Askews. Ask HR

ASK HR HR and Employment Law Assistance Every small business owner faces challenges. The added burden of HR can be daunting and time consuming. It can also be expensive if you get it wrong.

Our Employment Department has been named in the Legal 500 for a number of years.

We believe in the personal approach and like to find out about you and your business and the workforce issues you face, in order that we can tailor your employment contracts and staff handbook accordingly. You get to know each of our team and we get to know yours.

We can help you to comply with your legal obligations as an employer and guide you on best practice in order to protect you and your business. You can be certain that you will have the answers to the issues that arise in your business.

ASK HR Scheme includes: + HR Portal – (electronic personnel files) + Bespoke Contracts of Employment for each employee + Comprehensive Staff Handbook tailored to your business + Advice from qualified Solicitors available 365 days per year + Precedent letters / documents + Employment law updates and topical articles + Rates and limits table + GDPR compliant + Monthly payment plan

Solicitors Advice: All advice and communications between us are Legally professionally privileged.

HR Genie: Our HR software is GDPR compliant and a valuable time saving tool for businesses of all sizes.

Employers beware! Advice from HR Consultants is not legally privileged Privilege entitles a party to withhold evidence from production to a third party or the court.

Such evidence may be either written or oral.

The purpose of legal privilege is to enable a client to place unrestricted confidence in their Solicitor.

Types of Privilege Privilege cannot be claimed unless the evidence in question is confidential.

There are two types of legal privilege: + Legal advice privilege + Litigation privilege Legal advice privilege protects confidential communications between Solicitors and their clients made for the purpose of seeking or giving legal advice. It can apply whether or not litigation is pending or contemplated.

Litigation privilege protects confidential communications between Solicitors and their clients, or the Solicitor or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation. Litigation privilege can only apply when litigation is pending or contemplated.

Litigation privilege applies to proceedings in the courts as well as the employment tribunals.

Human Resources Consultants and other Non-Legal Members While HR consultants have become a popular means of obtaining employment advice in recent years, communications between a company and an HR consultant are not protected by legal advice privilege.

In Carron v Fastcom, the employee Mr Carron brought a claim for unfair dismissal against his former employer Fastcom Broadband Limited.

Prior to Mr Carron’s dismissal, Fastcom took legal advice from HR consultants Peninsula Business Services (Ireland) Limited in relation to a grievance raised by Mr Carron. The EAT determined that Peninsula was primarily a consultant and advisor to the employer which, although involving some advice on legal issues, did not classify Peninsula as a lawyer and thereby enable it to benefit from legal advice privilege.

What does this mean for you?

Given that legal advice privilege does not attach to advice given to Employers by non-lawyers such as Peninsula or HR consultants, such advice, whether given in connection with disciplinary action, a dismissal or a grievance is therefore fully disclosable to an employee who submits a data access request to their employer. In these sort of situations, prudent employers often obtain sensitive advice at the outset, long before any claim or litigation is contemplated and it is disconcerting for an employer to know that such advice may find itself in the hands of an aggrieved employee.

HR Genie HR Genie is a portal built upon an employee database and stores everything associated with your employees.

At the touch of a button you will be able to access your employees’ employment contract, holiday and absence record, remuneration details, work pattern, appraisals, training and performance reviews and their timesheets and expenses.

Staff Handbook HR Genie allows you to save your staff handbook and other documentation in a shared area to enable easy and quick access. You can also store your company vision, mission and values here.

Holiday and Absence Management HR Genie is designed to show you where your staff are at all times. You will be able to see who is off sick, who is on holiday and who is working from home on any given day of the week.

Reminders and Warnings HR Genie reminds you of key dates such as birthdays, end of probation periods, end of the first two years’ employment, imminent work permit or qualification expiries. You will also get a notification if any member of staff is currently earning below National Minimum Wage which can easily happen when a younger member of staff has a birthday or there is a rate increase.

Appraisals Our online appraisal system manages the appraisal process for you. It reminds both the manager and the employee when the appraisal is due and then reminds them to complete the appraisal forms ahead of the scheduled appraisal date. You can customise the questions to suit your business.

Reports Our software offers one-click access and exporting of commonly used reports such as a Payroll report, absence report and Employee Snapshot report.

Health and Safety HR Genie stores details of all key Health and Safety role holders and sends warnings out if any of these role-holders are due to leave so the role can be replaced in a timely manner.

Time Tracking and Billing You can record the time you work on a project or activity by using the built in stopwatch feature and then allocate that time to a project or client or activity. This function is useful for businesses who use agency workers or locums.

Staff Expenses HR Genie lets your staff quickly and easily fill in an expense claim from their smartphone or computer.

They can easily upload receipts in support, and they can charge the expense to a project/client or code.

You can then approve or reject the expenses online and a record of the expense claim is filed away.

Mobile-ready to use on the go Our software is built to work well on mobile devices whether it’s a tablet or a smartphone, so you and your staff can use all of the software features when you are out and about.

TUPE - A guide for small businesses What is TUPE?

What happens to the employees?

The immediate answer that springs to mind is ‘a nightmare’, but in fact ‘TUPE’ stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006. The regulations are intended to safeguard employees’ rights on the transfer of a business.

The contracts of employment of those employees employed by the transferor and “assigned to the organised grouping of resources or employees that is subject to the relevant transfer” automatically transfer to the transferee on their existing terms.

TUPE introduced three basic concepts into UK employment law: + The automatic transfer principle whereby employees transfer to the ‘new’ business who inherits all rights, liabilities and obligations in relation to them. + Protection against dismissal in connection with a TUPE transfer. + The obligation to inform and consult with representatives of affected employees.

When does TUPE apply?

TUPE applies to organisations of all sizes where a business or part of a business (e.g. a particular function) moves to a new owner or merges with another business to make a brand new employer.

TUPE also applies where there is a service provision change, for example: +A contractor takes over activities from a business (known as outsourcing). +A new contractor takes over activities from another contractor (known as re-tendering). +A business takes over activities from a contractor bringing the work back in-house (known as in sourcing).

Obligation to inform and consult Both the transferor (outgoing employer) and the transferee (incoming employer) must inform and if appropriate consult with recognised trade unions or elected employee representatives (if there is no recognised union) in relation to any of their own employees who may be affected by the transfer or any measures taken in connection with it.

Employers with fewer than 10 employees may consult with the employees directly. Certain information must be provided under the regulations. Although there will be a duty to inform on every TUPE transfer, the duty to consult only arises where an employer envisages taking measures in respect of affected employees.

Employees who object to the transfer do not become employees of the transferee, their contracts of employment terminate by operation of law and there is no dismissal.

What happens to the employees’ terms and conditions of employment?

The transferee takes on the transferring employees on their existing terms of employment and can only make changes to their terms in limited circumstances. Changes to terms of employment will be void if the sole or principal reason for the change is the transfer itself, unless either: + The reason for the variation is an economic, technical or organisational reason entailing changes in the workforce (“ETO reason”). + The reason for the variation is the transfer, but the terms of the contract permit the employer to make such a variation.

Terminating Employment TUPE provides enhanced protection against dismissal over and above general unfair dismissal law for employees with 2 years’ service. Dismissals will be automatically unfair if the sole or principal reason for the dismissal is the transfer itself, unless there is an ETO reason whereby the dismissal would be subject to the usual principles of fairness.

Resignations in response to a repudiatory breach of contract or to substantial changes in working conditions to the employee’s material detriment are treated as deemed dismissals to which the enhanced protection against dismissal applies.

Penalties A failure to comply with the obligation to inform and consult exposes the parties liable to pay compensation equivalent to up to 13 weeks’ uncapped pay per affected employee. This is in addition to any potential compensation where an employee is found to have been unfairly dismissed or has other employment related claims.

GDPR – A summary of your obligations as an employer General Data Protection Regulation (GDPR), governs data protection and privacy for all individuals within the European Union. GDPR aims to give control back to individuals over their personal data by introducing enhanced rights, greater transparency, more onerous standards for consent and tougher sanctions for non-compliance.

Under GDPR, employers must:

Employers may lawfully process employees’ personal data if it is necessary for the performance of an employment contract, compliance with the employer’s legal obligations, to protect the employee’s vital interests, for carrying out public functions, or for the legitimate interests of the employer or any third party to whom the employer discloses the personal data (provided the employee’s fundamental rights and freedoms do not override those interests).

+F airly and lawfully collect and process personal data.

Employee Consent

+P rovide employees with information about the personal data they hold and how it is used. +O nly use personal data for the purposes for which they collect it, unless they take additional steps. +K eep employee personal data accurate, up-to-date, and retain it for no longer than is necessary.

Many employers justify processing personal data on the basis of employee consent, by using standard provisions in employment contracts.

However, an employer must present the consent for data processing separately from any other matters and not bundle consent with acceptance of other terms and conditions. Such consent must be specific, informed, freely given and unambiguous.

+ Implement appropriate security measures.

For most work-related employee personal data processing, consent cannot and should not be the lawful basis for processing due to the imbalance of power between the employer and the employee.

Consent must be demonstrable.

+P rovide employees with rights to access, correct, and erase their personal data.

Data Breaches

+D elete or anonymise personal data once they fulfil the purpose for collection or meet applicable legal obligations.

+E nsure compliance with cross-border transfer restrictions for transfers of personal data to countries outside the EEA that do not ensure an adequate level of data protection. +B e able to demonstrate compliance with these principles.

Processing Human Resources Data Processing personal data under the GDPR means carrying out any operation on personal data including collecting, recording, organising, storing, using, disclosing or disseminating. Employers may need to process employees’ personal data for certain human resources purposes, such as recruitment, performance of an employment contract, management, planning and organization of work, equality and diversity in the workplace, health and safety etc.

The GDPR imposes a new mandatory breach reporting requirement. Where there has been a data breach (such as an accidental or unlawful loss, or disclosure of personal data), the employer will have to notify and provide certain information to the data protection authority within 72 hours.

Where the breach poses a high risk to the rights and freedoms of the individuals, those individuals will also have to be notified.

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