Ask The Expert: Insights on Overtime, Hate Crimes & HR Policies

Our good friend at Blackadders recently held an Ask The Expert session. Sharon, one of our HR Consultants, attended this session and has reported back on some of the key points made, which you can read below.

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Overtime

Should it be paid to everyone at every level?

Employment law generally suggests that overtime (O/T) pay is not a necessary requirement, but there are some exceptions to this, of which we’ll cover below:

The first exception to the rule is part – time Workers, who can qualify for overtime pay if they work an increased number of hours than the full – time workers and / or employees who work during anti – social hours (typically late nights or weekends), that full – time staff do not cover. With this exception, you are providing a fair compensation for the equal treatment of your part – time workers.

Men and Women must receive the same overtime pay rate when carrying out the same or similar job. This is determined by the Equal Pay Act, which you can read more about here.

There are also some vital considerations to think about when offering overtime shifts to your employees. One of which is to avoid any indirect discrimination – this is when, for example, you offer shifts to only to more experienced members of staff. By doing this, you would be discriminating against the employees who are younger and less experienced, as they may never be able to get the experience level that others have if you do not provide them the opportunity to do so.

Some additional tips we would recommend on this topic are to ensure you have clear and transparent overtime policies in place, making sure that all of your employees understand what overtime is, how the overtime shifts are decided and who is eligible for overtime shifts.

Hate Crime

Who has jurisdiction if reported?

The legal definition of hate crime is “any crime which is understood by the victim or any other person as being motivated (wholly or partly) by malice or ill will towards a social group” Police Scotland Website.

There are some key elements of this definition to consider. One of which is Subjective Perception, which is the idea of a victim being involved in defining a hate crime.

If the crime has been motivated by malice. Then the person’s actions are fuelled by hate of another group.

Examples of Hate Crimes include racially motivated attacks based off of someone’s race or ethnicity. These can come in the form of physical assaults or vandalism. Religions hate crimes also fall under this category, which involves being hostile toward an individual or a group based off their religious beliefs. Thirdly, a homophobic hate crime is against someone dependant on their sexual orientation or gender identity.

It is important how you can respond to hate crimes. Firstly, you can report them to the Police. In order for the perpetrator to be punished, the Police must be aware of the full details of the incident.

As an employer, you can offer support to the victim. Ensure that the victim has all the necessary support, including psychological support, to help them come to terms with what has happened.

Employers should not confuse a Hate Crime claim with an Unlawful Discrimination claim which is when someone is treated worse, than another, because of a protected characteristic.

Employers are advised to follow their Disciplinary Procedure and investigate any instances of Hate Crime. This should be carried out separately from a Police Investigation.

The Employers investigation may need to also take the following into account:

• Is this off-duty conduct?
• Is the employee in a position of Trust and Responsibility?
• Will this lead to criminal proceedings? The investigation may need to put on hold until the police investigation concludes and the outcome is known.

Informal References

What to look out for?

Even though this happens, the following problems can arise:

• Lack of transparency – Internal and external candidates may lack trust toward the recruitment team. A lack of transparency can put off suitable candidates. There will also be reputational damage for the organisation.

 

• Breach of Confidentiality – Data protection issues if candidate has not agreed to share their personal information. A breach may occur from situations like informal discussions on candidates, with people not within the recruitment team. With this comes legal consequences as candidates are protected under the General Data Protection Regulation within the UK. Businesses may face fines and legal actions if a breach does occur.

 

• Unsubstantial feedback – Informal feedback could be biased or discriminatory, and not based actual on the job performance. If a personal bias occurs, this can result in an unfair hiring process and influenced decisions that don’t provide a clear picture on the candidate. Structured feedback is necessary for a consistent hiring process. If this does not happen, your hiring process may become inconsistent and result in inequalities within the hiring process.

How to prepare for Labours’ planned introduction of basic individual rights?

A New Deal for Working People may come into law. The plan would introduce Day One rights for employees in following areas:

• Unfair Dismissal – this is when an employee is sacked from their job and not provided with a fair reason for that.
• Sick Pay – this is pay given to employees who can’t work due to illness.
• Parental Leave – this is a statutory right that enables parents to have time off from work to look after their child / children.
• Advice to Employers to prepare:
• Check that employees have the correct work status.
• Are they an employee, worker or self-employed as each has a different level of employment rights. Employees have the most employment rights.
• Ensure that the contract agrees with what is happening in practice. For example, casual workers may have gained employee rights if they are continuously employed over a period of two years.

HR Policies

The must-haves?

This will depend on the business.

Contract of Employment or Statement in Particulars – needs to include:

• • Sick leave and pay – An employee is allowed time off from work to recover from an illness.
  • Paid leave – This is leave such as annual leave or maternity leave. An employee is off work and still receives a salary.
  • Pension – This is a retirement financial savings, which an employee and employer both contribute to throughout their working life.
  • Collective agreements – This refers to negotiations between employers and employee trade unions on terms such as wages and working hours.
  • Disciplinary and grievance – This is a process for dealing with employee misconduct in the workplace.
  • Training entitlements – All employees have the right to receive training on their job.
  • Health and safety – All employers and employees have the responsibility to ensure their workplace is safe for everyone.
  • Equal opportunities – Employers must provide equal opportunities to everyone regardless of race, age, gender, amongst others.
  • Sex harassment – This refers to unwanted advances of a sexual nature.
  • Data Protection – This involves ensuring that all data stored by the company is correctly stored in a safe manner. A data breach can result in serious consequences for the company.
  • Social Media – All employees have the responsibility to behave in an appropriate manner on social media. Ensuring they do not post anything that reflects badly upon their employer.
  • Bribery – The Bribery Act 2010 ensures that individuals cannot influence others through the form of a bribe.

There are some ‘nice to have’ policies too that businesses should look to include  – Menopause, Conflicts of Interest, Time off for Dependents.

Equal Pay

The pitfalls of market forces defence

Market rate can justify a pay differential between members of opposite sex doing same or similar job. This could be a defence in an equal pay claim.

Avoid the pitfalls:

• Must follow Job Evaluation Scheme salary recommendations. Organisations must follow salary recommendations, which are provided to them by the job evaluation scheme.

• Must be able to justify all of the pay gap, not just one department. If there are wage gaps within the organisation. It is up to them to justify why this is occurring, making sure that no employee is at a direct disadvantage.

• Must justify on role-by-role basis. If there are differences in pay on a role – to – role basis, employers must explain why this is the case. Sometimes it may be down to experience or job performance.

• Must have sufficient evidence – can show pay differential due to the marketing forces for the last 6 years.

• Advised to use a credited professional benchmarking company. One service that we offer is to conduct a benchmarking exercise for a client who is looking to recruit for a certain position. This involves features such as expected pay and expected experience.

• Advised to check annually and explain whole of pay gap. Employers must ensure they are able to explain a pay gap for any salary differences within their company.

• Avoid insufficient reasons – i.e. salary negotiations – some staff may be better at negotiating a higher wage than others. It is vital that employers make decisions surrounding salary based on relevant criteria, and not an employees’ negotiation skills.