MYTH BUSTER: “Agency workers become your employee after 12 months.”

Well actually, they don’t – providing the Employer takes care to avoid a few pitfalls – read on!

Most (but not all) Agency Workers do not have a contract of employment with any of the Agencies they work with. As such they are not generally entitled to some of the employment rights that employees enjoy, such as unfair dismissal, paid maternity leave and redundancy payments. So, when a business hires in an Agency worker the person is not an employee – of either the hirer or the Agency.

Since October 2011, Agency workers rights have improved quite a bit thanks to Regulations. After 12 weeks working on an assignment with the same hirer, an Agency worker now becomes entitled to the same basic terms of employment as the employees they are working alongside doing similar work. Put simply, this means that their basic pay, hours, breaks and holiday entitlement have to at least match those of the employees of the hiring Company. It is the duty of the Agency to ensure that this is complied with.

These new rights do not automatically convert the Agency Worker into an employee, even after a certain period of time with the hirer. What can happen however is that a contract of employment becomes “implied” through custom and practice, This can happen where the Employer treats the Agency worker as one of its own staff for long enough for the relationship to develop into an implied employment contract.

This is almost a natural consequence of the relationship continuing for any length of time; the worker feels more and more like one of the team.

It is important for Employers to remain aware that an Agency Worker is not their Employee and they should not share in some of the benefits that only go to employees, such as offering discounted products or travel allowances for example. Employers are also advised not to use Company procedures such as the formal disciplinary or performance management policies when dealing with Agency Workers; these are written for “employees”, so do not use them with an Agency worker.

Another example. One client is a major motor manufacturer. They hold daily team meetings about production, and Agency workers take part in these. However, once a month, senior management travel to the UK from the Parent business to talk about how the business is performing. This meeting is identified as being for employees only, so Agency staff do not participate.

This is the right approach to take, as it avoids the Agency workers starting to feel employed by the Business!

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk

 

In confidence…… Promise you won’t tell anyone!

Technology has dramatically changed the way we work in recent years; no more so than in the use of mobile devices. Where would we be without our mobile phones and tablets! They have become such an integral part of everyday life, with employees habitually working on the daily commute. Some see this as just an extension of the working day; others see it as a real benefit to enable them to make more efficient use of travel time.

Whatever your opinion….. there are risks for those of us who work on the move!

Inherent in all this there is a danger that we almost forget where we are and what we are saying. Or is that just me?? The railway carriage is just an extension of the office after all. As an employment specialist I guess I am more tuned in to this type of conversation perhaps, but it is not unusual for me to hear fairly sensitive information being discussed in an open train compartment. I have been sitting adjacent to individuals as quite open comments were being made about someone’s poor performance or discussion took place about a recruitment decision – often over a mobile phone. Most often it is just an innocent whinge about the boss!

On some occasions those involved are wearing company clothing or have a prominent ID badge, so it is not hard to identify the Employer. Therein lies a problem.

A real case. A forensic scientist working with mental health patients at BroadmoorHospital has been suspended from work on grounds of possible gross misconduct. The alleged offences stem from breaching patient confidentiality. A member of the public complained to the NHS Trust that the Consultant had discussed her work in such a way that her place of work, as well as individual patients could be identified. All of this occurred whilst travelling on a train.

Further investigation by the Trust has identified that the Consultant would also dictate notes to secretarial staff whilst on the train; again these dictated reports contained sensitive patient information. This could result in dismissal, although a final decision has not yet been made.

There is a real danger that we become complacent about making and taking calls, and using other mobile devices such as digital recorders, when we are in public places. It is important to remind staff about these issues and, for some Employers, to take their duties under the Data Protection Act more seriously.

In recent years the Information Commissioner has grown bigger teeth. Employers can now be hit by substantial fines, up to £500,000 in fact. A Local Authority has recently been fined £80,000 over the loss of a memory stick which contained sensitive information about special needs school children. The information on the device was not protected or encrypted.

They say “Walls have ears”; but clearly fellow passengers on public transport have them too!!

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk

The Affect the Weather can have on Disrupting your Business

Worst Storm Surge Hits Britain for 60 years !

The snow in the spring and the recent storms bring into sharp focus the affect the weather can have on disrupting your business.

What things should you consider in relation to your employees?

Here are some key points to remember

Employees are not automatically entitled to pay if unable to get to work because of bad weather
There is no legal right for staff to be paid by an employer for travel delays (unless the travel itself is constituted as working time or in some situations where the employer provides the transport). However, employers may have contractual, collective or custom and practice arrangements in place for this.

Discretionary payment for travel disruption might also be of use. Some organisations offer discretionary payments for travel disruption or have their own informal arrangements for this purpose. Such arrangements are normally contained in staff contracts or handbooks or through collective agreements.

Be flexible where possible
A more flexible approach to matters such as working hours and location may be effective if possible. The handling of bad weather and travel disruption can be an opportunity for an employer to enhance staff morale and productivity by the way it is handled – for example is there opportunity to work from home. Think about other issues such as alternative working patterns or who can cover at short notice.

Use information technology
Information technology could be useful in enabling a business to run effectively if many employees are absent from work, for example using laptops or smartphones.

Deal with issues fairly
Even if businesses are damaged by the effects of absent workers they should still ensure that any measures they take are carried out according to proper and fair procedure. This will help maintain good, fair and consistent employment relations and help prevent complaints to employment tribunals. Inform employees in advance of the approach that will be taken in bad weather strikes so there are no surprises.

Plan ahead
Consider reviewing your policy and thinking about how you handle future scenarios. It would be best to put an “adverse weather” or ‘journey into work’ policy into place that deals with the steps employees are required to take to try to get into work on time and how the business will continue if they cannot.

You need to decide how to deal with lateness and what will happen with regard to pay. Having such a policy should mean, there is much less scope for confusion and disagreement.

Need some more advice?

To find out how Employment Law Training Limited can help, get in touch:

Derek Eccleston MA FCIPD
01789 470700
derek@eltraining.co.uk
www.eltraining.co.uk