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Monthly Archives: October 2015

Fit for Work Opens for Business

As of 8 September 2015, employers in England and Wales are able to refer employees to the new Fit for Work occupational health assessment referral service. This is a new Government service that offers a free voluntary occupational health assessment for employees who are off work through illness or injury for at least four weeks.In particular, the service is aimed at small and medium-sized businesses with little or no occupational health support. However, it is also intended to complement existing occupational health provision for larger employers.

Given that 31% of workers are employed by organisations with no occupational health support (YouGov) and around 815,000 working people each year have sickness absence of four weeks or more, the Fit for Work initiative looks to be a useful one.

However, according to the Chartered Institute of Payroll Professionals, only one in four organisations expect to use the service. So, why the reluctance?

Probably for two main reasons: firstly, the service is voluntary and employees can simply refuse to be referred; and, secondly, referrals cannot be made until the sickness absence has lasted for four weeks – a long period of absence for any small or medium-sized undertaking to handle.

Still, given that employers and employees alike have expressed a desire for more support in encouraging employees back to work after prolonged sickness absence, this service – described as ‘free, expert and impartial’ – has to be a step in the right direction in controlling long term sickness absence.

To learn more about changes to the government’s Fit to Work scheme, you can read our newsletter that covers the subject in more detail.

In the meantime, we would love to hear what small business owners think about the changes. So please, contribute to the debate in the comments section below.

By Iain Mackintosh

European Court Rules Mobile Workers Travel Time Counts as Work

Last week, a European Court of Justice (ECJ) decision found that, for workers with no usual place of work, time spent travelling to appointments from home should form part of a worker’s working day. The ruling came about because of an ongoing legal case in Spain involving a company called Tyco, which installs security systems.At present, working time is defined in The Working Time Regulations as:

• Any period during which the worker is working at his or her employer’s disposal and carrying out his or her activity or duties;
• Any period during which he or she is receiving relevant training; and
• Any additional period designated as working time under a relevant agreement.

Working time includes travelling where it is an integral part of the job, e.g. a travelling sales executive or a care worker. This includes travel during normal working hours and travel between sites or clients, since the travelling is an essential part of the work.

The Working Time Directive

The Working Time Directive sets down regulations on matters such as how long employees work, how many breaks they have, and how much holiday they are entitled to. One of its main goals is to ensure that no employee in the EU is obliged to work more than an average of 48 hours a week.

In its ruling, the ECJ said time spent travelling to and from their first and last appointments should be regarded as working time under the European Working Time Directive. The judgment explained that excluding those journeys from working time would be contrary to the objective of protecting the safety and health of workers upheld by EU law.

A groundbreaking decision

This is an important decision for employers with mobile workers, i.e. those without a fixed place of work. Such employers will need to consider how they calculate working time – for example, in relation to the maximum weekly working hours, which could mean that employers will have to ask staff to opt out of the Working Time Directive’s 48-hour working week.

If employers don’t do this, employees could quickly exceed the number of working hours that they are legally allowed to work and employers could find that they are operating illegally and at risk of facing costly claims against them.

Although this case was not concerned with remuneration, there still may be wage implications for employers. For instance, employees may argue that time spent travelling to and from their home for customer visits should count for the calculation of the national minimum wage.

Employers may, therefore, wish to give thought to scheduling the first and last customer visits of the day close to a worker’s home.

Do you employ mobile workers? How will these changes potentially affect your business? Please join the debate in the comments section below.

By Iain Mackintosh

Everything You Need To Know About The Small Business, Enterprise and Employment Act 2015

This blog looks at what the new Act is, its implementation into law, key changes and what you should be doing now to prepare for some of the more significant changes due to take place.

What is the new Act?

The Small Business, Enterprise and Employment Act 2015 received Royal Assent in the last days of the previous parliament. The Act contains a number of measures which together represent significant change for companies and Companies House customers. The Act is being phased in over a nine month period, with the most significant (and controversial) changes due to come into force in 2016.

The government’s stated aim is that the Act should reduce red tape for SME businesses whilst increasing the quality of information on the public register. It also aims to enhance transparency and ensure the UK is seen as a trusted and fair place to do business.

When is it being implemented?

Certain parts of the Act are already in force and the rest will come into effect over the next nine months, with the bulk of the implementation being in 2016. There are, however, certain important changes in relation to the way directors consent to their appointment (as company directors) that are due to come into force on 10 October 2015.

For our updated template material in relation to this new consent procedure, click click here.

What are the key changes?

One of the major changes is that there is to be a register of ‘persons with significant control’ over companies. Private companies must maintain a register of people who hold – directly or indirectly – more than 25 per cent of the shares in a company from April 2016. This information must also be filed with Companies House as of June 2016.

However, for some companies, this register will prove a big and troublesome exercise, and could be said to fly in the face of the government’s red tape challenge and objective of saving time and money for companies.

Another important change is that the requirement to submit an annual return to Companies House will be abolished. Instead, companies will be required to confirm once a year in a ‘confirmation statement’ that the filing of statutory information is up to date and notify of any changes.

Yet there is concern that some companies will confirm everything is up to date without checking to see whether this is actually the case, and over time the quality of the Companies House register may deteriorate. Furthermore, the register may also become progressively harder to use, as the current ‘snapshot’ approach of the annual return is lost.

What should I be doing now?

Simply-Docs has produced a range of documents to cover the parts of the Act that have been implemented already. In addition, we have produced this information page, which includes headline points that SME businesses need to be aware of and their implementation dates.

We will add to our range of documents in due course. as and when other implementation dates approach. However there are some practical steps that companies can take to prepare themselves, particularly in preparation for the new register of ‘persons with significant control’.

This includes finding out who has significant control of the company now, before contacting these people to confirm their shareholding and explain the types of information that they will need to provide to the company going forward. Doing this now will make the whole process of meeting your company’s statutory obligations much easier in 2016.

By Iain Mackintosh

Residential Landlords Watch Out – Section 21 Notices Just Got More Difficult!

On 1 October 2015, significant changes were made to housing law in England (properties in Wales are not affected). The changes which are set out in the Deregulation Act 2015 increase the level of protection afforded to tenants, while placing extra burden on landlords.Buy-to-let investors are still coming to terms with the budget bombshell concerning the reduction of tax relief on mortgage interest payments. How much will these 1 October 2015 changes add to their woes?

What has changed on 1 October?

The most important changes affect landlords’ ability to recover possession of their premises at or after the end of the term of an assured shorthold tenancy. Section 21 of the Housing Act 1988 allows landlords to remove tenants on a ‘no fault’ basis, provided they serve notice correctly and there are no factors that serve to invalidate the notice.

From 1 October there is a longer list of invalidating factors – or, in other words, there are more obstacles in the way of landlords seeking possession. There are also changes to the timing of a Section 21 notice and the timescale for issuing possession proceedings. And there is a new prescribed Section 21 notice which landlords must use.

Readers should note that the changes referred to below only affect tenancies that start on or after 1 October 2015. Tenancies granted before that date are not affected. However, from 1 October 2018, the new provisions will apply to all tenancies, regardless of when they were granted.

Validity of Section 21 Notices

Until 1st October 2015, there were two factors that could invalidate a Section 21 notice: failure to protect the tenant’s deposit in an approved tenancy deposit protection scheme and failure to comply with HMO licensing requirements.

On 1 October, several more restrictions came into play. Landlords are now unable to serve a valid Section 21 notice if:

1. The tenant has made a valid complaint about the condition of the property and, instead of addressing the complaint, the landlord serves a Section 21 notice. This is known as ‘retaliatory eviction’. This restriction comes into play where the local authority has served an improvement notice or an emergency remedial action notice under the Housing Health & Safety Rating System (HHSRS).

2. The landlord has failed to provide the tenant with any of the following: a valid energy performance certificate, a current gas safety certificate or a copy of the publication ‘How to rent: the checklist for renting in England’, published by the Department for Communities and Local Government.

To clarify because this is important: failing to give your tenant a copy of the ‘How to rent’ document means you can’t serve a valid Section 21 Notice!

Timing issues

Prior to 1st October 2015, some landlords and agents liked to issue a Section 21 notice at the start of the tenancy. This was deemed to be unfair to tenants, so from 1st October it is not possible to serve a Section 21 notice in the first four months of a tenancy. Therefore landlords and agents will need to make and keep accurate records if they want to obtain possession at the earliest possible stage – i.e. after six months.

There is also a new deadline for starting possession proceedings if the tenant does not vacate of his or her own accord. Proceedings must be started within six months of the date of service of the Section 21 notice, otherwise a new Section 21 notice must be served.

Prescribed form of Section 21 Notice

A new prescribed form of the Section 21 notice needs to be used to terminate tenancies that start on or after 1 October. Use of the prescribed form is optional for existing tenancies but it is likely that landlords will adopt the new form for all tenancies. From 1 October 2018, the new form must be used for all tenancies.

Any other changes?

As well as the changes to the Housing Act discussed above, landlords and agents need to be aware of the new Smoke and Carbon Monoxide Alarm (England) Regulations 2015 which came into force on 1st October.

Carbon monoxide incidents are more common in rented property than in privately owned homes, and these new regulations are part of a wider effort to improve fire safety in the UK.

The regulations require a smoke alarm to be installed on each storey of premises on which there is a room used wholly or partly as living accommodation (this includes bathrooms and toilets). They also require a carbon monoxide alarm to be present in any room that is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance. On the first day of a new tenancy, the landlord or their agent must check that each alarm is in proper working order.

Local housing authorities have enforcement powers.

Many properties, particularly those built in recent years, will already be equipped with alarms that comply with the regulations. However, landlords and agents should carry out an audit of their properties to identify deficiencies and remedy as soon as possible.

What should landlords and agents do now?

Landlords and agents should familiarise themselves with the new rules relating to termination of tenancies. A range of new and updated template documents is available on the Simply-docs website.

As we all get to grips with the new regime, we would love to know what landlords and agents think of these changes. Do they strike a fair balance between the interests of landlords and tenants? Will the “how to rent” publication be a useful addition to the tenancy paperwork? Please contribute to the debate in the comments section below!

By Iain Mackintosh