Christmas bonuses: key things to remember

With Christmas almost upon us, organisations may wonder if they are under a duty to pay out a bonus to staff.

The issue of pay is typically a sensitive topic in the workplace and this tends to be the case even more around the notoriously expensive Christmas period. Christmas bonuses can be a successful strategy to improve employee engagement, keep morale high or even attract the most talented applicants for a particular position. As giving employees a bonus can be a great way to reward them for their work over the past year, this frequent practice can turn into a tradition which the workforce comes to expect.  That said, the size of an organisation or current profit levels may make paying a bonus difficult for some.

The first thing an organisation should establish is whether they are under any duty to provide such a bonus. Fundamentally, there is no statutory requirement to pay staff a bonus at any time. However, if bonuses are a contractual benefit included in the terms and conditions of employment or in the employee handbook, then employees will have an expectation of the payments and management are under a legal obligation to pay it. Non-payment in this situation could result in a claim for breach of contract.

Much will depend upon the wording of the contract. Many organisations choose to include a clause which reserves the right to withhold any bonus if they see fit. This will help to prevent it being considered ‘mandatory’. Nonetheless, they should still be cautious. If they have paid a Christmas bonus to all their staff for a number of years without any changes or interruptions, adjustment of the practice can give employees a ground to make a claim. In an event such as that, an employee can claim that the annual payment has transformed into a custom or tradition through the consistent conduct of the organisation.

It is advisable for all bonuses to be marked as discretionary within contracts and the employee handbook. As an extra precaution against potential claims, employees should be given advanced notice as to whether the criteria is going to be met for them to claim their bonus. For example, if it was a condition to hit a pre-determined sales level and this has not happened, then it need not be paid. By providing advanced notice, this can also serve as an incentive to staff to improve upon their current productivity levels.

It is always important that, even if a bonus is to be paid, it is fairly calculated. Organisations should have a fair and reasonable criteria to refer to in order to calculate the allowance for each employee. Remember if a staff member feels they have not received as much due to a protected characteristic, they may pursue potentially costly discrimination claims.

Study shows lack of employee awareness in mental health support initiatives

Research by insurance company Towergate Health and Protection demonstrates that although organisations are increasingly offering mental health support, only a small number of employees actually use them.

Mental health at work remains a significant issue for the modern day organisations, with increasing numbers recognising the impact that it can have on the wellbeing of their staff. Although more organisations are now taking steps to tackle this, such as introducing an Employee Assistance Programme (EAP), these latest figures suggest that there may be still more work that needs to be done to raise awareness of these options.

Figures from this study show that 76 per cent of organisations are now offering access to initiatives such as an EAP in order to assist employees with mental health issues. However, just 10 per cent of HR professionals asked felt that staff actually valued these options, with only 5 per cent believing that their EAP was actually used. When asked why take-up had been so low, 15 per cent outlined that it was communication that was the issue; staff remained unaware of the options open to them.

Distribution director for Towergate Health & Protection, Brett Hill, calls for ‘communication to take centre stage’ if organisations ‘want their work in supporting mental wellbeing to really make a difference’. He goes on to state that support is available, urging organisations to make ‘the most of’ external advisors who can assist them.

Managers and inductions should encourage employees to come forward with any issues they may be having, whilst leaflets and cards should be distributed regularly to remind employees of the options open to them. Additionally, the organisation could hold regular employee surveys to ascertain if employees are aware of the support on offer and evaluate if it could do more to improve awareness.

Whilst certain mental health initiatives such as an EAP may not be possible for all organisations, they should bear in mind that, by taking clear steps to support individuals suffering from poor mental health, they can experience real benefits. For example, if staff feel supported in this issue, they are more likely to remain in their roles, take less time off sick and maintain their productivity. Publicly demonstrating a commitment to mental health can also be highly attractive to external candidates, potentially attracting skilled individuals to the organisation that may not have come before.

Two in five employees admit to ‘pulling a sickie’

Survey brings into question how much organisations can trust claims of sickness at work.

A Com Res study has revealed that 40 per cent of workers would fabricate an illness if they needed a day off, which may cause organisations to think twice next time they have an employee who claims to be too ill to make it to work.

The same study also revealed that 66 per cent of employees would not inform their organisation if they became aware that a colleague was faking a bout of sickness, making it much harder for managers to establish whether absent staff are telling the truth or not.

Separate studies show that UK employees take an average of 6.9 sick days’ each year, and although organisations will naturally want to ensure staff are being honest when phoning in sick to work, there is often no way of knowing how many of these are genuine

Whilst it is hard to control employees’ actions, having a clear policy on sickness, which details how employees are required to notify the organisation, may prove beneficial. Conducting routine return to work interviews will also show that bouts of sickness are treated seriously, whilst employees may be less likely to take a ‘sickie’ if it means having to lie about their condition directly to their manager upon their return.

Organisations are also more likely to be suspicious of individuals who take frequent short-term sickness absences, especially if these appear to be ‘scheduled’ on purpose so they are able to take advantage of a long weekend.

Although it would be inappropriate to jump straight to a disciplinary without clear evidence, a well-structured policy will allow organisations to take disciplinary action where the level of absence reaches an agreed upon trigger point. In these circumstances, warnings may be issued and the employee may be placed on an improvement plan.

Having said this, it is important to remember that a disability or other underlying conditions can result in short term absences. Therefore, organisations must make reasonable adjustments where necessary, which could include amending any absence ‘trigger points’ to accommodate for disabled staff.

Organisations who fear they have an issue with staff ‘pulling sickies’ at work may also want to look at any workplace factors that may be contributing to this. Fostering an open and honest working environment is likely to encourage staff to report any issues in the first place, and organisations should respond to any complaints of bullying or harassment without hesitation, as these can make staff hesitant to attend work.

Black Friday – Are you ready?

The day after Thanksgiving, Black Friday, is a major retail sale event that will take place in the UK this year on 29 November. Along with Cyber Monday on 2 December, these days promise significant price reductions for consumers and may cause disruptions at work as staff try to find ways to secure the best deals during working time.

Figures from America reveal the impact shopping discounts on these days have in the workplace. Estimates suggest Black Friday will cost US businesses $10 billion in lost productivity whilst 78 per cent of American Amazon Prime customers have admitted plans to shop deals at work.

Despite originating in America, these days continue to attract increased attention in the UK in recent years, creating greater issues for employers in terms of misconduct and lost productivity as more staff look to find ways to make purchases online.

Remind staff of the rules

Sending a memo to all employees beforehand is an easy way of reminding them about the rules on using mobile phones at work. Most organisations will have a mobile phone use policy so the memo can outline the rules contained in this, such as keeping phones out of sight during working hours.

Although staff are more likely to use their mobile phones to shop the sales, they may be tempted to use their work internet access or work emails to view Black Friday offers. To avoid this, organisations should also consider outlining their stance on using work equipment for personal matters. Again, if a policy is in place, this can be highlighted.

Monitor behaviour

Line managers should be instructed to keep an eye on staff during this period to ensure they are complying with any workplace policies. A brief word may be enough to discourage anyone caught trying to make the most of the sales during working time and managers should be fair and reasonable with their application.

Organisations who wish to use more intrusive monitoring procedures, such as CCTV recording or internet browser analysis, should inform staff this will take place in advance and ensure they do not breach data protection law.

Take action

Organisations who subsequently discover employees have broken the rules by accessing sale sites during working time may take action for this under their disciplinary policy. If an informal conversation is deemed insufficient, then a formal warning can be provided. This is more likely to be utilised if the employee has a history of similar misconduct.

Consider flexibility

Having said this, some organisations may consider taking a more flexible approach to Black Friday and Cyber Monday, especially considering many retailers offer time limited or flash deals; where goods are reduced for a certain period of time.

Therefore, to accommodate staff, organisations may agree to allow workers to take all, or part of, their breaks at a different time than normal to make the most of these time restricted offers. This agreement will allow workers to grab a bargain whilst ensuring no working time is lost.

Could secret Santa cause anxiety at work?

Leading psychologist suggests secret Santa spending limits could stop unnecessary anxiety. 

As Christmas approaches, many organisations are likely to be organising their own version of secret Santa, in which staff are encouraged to exchange presents anonymously between themselves. However, organisers have been encouraged to consider whether this practice is actually doing more harm than good.

Dr Ashley Weinberg, a psychology lecturer as the University of Salford, has explained that secret Santa has become an increasing source of anxiety for workers. She suggested that staff often fear that they will be judged negatively and considered ‘stingy’ by their colleagues for not spending an acceptable amount on these gifts.

These comments follow a recent survey from Jobsite, which found that 35 percent of employees would like to see secret Santa banned in their workplace. It was also revealed that 26 per cent typically give more than they can afford on presents for co-workers, whilst 17 per cent feel that they are judged based on how much they spend on gifts.

With this in mind, it may be wise for organisations to review their own approach to secret Santa and, as with any business practice, consider the impact this could have on staff.  Given the financial ramifications involved, participating in secret Santa could have a disproportionate impact on minimum wage employees, or those working in junior positions, who are typically paid less than their senior counterparts. To this end, it may also have a disproportionate impact on women given the well-documented gender pay gap.

Therefore, as suggested, it may be wise to set a clear monetary limit on gifts for secret Santa to ensure staff are not excluded from taking part. Many organisations typically agree to a limit of £5 or £10 in order to remove any excessive financial burden and make it more accessible for staff. This measure may also help to reduce any feelings of anxiety around the gift giving process.

Having said this, individuals should still not feel pressured into taking part; after all the idea behind secret Santa is to have fun and promote a festive spirit in the workplace. Also, given that Christmas is traditionally a Christian holiday, organisations should bear in mind that staff with certain religious beliefs may not feel comfortable taking part and it is vital to avoid creating an intimidating or hostile environment for them.

There is also always a danger with gift giving at work that certain individuals may use this as a vehicle to bully or harass colleagues. Therefore, it will be important to have rules in place that forbid any potentially offensive or discriminatory gifts and anyone found to have ignored these requirements should face relevant disciplinary action.

What to think about when planning the Christmas party

Christmas is just around the corner and many organisations will likely be planning the annual Christmas party. However, they may not be thinking about the dangers of employee misconduct.

Christmas parties may seem like the ideal opportunity for organisations to allow their staff to let their hair down and dance the night away with their colleagues. That said, alcohol consumption, coupled with a relaxed social atmosphere, can foster situations which may not occur in the every-day office. Although such social gatherings are fundamentally a social and fun occasion they are also, as official company-organised events, an extension of the working environment.

Legally, organisations have a duty to protect the health, safety and welfare of their employees. By extension, they can be liable for actions committed by employees in the course of their employment if they cannot demonstrate they took ‘reasonable steps’ to prevent it. This includes forms of misconduct at company-organised events. In other words, if employees behave in an inappropriate, aggressive or dangerous manner whilst at the party, the organisation may be responsible for their actions.

Organisations can also be liable for misconduct that takes place within ‘after party drinks’. Although these are technically not officially organised by the company, liability can still arise if it can be established that the employee’s conduct was sufficiently connected to their position. An example of this was seen in the recent case of Bellman v Northampton Recruitment Limited, where a manager had punched one of his employees in the face after they, along with some colleagues, had gone for further drinks at a local hotel when the Christmas party concluded. The Court of Appeal found that the company was liable for the actions of the manager as, although this occurred in an after party, all drinks and taxis had been paid for by the company and the manager was acting within his management capacity.

Whilst organisations will want staff to have fun on the night, provisions should be in place to ensure behaviour doesn’t get out of hand. To this end, it is highly advisable to implement a policy which addresses office parties and work-related social events, outlining that staff have a duty to behave responsibly at all times. It is also advisable to issue individuals with a reminder that the organisation’s rules on acceptable behaviour will still apply at the event and that incidents of misconduct will be treated seriously. If an employee claims they have harassed by a colleague, swift action should be taken to deal with it in line with policy.

Living wage, Minimum Wage information

The Living Wage Foundation – latest updates

The Living Wage Foundation has outlined that rates have increased to £10.75 for workers based in London, and £9.30 for those in the rest of the UK.

Reviewed each year by the Living Wage Foundation, the voluntary Living Wage is based on the ‘real’ cost of living as is set by the Foundation, which is calculated by basing averages on a ‘basket of household goods and services’. Its purpose is to provide workers with higher minimum wage rates than what is currently facilitated by the government. As a voluntary scheme, organisations can choose to opt-in to paying the higher minimum wages but, once they have done so, must ensure worker salaries to fall into line with the rates as set by the Foundation.

These increases are as follows:

  • London Living Wage – increases by 1.8 per cent from £10.55 to £10.75 per hour
  • UK Living Wage – increases by 3.3 per cent from £9.00 to £9.30 per hour.

Going forward, all organisations who provide the ‘real’ Living Wage will now have until 1 May 2020 to implement these changes, although they are encouraged to do so as soon as possible. As of 2019, over 6,000 UK businesses have signed up to the scheme, which has resulted in a pay rise for in excess of 180,000 employees. This includes around one third of the FTSE 100, alongside recognisable, high-profile operators such as IKEA, ITV and Everton.

Although voluntary, providing the ‘real’ Living Wage can be an effective measure of both attracting employees to an organisation and retaining them. With Brexit uncertainty continuing to dominate the headlines, organisations may wish to consider introducing new measures that can assist them in finding the individuals they need to in order to ensure continued company development and progression.

The ‘real’ Living Wage is not to be confused with the National Living Wage (NLW). The NLW was introduced by the government in April 2016 and is the statutory minimum hourly rate that should be paid to all workers aged 25 and over. As the previously expected autumn budget has now been delayed due to the upcoming General Election, we still are unaware of what the new statutory rates will be come April 2020.

That said, organisations should make sure they are up to date with these developments. Those who do not pass on the increases to statutory rates will be operating in breach of the law. This could result in penalty fines of up to 200 per cent of the underpayment, which can be up to a maximum of £20,000 per worker.

New Legislation To Require Organisations To Provide Basic References

New legislation could require organisations to provide a basic reference for all former employees.

The UK government has confirmed their intention to consult on forcing organisations to comply with requests to provide a basic reference to former staff.
Coming as part of their response to recommendations made by the Women and Equalities Select Committee regarding the misuse of non-disclosure agreements at work, the government accepted that the threat of withholding a reference could work to silence victims of sex or other forms of discrimination.
Business secretary Andrea Leadsom announced that the proposals would ‘ensure individuals are protected, striking a fair balance between the interests of employers and workers’.
Although there was no detail on what information would be required in a mandatory reference would, suggestions for basic references have included confirmation of an individual’s employment, as well as their start and finish date.
If anything, this proposed change could help to clarify the existing legal position around employee references as this can often be a source of confusion. In the meantime, organisations should keep in mind that there is currently no statutory requirement for them to provide a reference for a former employee, unless this is a contractual obligation or they operate in certain regulated sectors.
However, it is relatively unusual for an organisation to refuse requests to provide a reference and doing so to punish an employee for involvement in harassment claims, or whistleblowing, will be unlawful. Any inconsistency in giving references is also likely to increase the chances of employees feeling that they have been discriminated against.
Those who agree to provide a reference also have a duty of care to ensure the information given is accurate and fair. Organisations can be sued for defamation, or malicious falsehood, for providing unfavourable statements which are untrue, if the person giving the reference either knew it was untrue or was recklessly indifferent as to whether it was true.
As a result, it is becoming more and more common for employers to have a policy only to provide bare references, giving dates of employment, position held and sometimes salary. For assistance in writing a reference of this kind, please see our template letter for providing a reference to a former employee.

Brexit Delay HR

Brexit Delayed Once More – What To Bear In Mind Moving Forward

With Brexit delayed once more, we take a look at the implications of this latest development and what organisations will need to bear in mind going forward.

Many organisations will no doubt have been struggling to keep up with Brexit as it has unfolded over the last few months, but it seems that we now finally have a little bit more certainty. As of 28 October, the EU have agreed in principle to extend the deadline for which the UK is set to leave the EU until 31 January 2021. This new date is therefore the end of a further period of time within which the UK can aim to put forward, and have accepted into law, a Brexit deal.

Under the provisions of the Benn Act, the Prime Minister will have to accept this extension offer from the EU. Fundamentally, this delay has all but confirmed that a Halloween no-deal scenario is off the table, something that will likely cause a great number of organisations to breathe a sigh of relief. That said, although it seems we do have a temporary reprieve from the no-deal shadow, it would be wise not to get too complacent. As the UK once again enters into negotiations with the EU, a no-deal situation could still be very much a possibility going forward.

A 31 October no-deal would have meant that EU nationals needed to be in the country by 11am on 31 October in order to apply for ‘settled status’ under the EU Settlement Scheme. Now, this deadline will need to be extended as we wait for a new Brexit date to be confirmed. In addition to this, any EU employees who arrived after this date would have needed to apply to obtain Temporary Leave to Remain, with no guarantee that they would be able to stay in the UK once the new immigration system was introduced in January 2021. Now, organisations can be assured that they can continue to take on new workers from the EU following 31 October, until a new Brexit date is set, without this issue potentially arising down the line for those specific individuals.