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Written by Carolyne Wahlen

Your employees, however well you get on with them, are there to earn money.

Never forget this.

So many small business owners make the mistake of treating employees like family or buddies.

This is all well and good when things are going smoothly.

But what happens when a downturn in business means you have to make someone redundant?

I’ve seen it, and they react especially badly. They turn up to work to pay the bills.

When that has gone, any friendship you built is immediately in jeopardy.

They may instead feel moved to sue, and the business could fold. It happens; don’t assume you’re immune to it.

And this week, we had an added refinement on this theme:

Don’t assume they appreciate the same things you do.
[Read more…]

Filed Under: Grievance, Managing Employees, Redundancy Texts

Pick a protected characteristic, any one…

Written by Carolyne Wahlen

One of the golf clubs we look after received a grievance letter from a staff member recently.

It started off with the claim that he was being “harassed, bullied and victimised” under the Equality Act 2010 (Which is always fun!).

Wow, all of those things at the same time?!

But the most telling part of it is that he did not state WHICH protected characteristic he was being persecuted for.

[Read more…]

Filed Under: Discrimination, Grievance

Saving a drowning dog

Written by Carolyne Wahlen

My dog Comet almost drowned last week.

And while it was less dramatic than it sounds, it was still awful.

We were walking along the towpath when we bumped into an old friend.

I stopped to chat, but Comet didn’t fancy a chinwag, commencing his normal bouncing and barking that makes it clear that he doesn’t appreciate the delay.

Bouncing and barking that was followed very quickly by a splash as he fell into the cold, fast-flowing water.

If he could swim, it would have been funny.

But he’s a paddling specialist, so it really wasn’t.

[Read more…]

Filed Under: gross misconduct, Managing Employees

What rights do zero hours or casual workers have?

Written by Carolyne Wahlen

zero-hours worker
A zero hours worker or casual worker is an employee that works for you, who does not have fixed hours in the working week. As far as you, the business owner is concerned, they act like a tap that you can bring in whenever you need the extra help during the week.

5 Quick facts you should know about zero hours or casual workers:

  1. They must have a contract to count as a zero hours or casual worker
  2. They are entitled to as much notice as any other worker
  3. They are entitled to the same amount of holiday pay as any other worker
  4. They are protected against unfair dismissal – and have all the same employment law rights as all other employees
  5. They are entitled to the same amount of sick pay as all other workers

NB. The exact amount each zero hours or casual worker is owed should be specified in their contract – and if not, then they are entitled to the statutory minimum.

 

What constitutes a zero hours worker?

Unsurprisingly, just like with all other employees, there is a formal process you must follow whilst employing a zero hours worker. They must have a contract when working for you, and if not – then they don’t count as a zero-hours worker. If they have no contract, then they are a part-time worker, not a zero hours worker. You must have the correct wording in your contract for it to count as a zero hours worker contract. It is not enough to state that they have variable hours.

You need to state

  • That you do not guarantee to give them any minimum number of hours every week.
  • That they have the right to refuse work without penalty

You are also not allowed to restrict them working for someone else outside of their work for you. That clause needs to be removed from the zero hours contract for it to be valid.

Zero hours workers are workers, and under employment law, workers can have lesser statutory entitlements. However, most employers do not use zero hours as zero hours workers. They give them fairly regular hours, on the same days each week. Which makes them, through custom and practice, a part time worker. So to avoid yet another claim at tribunal, it is best to assume that they have the same entitlements as your other staff, on a pro rata basis according to the time they have worked.

 

What is the notice period for a zero hours worker?

As the employment term for a zero hours worker feels different to that of a full-time worker, most employers feel as though their notice period too should differ from that of a regular employee. Because zero hours workers have the exact same rights as any other employee, this is not the case.

A zero hours worker is entitled to the exact same amount of notice as any other employee. If a notice period is defined in their contract, then they will have as long is as written. If it isn’t in their contract, they are entitled to a statutory notice period:

Instant on both sides if they have been working for you for under one month.

One week for each completed year of service.

Do remember that this is also the notice period allowed for each employee. If you just have a verbal contract with your employee, statutory notice period is also applicable.

 

 

Can I just fire them?

No – you can never “just fire” any employee. As an employer, you have a duty to make sure that you follow a fair and legal process when dealing with any employee.

The easiest employees to dismiss are those under two years. If an employee has been working for you for under two years, then they are not protected from unfair dismissal. This doesn’t mean that they have no rights – but it does mean that if they don’t have any protected characteristics (age, race, gender, gender reassignment, pregnancy & maternity, marriage & civil partnership, disability, belief, sexual orientation) then you can dismiss them easily.

If they do have a protected characteristic, then you need to make sure that you jump through all the paperwork “hoops”. You can, for example, fire a pregnant zero hours worker. You will however need full documentation to prove that it is due to performance, and not due to the pregnancy that they are being dismissed.

We would always recommend checking about firing a zero hours worker with an HR professional, mainly because any employee can start a tribunal free of charge. And if they accuse you of discrimination, you will need to prove you are innocent. They will not have to prove you are guilty. The financial award if you lose a tribunal case for discrimination is unlimited (over £2 million in the 2022 case Macken v BNP Paribas).

If a zero hours worker has worked for you for over two years, then you have to follow the same processes as you would for a full time or part time worker. After the two-year mark, all zero hours workers are protected from unfair dismissal. This means that you have to follow a disciplinary process, a restructuring process or do a settlement agreement if you want to part company with them.

 

Do they need holiday pay?

Yes! All employees earn holiday pay. It is also important to remember that part time employees cannot be discriminated against, which means that you cannot give them less holiday (pro rata) than full time workers.

The reason for this is that the majority of zero hours workers (who are all deemed to be part time workers) are either female, carers, young or non-British workers. All of which are protected characteristics.

A full-time employee’s statutory minimum holiday entitlement in any year is 28 days which can include bank holidays.

The normal bank holiday entitlement is eight days a year.

A zero hours employee is entitled to a pro rata entitlement of the full time holiday, based on the number of hours they have worked in that week/month/year.

If, for example, they worked an average of 20 hours a week over the year, then they would be entitled to 14 days holiday in the year. Holiday is “paid time off”.

There is an advantage to zero hours workers though – you can pay out the holiday entitlement monthly without “losing” their normal working hours for you. They are simply deemed to be on holiday during the hours they are not working for you.

To calculate the holiday pay for zero hours workers, you have to calculate it using average hours worked over 52 weeks, rather than, as it was previously, 12 weeks or even worse, multiplying working hours by 12.07%.

Weeks are not included in the calculation if they are:

  • annual leave
  • sickness absence
  • nil earnings, or
  • statutory payments such as paternity pay.

If zero hours workers have been with you for longer than 52 weeks, but there are weeks with nil earnings, you are expected to go back up to a maximum of 104 weeks to find your 52 weeks of pay reference period.

For new zero hours employees who haven’t worked 52 weeks, you should base your holiday pay calculations on the number of pay weeks that are available.

Collect the data on a weekly basis and make sure you are recording all overtime worked (it also must be included in this calculation).

 

 

    The ACAS website contains useful information about zero hours and casual workers: view it here.

     

    Still unsure about zero-hours workers? Fill out the contact form below if you have any questions:

    Ask a Question

    • If you are an employee and feel that you have been treated badly, then we strongly advise you to contact ACAS:

      Call the ACAS Helpline on 0300 123 1100 for free support and advice.

      Simply get in touch and they'll provide you with clear and confidential guidance about any kind of dispute or query that you have about relationship issues within the workplace.

      You may want to know about employment rights and rules, best practice or you may need advice about a dispute.

      Whatever it is, just give ACAS a call, their team are on hand to respond within the hours: Monday-Friday, 8am-8pm and Saturday, 9am-1pm.

    • This field is for validation purposes and should be left unchanged.

    Filed Under: Contracts of Employment, Managing Employees, Top Post, Zero hours

    Sick leave & social media

    Written by Carolyne Wahlen

    What can I do if I have an employee who is currently on sick leave from work, but they have been posting images of themselves going out on social media?

    Managing sickness absence is rarely a straightforward task and dealing with someone that you suspect is not genuinely ill has always been at the trickier end of the scale.

    The situation is not helped by the fact that employees who are off work on sickness absence don’t have to hole themselves up in their home and not go outside. While it is frustrating, it is important to move with caution and not make any knee-jerk decisions regarding how you will deal with the issue upon their return to work.

    What is the reason that the employee is off sick and the nature of the work that they perform for you? Some illnesses which make someone unfit for work will not mean that the employee cannot continue as normal in other parts of their life.

    If an employee tells you that they cannot come into work because they have broken their ankle, and then you see them on Facebook dancing on both feet without crutches in a night club, you will probably be right in doubting the truth of their sickness.

    The same goes for an employee who claims they have a contagious illness. You would assume that they therefore cannot be in the presence of other people, but are then seen on Instagram hugging people at a party!

    In both cases you need to follow your disciplinary procedures. Falsifying sickness absence is theft (they are being paid sick pay when they aren’t sick) as well as lying, and should be handled as misconduct, potentially gross misconduct.

    [Read more…]

    Filed Under: Disciplinaries

    Push button, avert disaster

    Written by Carolyne Wahlen

    One of our clients averted disaster recently, with just one push of a button.

    They’d received a grievance letter from an employee about one of their colleagues making rude and nasty comments about them.

    We held the grievance meeting, and the employee gave plenty of detail, and provided witnesses, making it a pretty cut and dried case.

    So, we then invited the colleague in for a disciplinary meeting.

    She came alone (no companion), and sat down with us, the business owner and his PA.

    We briefed the client on what to say and he seemed to understand it – from our perspective, the meeting went exactly as it needed to.

    Which is why we were rather surprised to learn that the subject of the disciplinary (the employee accused of being rude and nasty) raised her own grievance, claiming that he’d started shouting at her during the meeting, and bullying her because she was female, older and “wanted to get rid” of her.

    Red flag – the mention of age and sex immediately made us worry as a discrimination claim can mean an unlimited award at tribunal against the employer.  [Read more…]

    Filed Under: Discrimination, Grievance

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    About Carolyne

    Carolyne has run a successful business since 2003, is a well-respected speaker, and author of all things HR. There are many, many business owners across the country who have had their very stressful employee issues magically disappear because they’ve teamed up with Carolyne and Gap HR.

    Why Gap HR?

    We exist to help you stay legal, compliant and profitable, without shelling out for an in-house HR manager. Over 180 clients benefit from the experience and expertise of the Gap HR team.

     

    Call us on 01491 598 600

    Email me on cw@gaphr.co.uk

     

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    Ask a Question

    • If you are an employee and feel that you have been treated badly, then we strongly advise you to contact ACAS:

      Call the ACAS Helpline on 0300 123 1100 for free support and advice.

      Simply get in touch and they'll provide you with clear and confidential guidance about any kind of dispute or query that you have about relationship issues within the workplace.

      You may want to know about employment rights and rules, best practice or you may need advice about a dispute.

      Whatever it is, just give ACAS a call, their team are on hand to respond within the hours: Monday-Friday, 8am-8pm and Saturday, 9am-1pm.

    • This field is for validation purposes and should be left unchanged.

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    “We have been using Gap HR for several years now. Carolyne and her team are professional and efficient and we would not hesitate in recommending them for small businesses. It is a great relief to know we are supported by them for our HR advice and paperwork is kept up to date.”

    Deb Green, Vermatech Pest Control

    “I have been working with Carolyne and her team for 6 years now , when I first purchased 2Excel Logistics I found the HR scary as I wanted to do the right thing for my staff , with Gap HR on my side this all seemed easy and we have gone from 9 staff to 28 with no hassle what so ever , thank you to all at Gap HR”

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    “We are a growing company but do not have facilities in house yet for HR services in house. Gap HR is our go to service for all kinds of advice about HR for our business and we have found them very reliable, communicative and efficient. Would definitely recommend them”

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    “Carolyne and team continue to provide great support to our business, with quick and accurate responses to help with our various HR needs.”

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