“What employment law changes are proposed to parental rights and flexible working?”

The Department for Employment and Learning (DEL) has recently launched a consultation entitled “Sharing Parental Rights, Extending Flexibility At Work”. Significant changes are proposed to the law regarding maternity and paternity leave. In addition, it is proposed that the right to request flexible working will be opened up to all employees and not just those with caring responsibilities. These proposals, if implemented will affect all employers.

At present, mothers and adopters have the right to 52 weeks’ leave in the event of having a baby or adopting a child. Fathers or partners of mothers / adopters can avail of up to two weeks’ ordinary paternity leave. An eligible employee can also avail of additional paternity leave if the mother / adopter returns to work prior to the expiry of the maternity / adoption leave entitlement.

Under the new proposals parents will be able to decide how to share out their parental leave during the first year following the child’s birth or placement for adoption.  It is not proposed that parents will be required to set out their plans for the year from the outset. Rather, it is proposed that employees will be required to give their employer 8 weeks’ notice when requesting new blocks of leave or varying an existing request for leave.

In relation to the entitlement to request flexible working, this is currently limited to those with caring responsibilities. There is a prescribed statutory process that employers and employees must follow when an employee wishes to vary his or her working pattern. Under the new proposals, the right to request flexible working will be open to all employees. The good news for employers is that the strict time limits currently in force in the legislation will be replaced by a less prescriptive duty to deal with requests in a reasonable manner and within a reasonable period of time.

The Department is seeking responses to the proposals. I am hosting a discussion in Mallusk Enterprise Park on 23rd July from 9:30am to 11:30am to discuss the proposals in more detail. There will be a chance to hear more about the proposals and give your views on how the proposals are likely to affect your organisation. I then intend to submit a response to the consultation, having had the benefit of discussing the proposals with as wide a range of employers as possible. It would be great if you could join us. This event on 23rd July is free but places are limited and we do require bookings in advance. To reserve your place at this event or to find out more information, please email info@collectivebusiness.co.uk

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

“Are interns entitled to the National Minimum Wage?”

Internships can be a good way of providing valuable work experience and familiarisation with a particular industry or sector. They are common in the charity sector and are also used widely in business.

In assessing whether an intern is entitled to the National Minimum Wage (NMW), it is important to understand that, in law, there is no employment status of “intern”. In order to assess whether an intern is entitled to be paid at least NMW, the organisation must identify the intern’s employment status. If the intern is a “worker”, they ought normally to be paid at least NMW. If an intern has agreed to personally provide services to the organisation and the organisation gives the intern work to do and sets the hours of work, the presumption will be that the intern is a worker and is therefore entitled to NMW.

The law on the national minimum wage is complex and there are several exemptions which may apply depending upon the circumstances of each case. For instance, there will be no entitlement to NMW if the intern is:-

-          Work shadowing (as opposed to doing actual work themselves)

-          A student on a work experience  placement of less than one year as part of their course of study

-          Working for a charity in the capacity of “voluntary worker” and in receipt of no remuneration or other benefit other than out of pocket expenses

The “voluntary worker” exemption for charities referred to above is very narrow and readers should note that any payment to the individual over and above the reimbursement of out of pocket expenses is likely to mean that the voluntary worker exemption does not apply and the individual should be paid NMW. It should further be noted that if there is the prospect of a job at the end of the internship or the intern receives training beyond what is necessary to carry out the duties of the post, it is unlikely that the organisation will be able to successfully argue that the intern is a “voluntary worker” and in these circumstances, the intern ought normally to be paid NMW.

There are other exemptions to the general rule that workers ought to be paid at least NMW but the three listed above are among the most commonly occurring and it is not possible to go into detail regarding other exemptions in this short article. Advice should be sought in relation to each particular circumstance.

It is important to note that it is not possible to contract out of the entitlement to national minimum wage so even if someone agrees to work for less than NMW, it will still be illegal to pay less than NMW if the arrangement is such that NMW should be paid.

If an employer has failed to pay NMW when it was due, HM Revenue & Customs have the power to fine the organisation as well as order the employer to make up the shortfall between NMW and what was actually paid to the individual.

If your organisation is thinking of taking on an intern and paying an amount less than NMW, you should seek legal advice on the particular circumstances of your case before proceeding. Taking early advice and ensuring your arrangement is compliant with the law is extremely important, not just for the financial wellbeing of your organisation, but also for its reputation.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

“One of my employees has posted a negative comment about the company on their private Facebook page – what can I do?”

Social media can be a huge asset for a business but also a huge problem. Comments put up online can be read by large numbers of people in a very short space of time. It is therefore vitally important that an employer has a clear written policy on the use of social media by employees. This policy should relate to the use by employees of the organisation’s social media accounts and also to the employee’s personal social media accounts. Having a policy is not sufficient by itself. The employer should ensure that all employees have read and understand the policy.

It is important that a social media policy makes clear that it is unacceptable to make comments online that could negatively impact the reputation of the organisation. Employees should also be advised that offensive comments posted on social media about other people in the organisation are unacceptable and may amount to bullying. It is also important to specify that making negative comments about the organisation or people in it could lead to disciplinary action up to and including dismissal, depending upon the seriousness of the offence.

Employees often think that if their Facebook or Twitter profiles are “private” that this means that the employer cannot do anything about the comments they make online. It is important that employers explain to employees that the comments can still be read by the person’s “friends” or “followers” and so in that sense it is not private and any negative comments made by employees is potentially damaging to the reputation of the company in the eyes of the people who read them.

If an employer is concerned about something an employee has posted online, the employer should take steps to gather evidence, investigate the matter with the employee and, if necessary, take action in accordance with the organisation’s disciplinary procedure.

The severity of the disciplinary sanction that an employer can impose in each case will depend upon the nature of the comments and the actual adverse impact on the organisation and/or the people in it of the comment being posted.

The case law in this area is developing quickly. If an employee is dismissed for making adverse comments on social media, the Tribunal will have to decide if the decision to dismiss was within the “range of reasonable responses” open to the employer. It seems from recent Tribunal decisions that for employees with a clean disciplinary record the nature of the offence and the impact upon the organisation needs to be quite severe to justify dismissal for a first offence.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

“Do I have to advertise a job vacancy?”

This is a question we get asked a lot and we can understand why. Generally when we are asked this question, the employer will have someone in mind that would be well suited to the role. In these circumstances, the employer often wants to dispense with the time consuming process of a recruitment exercise and simply appoint the person who they believe will be suited to the role. The added benefit of this from the employer’s perspective is that the employer knows the applicant and believes they will fit well into the team and so there seems to be less risk that the appointment will not work out.

The short answer to the question is “no” as there is no law that says that a vacancy must be advertised. However, in spite of the apparent attraction of simply appointing someone that you know, there are reasons we believe it is good practice to advertise a vacancy to as wide a pool of candidates as possible. There are a variety of reasons for this, including:-

-          By advertising widely, you increase the chances of appointing the right person. There may be an outstanding candidate for the position who you don’t know about and if you don’t advertise, you will lose out on the opportunity to recruit this top talent

-          Failing to advertise may be indirectly discriminatory. For example a small employer who recruits through word of mouth may find that everyone in the organisation is a member of the same few families or a friend of these families. If all the family members and their friends are of a particular religious belief despite the workplace being in a “mixed” area, then this recruitment practice is likely to perpetuate the under-representation of people of a particular religious belief in the workplace and is likely to be indirectly discriminatory.

As no two organisations are the same, the issue of how the employer should go about the recruitment process will vary depending upon the circumstances. There are a variety of ways that recruitment processes can be carried out. Each organisation should have its own recruitment and selection procedure and review this when a vacancy arises.

One final point we always make when asked this question is that if the employer has someone in mind for the role, they should encourage that person to apply. If they are indeed the right person, this will be shown through the recruitment process, which will serve to confirm the employer’s view and will also give the comfort of knowing that the recruitment process complied with the law and best practice and gave the employer the best chance of recruiting the best person for the role.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact Collective Business Services.