Managing employees and volunteers: Your most common questions answered

Dominic Smith is a Croner expert advisor, specialising in the field of HR and employment law matters.

Croner is an award winning consultancy company who have been supporting businesses for over 75 year in HR, Health & Safety and Reward.

HR and employment law specialists Croner, provide an unlimited, 24/7 business support helpline for NCVO members. In this blog post, Croner reveal the most common questions asked by NCVO members to its helpline about managing staff, along with the answers given by their team of experts.

Q. How long do I need to retain records for volunteers?

A. The General Data Protection Regulation (GDPR) and Data Protection Act 2018 require a data controller not to process data for longer than is necessary and it will be for each organisation to determine what data they are collecting, their purposes for doing so and for how long they need to hold that data.

Data controllers are advised to periodically review what data they are retaining. Clearly, if there is a legal obligation or a legitimate interest to retain the data in question then there will be a lawful basis for doing so, however where no lawful basis has been identified the data in question should be securely destroyed. The lawful basis to process and retain data are:

• consent
• contract
• legal obligation
• vital interest
• public duty
• legitimate interest.

Q. Our employee has two different jobs with us, however, one of those jobs is no longer required. If we made her redundant, we would not be able to pay the contractual notice. How do we deal with this?

A. The answer to this question depends on a number of factors, including the employee’s length of service and whether the employee has a separate employment contract for each role. Only an employee with two years’ continuous service or more is entitled to a redundancy payment.

If the employee has two jobs under the one employment contract, the cessation of one of those roles, and hours and pay of that role, will amount to a diminishment in work for redundancy purposes, entitling the employee to a redundancy payment. The employee could be offered the remaining work as an alternative to redundancy.

If the employee has two separate employment contracts, the employer could terminate one contract by way of redundancy and pay redundancy pay, with the employee being retained under the remaining contract of employment.

Q. We have some self-employed contractors, however, we may have treated them as employees. We have now asked them to become employees, which they’ve declined. What do we do now and what liability does this bring to the company?

A. This is a difficult scenario and before proceeding the employer should be confident of their position. The employer is advised to make further attempts to seek the employees’ agreement explaining their contractual status and the risks to both the employer and the employee of operating in breach of the law. Ultimately, if the employees will not accept, the employer has the option of issuing an employment contract confirming the employment relationship. The employer needs to be careful not to introduce any contractual terms that would be detrimental to the employees, as such an action could result in a claim for constructive dismissal.

There are circumstances where the law requires a minimum consultation period and NCVO members are best advised to call the Croner helpline (0844 561 8133) for advice when faced with this scenario.

Q. I am a CEO who has just taken over a company. There are no contracts in place for the existing staff. What do I do? Is this a risk?

A.  This is a common situation particularly where the company has been acquired by way of a relevant transfer as defined by Transfer of Undertakings (Protection of Employment) Regulations 2006. The Employment Rights Act 1996 states that an employer must give an employee a written statement of particulars (a contract of employment) no later than two months from employment commencing.

In this scenario, the employer can introduce contracts but must be aware that any terms that have existed by way of custom and practice will be protected under the 2006 regulations and that any changes to these terms will be automatically void. While no separate claim exists for not issuing an employment contract, an employee making another claim to an Employment Tribunal can ask for an additional two or four weeks’ compensation where the employer has failed to comply with this obligation.

Q. The company handbook has not been updated for a significant period of time and the contracts are historic. How do I revise them?

A. No update should be undertaken without sufficient knowledge of HR practice and employment law. Case law has proved continuously that wrong, inconsistent or unclear policies and contracts do not assist the employer who is under a legal obligation to set clear directions for their staff.

It may be beneficial to start with an up-to-date precedent from an HR or legal resource and adapt those to the needs of the business rather than starting from scratch. Once the draft documents are ready the employer should consider the differences between the existing contracts and handbooks and the proposed updates.

If contractual changes are required then the employer must consult with their staff; even where changes are non-contractual, consultation over changes to policy is often considered best practice. Finally, communication is key. A policy that is well drafted but not communicated to the workforce serves no purpose and negates the time and effort spent in updating the policies.

Croner are able to draft up-to-date, commercially-orientated contracts and handbooks for NCVO members.

Further information

NCVO members can get unlimited access to our trusted supplier Croner’s business support helpline, allowing you to speak to an expert who can give you quick and reliable advice.

If you are currently dealing with any of the above situations or would like guidance from a Croner expert on another matter, please call 0844 561 8133 and quote the scheme number NCVO.