods and any training requirements that need to be completed. You will need to reference any entitlements related to employment law (e.g. sick pay, maternity/paternity/adoption/parental leave and pay, etc.), collective agreements and notice periods.
Statements of Particulars will apply to workers as well as employees. Therefore, anyone who works for you – for example, as an agency worker – will also be entitled to a copy on day one. It won’t be the same document as regular employees because ‘workers’ aren’t entitled to the same employment rights or the same terms and conditions of employment.
Essentially, for many of us who already use a standard template Contract of Employment – quite often provided to us by outside companies – what we have in place will already cover these new requirements. The key change is the provision of the contract on or before day one of employment. Practice Index will be issuing updated contracts soon that reflect these changes. They can be found here: Contract of employment – apprentice, Contract of employment – employees, Contract of employment – variable hours.
Changes to the calculation of holiday pay for non-standard hours
This one has been raging on in the courts for ages now and is basically already being adopted in workplaces. It’s also already being used for staff on zero-hours/bank contracts, where annual leave is calculated on an average period (currently of 12 weeks) to ensure workers on zero-hours contracts, or those doing regular overtime, are compensated in terms of holiday pay. The requirement to do this isn’t changing, but the reference period is – and this is being seen as being more friendly towards employers. The reference period will no longer be the average over a period of 12 weeks, but will be an average over 52 weeks. This should make it easier for the employer to manage. So, essentially, you tot up all the hours worked under a zero-hours contract, or all the overtime worked in a 12-month period added to the normal hours, divide it by 52 and you come out with a figure representing a week’s pay for the purposes of calculating the employee’s holiday pay.
However, the 52 weeks reference period will also need to include averaging for any enhanced overtime pay and/or commission that the employee would have received for those hours. Commission doesn’t really apply to our field of work so I’m not going to go into it; it’s just the enhanced overtime pay that we need to consider. If you have any arrangements in place for enhanced pay – e.g. for unsocial hours/weekends/flu clinics, etc. – you need to take this into account when paying out that additional leave. As far as I know, however, this refers not to what was paid at the time the overtime was worked, but to whether the employee chooses to take the leave as paid leave, thereby missing out on the opportunity for enhanced pay as a . For example, they want to take the leave, and would normally work a regular Saturday shift at an enhanced rate, so when you pay them for the annual leave for that day, you need to pay them at the enhanced rate, even though they weren’t in work.
Reduction in the thresholds for information and consultation
The Information and Consultation of Employees Regulations 2004 give employees the right, subject to certain conditions, to request that their employer sets up or changes arrangements to inform and consult them about issues in the organisation. This only applies to organisations with 50 or more staff. The threshold required for a valid request to set up information and consultation arrangements will be reduced from 10% to 2% of employees. The requirement for the request to be made by a minimum of 15 employees remains in place.
Again, I don’t expect this to have a great impact on us as I’m fairly confident most of us would consult with staff – either formally or informally – on any proposed change anyway, but it’s good to be aware of this if we’re thinking of only consulting with a couple of staff on an issue; if you work in a small surgery, you may easily meet that threshold.
Parental bereavement leave and pay
You may already be aware of this one, but it’s coming into effect from April 2020. This new legislation gives the right to two weeks’ leave if they lose a child under 18 or experience a stillbirth after the 24th week of pregnancy. Employees with 26 weeks’ continuous service will be entitled to two weeks of paid leave at the statutory rate and other employees will be entitled to unpaid leave. This applies to both parents.
I know what you’re thinking; is this going to make much of a difference? In my experience, most parents who sadly lose a child get signed off by their GP with “bereavement reaction” and go straight onto sick leave. Your compassionate leave policies probably already give employees a week’s paid leave to process the loss and make arrangements. However, I think this new legislation is a good idea. It’s on top of your compassionate leave entitlement, so essentially gives parents (or would-be parents) three weeks’ paid leave without having to eat into sick pay or leave. As an employer, you can provide valuable support through this extra time, giving the employee one less thing to worry about and one less concern to deal with when they’re already distraught. I also think it’s good that it enshrines into employment law the rights of parents of stillborn children, something not previously covered.
Proposed changes not yet confirmed
There are some proposed changes being debated currently that haven’t yet been approved, but seem quite likely to come in relatively soon.
One is the proposal to extend the period of redundancy protection for employees on maternity leave. Currently any employee on maternity leave who’s been identified as being at risk of redundancy will have priority access to any suitable alternative roles. The proposal is to extend this period of priority to six months following their return from maternity leave. In turn, this would probably be extended to people on adoption leave and shared parental leave. One to watch out for!
Another proposal is for employees to be given the right to request a more fixed working pattern. This would fall under the umbrella of the flexible working provisions, and would still require employees to have 26 weeks’ continuous service before the request could be made. I see this one causing most problems for employees who work on variable shifts. More guidance will no doubt be published if this is agreed, but HR professionals believe the same process would apply as per a flexible working request: the employee would have to make an application and highlight the benefits for the business as well as for themselves, and the employer would have the right to refuse the request provided there’s a justifiable business need. I can see this one adding to the PM workload!
There’s also a proposal to change the duration of the period required to break continuity of service. This will have an impact quite widely if implemented as large collective agreements such as Agenda for Change and processes such as those for staff who retire and return use this legislation for breaking service. The current duration is one week to nullify continuity of service, but the proposals would extend this period to four weeks. This would mean that anyone retiring and returning would need to remain off work for four weeks before returning in order to break their service. It also means that staff on AfC, moving between AfC-aligned organisations, would bring their continuity of service with them if they didn’t have four weeks between roles. One to keep an eye on!
One other thing I picked up was mentioned in a workshop I attended, which highlighted that the statutory duty to provide reasonable adjustments for employees is limited solely to the protected characteristic of disability. On the forums, I’ve noted lately that we bandy the term “reasonable adjustments” about, particularly when referring to maternity, but there’s actually no statutory duty to provide reasonable adjustments to pregnant staff or staff returning from maternity leave. While, of course, you shouldn’t discriminate against staff based on pregnancy or maternity, you’re not legally obligated to make adjustments for them; I assume this is based on the fact that pregnancy lasts for only nine months and therefore doesn’t fit the “long term” element of the definition of disability.
So, when considering if your employee returning from maternity leave should have a “phased return” or change to their working pattern, don’t be fooled into thinking you legally have to comply with a “reasonable adjustment” because it doesn’t apply here. You do have an obligation to consider a request for flexible working.
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