Lawful Deductions From Pay

As the recession continues to bite and many employers feel the need to run a tight ship, care should be taken that deductions from employees' wages are made lawfully to avoid expensive tribunal claims. "Wages" are defined broadly and cover any sums payable to the worker in connection with employment, including any fee, bonus, commission, holiday pay or other payment referable to the worker's employment. A deduction from a worker's wages can only be made lawfully if: the deduction is required or authorised by law, and this includes tax, national insurance and attachment of earnings; the deduction is required or authorised by the worker's contract, for example a company car clause; or  the worker has given prior written consent to the deduction, such as a season ticket loan agreement or the purchase of childcare…

How To Discipline Employees Fairly

Some employers are reluctant to address problems with employees and put up with unacceptable conduct or substandard performance, sometimes for many years, until the employee resigns and solves the problem by default. However it is possible to deal with such matters fairly, without risking costly employment tribunal claims. You should first consider whether you need to take formal action under your disciplinary procedure and carry out a thorough and reasonable investigation. Before the disciplinary hearing, the employee must be informed in writing of the case against them, told what the possible consequences will be, given copies of any evidence so they can prepare and reminded of their right to be accompanied by a work colleague or trade union representative.  At the hearing, you should explain the allegations and go through the evidence. Following the hearing…

Tupe Pitfalls

Last month, Gillian Reid explained when the TUPE rules apply. This month, Gill highlights a couple of mistakes for employers to avoid in a TUPE situation. Changing terms of employment Any changes made by the new employer to terms of employment will be void, if the reason for the change is the transfer or a reason connected with it. This makes it very difficult to harmonise terms and conditions of employment. If changes are made to an employee's contract that are to his detriment, he can resign and claim constructive dismissal. Automatic unfair dismissal Any dismissal of an employee with the necessary qualifying period of service (which is one or two years, depending on when he started work), will be automatically unfair if the reason for the dismissal was the transfer or a reason connected…

Varying Terms Of Employment

Changing terms and conditions of employment is one way of reducing payroll costs without having to make staff redundant. But, as ever, it is important to follow the correct employment procedures and look out for a number of pitfalls. Examples of changes to terms of employment include: scaling back working hours reducing the number of days of work cutting pay by a percentage. You can vary a contract of employment in two ways. The first is if the contract of employment allows you to do so and the second is with the agreement of the employee. If your contracts do not include any of these terms, you will need to obtain agreement from your employees to the changes you wish to make. This can be done in three ways: You can seek…

Merger With Peter Lawrence

Law firms Ware & Kay, based in Peasholme Green, York, and P J Lawrence of Slingsby, have merged. Peter Kay, the senior partner of Ware & Kay, which employs five partners and 45 staff in York and Wetherby, said the merger would create an even strong team for the firm and a history of more than two centuries.  He said: "Bringing both firms together presents a great opportunity to build on the quality of support we offer already as a full service law firm to our clients now and in the future across Yorkshire, while maintaining the close client relationships that are at the heart of our approach." Peter Lawrence of P J Lawrence said "Ware & Kay is a very long-established and highly regarded firm and this merger will allow a wider service to…

We Have Moved

The offices comprise of a modern stables conversion in Wetherby town centre.  There are 1,340 square feet of modern office space, ground floor private consultation rooms and on site car parking. The move comes as part of the firm's strategic review of the business to target new business opportunities across West & North Yorkshire. Senior Partner Peter Kay said "the move and the position of the new offices will give us an opportunity to benefit from established business relationships and take advantage of commercial opportunities that arise in the town centre. In addition, the quality of the office space and the proximity to the town centre helped the team make the decision to move to this prestigious address". The full postal address is: The Aire Suite Brunswick Court Victoria Street Wetherby LS22 6RE Our telephone…

Tupe Regulations When They Apply

The Transfer of Undertakings (Protection of Employment) Regulations - known as "TUPE" - have been in force in various forms for over 30 years. Despite this, the law is still developing through case law. TUPE stems from a European directive and is intended to protect employees' rights where the business in which they work is transferred; and any attempt to avoid it will be void. Gillian Reid explains when TUPE applies, although some of these rules are relaxed where the business is insolvent and specialist advice should always be taken in this situation. TUPE applies to company asset sales where the whole or part of a business is transferred to a new owner. It does not apply to company share sales, where the identity of the employer stays the same. TUPE also applies to service…

Maternity Leave Part 2

Gillian Reid continues to answer some tricky questions from employers regarding employment procedures and maternity leave: What do I do about bonuses during an employee's maternity leave? This is a difficult area and the answer depends on the reason for the bonus. If it is to reward work done, payment only has to be made on a pro rata basis for the weeks when the employee was at work plus the two week compulsory maternity leave period immediately after the birth. Other types of bonus - such as a loyalty bonus or a Christmas bonus - will be payable in full. What happens if I need to make a woman on maternity leave redundant? This is permitted but an employee who is at risk of redundancy while on maternity leave has the right to be…

Maternity Leave Part I

The rules regarding maternity leave and pay are complex and employees are increasingly knowledgeable about their rights.  In addition, the rules change on a regular basis, all of which means that it is easy for employers to get it wrong.  This month and next month, we look at some common questions employers ask and provide the answers: What happens to holiday entitlement during maternity leave? Both statutory and contractual annual leave entitlement accrue during maternity leave.  A woman cannot take holiday while on maternity leave but can take it immediately before her maternity leave starts and after it ends.  If holiday cannot be taken in the current holiday year, an employee should be allowed to carry it forward to the next leave year. Can an annual pay rise wait until an employee returns from maternity…

Unlawful Deductions From Pay

Last year 71,300 claims for unauthorised deductions were brought in front of the employment tribunal, the second most common claim brought by employees. The most common examples of unlawful deductions made by employers are: Bonuses - many of the reported cases relate to the payment of bonuses.  The employment tribunals have decided that, if the amount of the unpaid bonus can be quantified, the employee can claim it as an unlawful deduction. Underpayment of commission - if the employee is paid less commission than is due, this may be an unlawful deduction. Tips - if a worker is entitled to tips (or part of a "tronc"), which are not paid, he can bring a claim. Holiday pay - a failure to pay outstanding holiday pay when the employment terminates has been held to be…