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ASK HR
HR and Employment Law Assistance
Every small business owner faces challenges. The added burden of HR can be daunting
and time consuming. It can also be expensive if you get it wrong.
Our Employment Department has been named in the Legal 500 for a number of years.
We believe in the personal approach and like to find out about you and your business
and the workforce issues you face, in order that we can tailor your employment
contracts and staff handbook accordingly. You get to know each of our team and
we get to know yours.
Solicitors Advice:
All advice and communications between us are Legally professionally privileged.
HR Genie:
Our HR software is GDPR compliant and a valuable time saving
tool for businesses of all sizes.
We can help you to comply with your legal obligations as an employer and guide you
on best practice in order to protect you and your business. You can be certain that
you will have the answers to the issues that arise in your business.
ASK HR Scheme includes:
+ HR Portal – (electronic personnel files)
+ Bespoke Contracts of Employment for each employee
+ Comprehensive Staff Handbook tailored to your business
+ Advice from qualified Solicitors available 365 days per year
+ Precedent letters / documents
+ Employment law updates and topical articles
+ Rates and limits table
+ GDPR compliant
+ Monthly payment plan

Employers beware! Advice from HR
Consultants is not legally privileged
Privilege entitles a party to withhold evidence
from production to a third party or the court.
Such evidence may be either written or oral.
The purpose of legal privilege is to enable a
client to place unrestricted confidence in
their Solicitor.
Types of Privilege
Privilege cannot be claimed unless the
evidence in question is confidential.
There are two types of legal privilege:
+ Legal advice privilege
+ Litigation privilege
Legal advice privilege protects confidential
communications between Solicitors and their
clients made for the purpose of seeking or giving
legal advice. It can apply whether or not litigation
is pending or contemplated.
Litigation privilege protects confidential
communications between Solicitors and their
clients, or the Solicitor or client and a third party,
which come into existence for the dominant
purpose of being used in connection with actual
or pending litigation. Litigation privilege can only
apply when litigation is pending or contemplated.
Litigation privilege applies to proceedings in the
courts as well as the employment tribunals.
Human Resources Consultants
and other Non-Legal Members
While HR consultants have become a popular
means of obtaining employment advice in recent
years, communications between a company and
an HR consultant are not protected by legal
advice privilege.
In Carron v Fastcom, the employee Mr Carron
brought a claim for unfair dismissal against his
former employer Fastcom Broadband Limited.
Prior to Mr Carron’s dismissal, Fastcom took legal
advice from HR consultants Peninsula Business
Services (Ireland) Limited in relation to a grievance
raised by Mr Carron. The EAT determined that
Peninsula was primarily a consultant and advisor
to the employer which, although involving some
advice on legal issues, did not classify Peninsula as
a lawyer and thereby enable it to benefit from
legal advice privilege.
What does this mean for you?
Given that legal advice privilege does not attach
to advice given to Employers by non-lawyers such
as Peninsula or HR consultants, such advice,
whether given in connection with disciplinary
action, a dismissal or a grievance is therefore fully
disclosable to an employee who submits a data
access request to their employer. In these sort of
situations, prudent employers often obtain sensitive
advice at the outset, long before any claim or
litigation is contemplated and it is disconcerting
for an employer to know that such advice may
find itself in the hands of an aggrieved employee.

HR Genie
HR Genie is a portal built upon an employee
database and stores everything associated
with your employees.
At the touch of a button you will be able to
access your employees’ employment contract,
holiday and absence record, remuneration
details, work pattern, appraisals, training and
performance reviews and their timesheets
and expenses.
Staff Handbook
HR Genie allows you to save your staff handbook
and other documentation in a shared area to
enable easy and quick access. You can also store
your company vision, mission and values here.
Holiday and Absence Management
HR Genie is designed to show you where your staff
are at all times. You will be able to see who is off
sick, who is on holiday and who is working from
home on any given day of the week.
Reminders and Warnings
HR Genie reminds you of key dates such as
birthdays, end of probation periods, end of the first
two years’ employment, imminent work permit or
qualification expiries. You will also get a notification
if any member of staff is currently earning below
National Minimum Wage which can easily happen
when a younger member of staff has a birthday or
there is a rate increase.
Appraisals
Reports
Our software offers one-click access and exporting
of commonly used reports such as a Payroll report,
absence report and Employee Snapshot report.
Health and Safety
HR Genie stores details of all key Health and Safety
role holders and sends warnings out if any of these
role-holders are due to leave so the role can be
replaced in a timely manner.
Time Tracking and Billing
You can record the time you work on a project or
activity by using the built in stopwatch feature
and then allocate that time to a project or client or
activity. This function is useful for businesses who
use agency workers or locums.
Staff Expenses
HR Genie lets your staff quickly and easily fill in an
expense claim from their smartphone or computer.
They can easily upload receipts in support, and they
can charge the expense to a project/client or code.
You can then approve or reject the expenses online
and a record of the expense claim is filed away.
Mobile-ready to use on the go
Our software is built to work well on mobile devices
whether it’s a tablet or a smartphone, so you and
your staff can use all of the software features when
you are out and about.
Our online appraisal system manages the appraisal
process for you. It reminds both the manager and
the employee when the appraisal is due and then
reminds them to complete the appraisal forms
ahead of the scheduled appraisal date. You can
customise the questions to suit your business.

TUPE - A guide for small businesses
What is TUPE?
The immediate answer that springs to mind is ‘a
nightmare’, but in fact ‘TUPE’ stands for the Transfer
of Undertakings (Protection of Employment)
Regulations 2006. The regulations are intended
to safeguard employees’ rights on the transfer of
a business.
TUPE introduced three basic concepts into UK
employment law:
+ The automatic transfer principle whereby
employees transfer to the ‘new’ business who
inherits all rights, liabilities and obligations in
relation to them.
+ Protection against dismissal in connection
with a TUPE transfer.
+ The obligation to inform and consult with
representatives of affected employees.
When does TUPE apply?
TUPE applies to organisations of all sizes where
a business or part of a business (e.g. a particular
function) moves to a new owner or merges with
another business to make a brand new employer.
TUPE also applies where there is a service provision
change, for example:
+ A contractor takes over activities from
a business (known as outsourcing).
+ A new contractor takes over activities from
another contractor (known as re-tendering).
+ A business takes over activities from a
contractor bringing the work back in-house
(known as in sourcing).
Obligation to inform and consult
Both the transferor (outgoing employer) and the
transferee (incoming employer) must inform and
if appropriate consult with recognised trade unions
or elected employee representatives (if there is no
recognised union) in relation to any of their own
employees who may be affected by the transfer
or any measures taken in connection with it.
Employers with fewer than 10 employees may
consult with the employees directly. Certain
information must be provided under the
regulations. Although there will be a duty to
inform on every TUPE transfer, the duty to consult
only arises where an employer envisages taking
measures in respect of affected employees.
What happens to the employees?
The contracts of employment of those employees
employed by the transferor and “assigned to the
organised grouping of resources or employees that
is subject to the relevant transfer” automatically
transfer to the transferee on their existing terms.
Employees who object to the transfer do not
become employees of the transferee, their
contracts of employment terminate by operation
of law and there is no dismissal.
What happens to the employees’ terms
and conditions of employment?
The transferee takes on the transferring employees
on their existing terms of employment and can
only make changes to their terms in limited
circumstances. Changes to terms of employment
will be void if the sole or principal reason for the
change is the transfer itself, unless either:
+ The reason for the variation is an economic,
technical or organisational reason entailing
changes in the workforce (“ETO reason”).
+ The reason for the variation is the transfer,
but the terms of the contract permit the
employer to make such a variation.
Terminating Employment
TUPE provides enhanced protection against
dismissal over and above general unfair dismissal
law for employees with 2 years’ service. Dismissals
will be automatically unfair if the sole or principal
reason for the dismissal is the transfer itself, unless
there is an ETO reason whereby the dismissal
would be subject to the usual principles of fairness.
Resignations in response to a repudiatory breach
of contract or to substantial changes in working
conditions to the employee’s material detriment
are treated as deemed dismissals to which the
enhanced protection against dismissal applies.
Penalties
A failure to comply with the obligation to inform
and consult exposes the parties liable to pay
compensation equivalent to up to 13 weeks’
uncapped pay per affected employee. This is in
addition to any potential compensation where an
employee is found to have been unfairly dismissed
or has other employment related claims.

GDPR – A summary of your
obligations as an employer
General Data Protection Regulation (GDPR),
governs data protection and privacy for all
individuals within the European Union. GDPR
aims to give control back to individuals over
their personal data by introducing enhanced
rights, greater transparency, more onerous
standards for consent and tougher sanctions
for non-compliance.
Under GDPR, employers must:
+ Fairly and lawfully collect and process
personal data.
+ Provide employees with information about the
personal data they hold and how it is used.
+ Only use personal data for the purposes for
which they collect it, unless they take
additional steps.
+ Keep employee personal data accurate,
up-to-date, and retain it for no longer than
is necessary.
+ Delete or anonymise personal data once
they fulfil the purpose for collection or meet
applicable legal obligations.
+ Implement appropriate security measures.
+ Provide employees with rights to access, correct,
and erase their personal data.
+ Ensure compliance with cross-border transfer
restrictions for transfers of personal data to
countries outside the EEA that do not ensure
an adequate level of data protection.
+ Be able to demonstrate compliance with
these principles.
Processing Human Resources Data
Employers may lawfully process employees’
personal data if it is necessary for the performance
of an employment contract, compliance with the
employer’s legal obligations, to protect the
employee’s vital interests, for carrying out public
functions, or for the legitimate interests of the
employer or any third party to whom the employer
discloses the personal data (provided the
employee’s fundamental rights and freedoms
do not override those interests).
Employee Consent
Many employers justify processing personal data
on the basis of employee consent, by using
standard provisions in employment contracts.
However, an employer must present the consent for
data processing separately from any other matters
and not bundle consent with acceptance of other
terms and conditions. Such consent must be
specific, informed, freely given and unambiguous.
For most work-related employee personal data
processing, consent cannot and should not be the
lawful basis for processing due to the imbalance of
power between the employer and the employee.
Consent must be demonstrable.
Data Breaches
The GDPR imposes a new mandatory breach
reporting requirement. Where there has been
a data breach (such as an accidental or unlawful
loss, or disclosure of personal data), the employer
will have to notify and provide certain information
to the data protection authority within 72 hours.
Where the breach poses a high risk to the rights
and freedoms of the individuals, those individuals
will also have to be notified.
Processing personal data under the GDPR means
carrying out any operation on personal data
including collecting, recording, organising, storing,
using, disclosing or disseminating. Employers
may need to process employees’ personal data
for certain human resources purposes, such as
recruitment, performance of an employment
contract, management, planning and organization
of work, equality and diversity in the workplace,
health and safety etc.

02476 231000
www.askewslegal.co
@AskewsLegal
@askews.legal.llp
5 THE QUADRANT COVENTRY CV1 2EL