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It’s the time of year when many of our employees are off on holiday and so you may be considering employing some young workers during the school holidays – have a look at the do’s and don’ts of employing young people. We’ve had several questions recently regarding the use or not of probationary periods and also on rehabilitation periods for offenders when their conviction is spent.
The default retirement age looks likely to be scrapped with effect from October 2011 following a consultation period that will run until 21st October, 2010. For a summary see our article below, or to access the consultation document, click here
Finally, we have the latest tribunal claim figures up a staggering 56% on last year.
As ever, your feedback is always appreciated so please do let us know if there’s anything else you would like to see in our e-Bulletin.
Kind regards,
Angela
Kind regards,
Angela
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Benefits of Probationary Periods There’s no legal requirement to use probationary periods but they can be a useful management tool provided they are well structured and properly implemented.
They’re commonly used for all new employees and in many cases for existing employees who are transferring or being promoted into different roles.
It’s generally believed that the use of probationary periods increases the likelihood that new employees will perform effectively in their new role. The employee’s performance should be monitored closely during their probationary period and if any problems crop up, these should be addressed quickly. It’s important to make sure that the employee understands that some aspect of their performance or conduct is unsatisfactory and to prevent the situation worsening. Line Managers should provide relevant guidance and support, together with any necessary training or coaching to ensure the employee is given every opportunity to succeed.
Probationary periods are often initially for a period of three months but it is perfectly acceptable for the Company to reserve the right to extend the period at their discretion and without prejudice to the Company’s right to terminate employment before expiry of the probationary period.
Many companies have shorter notice periods which are then extended upon satisfactory completion of the probationary period, typically from one week to four weeks.
Always make sure you review probationary periods before they are due to terminate, particularly if you wish to terminate them as in the recent case of Przybylska v Modus Telecom the Employment Appeal Tribunal held that an employee’s probationary period should have been regarded as complete when the period expired and her employer failed to exercise its contractual right to extend it. This is likely to mean that an employee is entitled to a longer notice period if the contract of employment provides for a longer notice period after the expiry of the probationary period and any subsequent dismissal on account of unsatisfactory performance may be more difficult for the employer to justify.
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Employment of Young Persons
The summer holidays are traditionally the time when companies take on young people to cover annual leave.
A “young person” is classified as a person who has attained school-leaving age (ie 16 years) but is under the age of 18.
Restrictions on the employment of young persons are contained in the Young Workers Directive in which the main provisions are as follows:
- Daily rest period of 12 consecutive hours in every 24 hours.
- Weekly rest period of two days every seven days, consecutive if possible
- 30 minutes’ rest break for every 4.5 hours of work
- free assessment of health and capacities before undertaking night work and at regular intervals thereafter
- Young workers will not ordinarily be permitted to work more than eight hours a day or 40 hours per week in aggregate.
- Night work by young workers will ordinarily be prohibited during the period between 10pm and 6am or, if the contract so provides, between 11pm and 7am.
- Exceptions to maximum working hours’ provision would apply where the work is necessary either to maintain continuity of service or production, to respond to a surge in demand, where an adult is not available to perform the duties and the training needs of the young worker are not adversely affected.
- Where a young worker works at night, he must be adequately supervised by an adult where supervision is necessary for the young worker’s protection and must be given an equivalent period of compensatory rest where the working time would otherwise have been a rest period or rest break.
- The minimum wage for a 16 or 17 year old currently stands at £3.57 per hour increasing to £3.64 per hour from 1st October 2010.
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Significant Rise in Tribunal Claims
The recently published tribunal statistics for 2009/10 show that claims submitted by employees during the last year have increased by a massive 56% on the previous year.
The most popular claims accepted by the tribunal were for:
- Unfair dismissal – 57,400 claims (an increase of 8%)
- Breach of contract – 42,400 claims (an increase of 23%)
- Unauthorised deductions from wages – 75,000 (an increase of 54%)
This demonstrates the risks of a claim are higher than they have ever been. Your best defence is to ensure that you have followed the correct procedures and best practice when dismissing employees.
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Rehabilitation Periods
Under the Rehabilitation of Offenders Act 1974, a conviction will become spent after a specified time period has elapsed allowing a prospective employee to be treated for most purposes as if the conviction had never happened. The specified time period depends upon the type of sentence and the length imposed.
| Sentence |
Rehabilitation Period
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Imprisonment or youth custody between 6 and 30 months
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10 years*
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Cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty’s service
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10 years*
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Imprisonment or youth custody for less than 6 months
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7 years*
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Dismissal from Her Majesty’s service
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7 years*
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Detention in respect of a conviction in service disciplinary proceedings
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5 years*
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Fine or other sentence subject to rehabilitation under the Act such as community service
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5 years*
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Order for detention in a detention centre
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3 years
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Absolute discharge
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6 months
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Conditional discharge
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1 year
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Probation
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5 years*
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*The rehabilitation period is reduced by 50% if the person was under 18 years of age at the time of their conviction.
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Retirement Age Abolished
The Government has announced it will remove the default retirement age (DRA) of 65 with effect from April 2011 following a consultation period that will run until 21st October, 2010.
The key proposals are:
- Retirements under the DRA will cease completely on 1st October, 2011 and no new notices of intended retirement may be issued after 6th April, 2011.
- Retirement dismissals will still be permissible after 1st October but must be objectively justified.
- Transitional arrangements will be put in place applying to retirements that have been notified before 6th April, 2011 to take effect before 1st October, 2011. Retirements that have been notified before 6th April, but intended to take effect after 1st October will not be valid unless they can be objectively justified.
- The procedural requirements applicable to a retirement dismissal will be abolished.
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Your Questions Answered
Q: Is it okay for us as an employer to make contact with our employee when she is off on long-term sickness absence?
A:We would strongly recommend that an employer keeps in touch with an employee who is absent on long-term sick leave to enquire about the employee’s wellbeing and to avoid feelings of isolation or rejection. They should also be kept informed of company events, announcements, etc. Agree a pattern of regular contact with the employee which may well increase the likelihood of them returning to work sooner rather than later.
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In Closing
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As always, I love to receive your feedback and I'd be especially grateful if you could let me know what you think of our new e-Bulletin layout and our new website. You can drop me an email via angela@crispinrhodes.co.uk or give me a call directly on 01908 576991. Also, don't forget you can download our new Desktop Guides to HR completely free of charge.
Lastly, please could I ask you to use the link below to forward this email onto anyone you think would benefit from keeping abreast of the latest changes to HR law? (And if you've been forwarded this email, you can subscribe to receive it every month by emailing or visiting our website)
Thank you once again, and for now I wish you all the best.
Kind regards,
Angela Rhodes
Crispin Rhodes Ltd
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Tel 01908 576991 - Fax 01908 607533 - Free HR Resources - Newsletter Archive - Contact Us
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Crispin Rhodes Ltd, 4 Aldrich Drive, Willen, Milton Keynes, MK15 9JH - VAT Reg No: 690381621
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Crispin Rhodes Ltd is a company registered in England and Wales with company number 3336715
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