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Blog posts tagged law
Employees behaving badly: Part 2
September 15, 2010
If there’s a case to be answered….
If further action is necessary, the employee should be asked, in writing, to attend a disciplinary meeting on a specified time and date. The letter should set out clearly the allegation(s), consequences if the complaint is upheld (i.e. the imposition of sanctions, including dismissal if necessary) and either (a) a formal warning (b) some other form of disciplinary action may be issued or (c) a warning or other disciplinary action is to be confirmed (such as at an appeal hearing). The employer should tell the employee they are allowed to be accompanied by a union rep or colleague at the meeting. Evidence, including witness statements, should normally be given to the employee in advance of the meeting.
The right to be accompanied at the disciplinary meeting does not extend to being accompanied at investigatory meetings and nor does it confer the right to be accompanied by a lawyer (although recent case law suggests this may be changing). If an employer dismisses an employee for either asking to be accompanied, or for being the companion to an investigated employee, that dismissal will automatically be unfair.
All allegations should be discussed carefully and the employee allowed to put their case. Notes of the meeting should be taken by a dedicated note taker. This meeting should be held without undue delay, but allow the employee sufficient time to prepare their case and, where possible, should be conducted by someone other than the person who investigated the complaint. The companion may not answer direct questions but can help sum up the employee’s views.
Once the meeting has concluded the employer needs to carefully consider whether disciplinary action is justified, being careful to avoid taking a decision that might be viewed as discriminatory, arbitrary or inconsistent. In many cases employees will argue that the disciplinary action taken against them was unfair because another employee in similar circumstances was treated differently.
The Code requires that an employee be given the right to appeal against any disciplinary finding made and, usually, the employee will have to submit their appeal within a fairly short period of time - often five working days. The disciplinary sanction imposed will depend upon the circumstances of the case. In serious cases (aka gross misconduct) such as dishonesty, summary dismissal may be appropriate. Other, less serious cases, might require the imposition of a warning. Where the employee is found to have been underperforming he/she should be given realistic targets over a reasonable time frame for improvement. Many disciplinary policies will provide hierarchy of warnings - Oral, First, Final, then Dismissal. To terminate an underperforming employee can, therefore, be a lengthy process. Even in cases of gross misconduct the proper process should be followed, even if the employee “banged to rights”.
Where the employee is dismissed the employer should communicate the decision promptly and confirm the date of termination. Dismissal for gross misconduct means that the employee is only entitled to be paid their salary and contractual benefits up to the date of termination, which will usually be the date that the employer reaches its decision that the complaint is upheld. There is usually no obligation on the employer to pay or make the employee serve notice in cases of summary dismissal, unless the employer is ordered to do so by an Employment Tribunal or Court if the employee sues.
For some employers the above will make sobering reading and employers would be well advised to take legal advice before commencing the disciplinary process. The Employment law landscape is complex and beset by many pitfalls. Always take legal advice from a specialist before taking action. Finally, before hankering for the days when employees could be sent to prison for insubordination or wishing for the right to flog the underperforming salesman pour encourager les autres just think, it could be worse: how long will it be before children start demanding dispute resolution procedures at home? Acas for children? Perish the thought.
Employees behaving badly: Part 1
September 15, 2010
As the school holidays thankfully draw to a close and parents can look forward to someone else getting paid to entertain, educate and admonish their delightful offspring for the next few months, my thoughts have remained with conduct and discipline.
It occurs to me that in many workplace disputes there is little to distinguish two employees sparring with each other from a five-year old kicking his sister for playing with the “wrong” toy. The main difference is how you resolve the dispute, the Masters and Servants Act 1867 - which treated “aggravated breach of contract” by employees as a criminal offence punishable by imprisonment and hard labour – having been abolished.
So, leaving aside flogging and imprisonment, how do employers deal with conduct issues in the workplace or, even more difficult, “misbehaviour” outside office hours that somehow involves the employer? What is misconduct and what penalties can be applied to the miscreant?
First things first. There is no one standard definition of misconduct; it is a question of circumstance and fact. Obviously some behaviours, such as stealing, swearing, refusal to work, being abusive to colleagues or managers, aggression, lateness and absenteeism are, in principle, fairly clear cut: the problem is determining that they have occurred.
Most decent employment contracts or handbooks usually contain a list of behaviours that are considered misconduct, or capable of amounting to it. And every employer, whatever its size, must also have a disciplinary and grievance policy.
Discipline law has been under much scrutiny since 2004 when the last government introduced a statutory procedure with the aim of reducing the number of tribunal claims - in practice it had the opposite effect, principally because tribunals had the power to adjust compensation payments if either party departed from the set procedure.
In 2009 the system was replaced by a simpler procedure governed by the Acas Code of Practice, which tribunals are generally required by law to take into account . Admirably succinct at 11 pages, the Code is supplemented by hefty (but not legally binding) guidance at 88 pages in length. Tribunals retain the power to adjust an award where there has been an unreasonable breach, but this is now very much a matter of exercising discretion (rather than mandatory).
What are the procedures? Acas’ emphasis is for the employer to conduct a full investigation of any allegations of misconduct as soon as the issue arises. In some cases it may be necessary to suspend the employee. Care should be taken in this situation as suspension is not a disciplinary tool and should be imposed for as short a time as possible. The employer should also write to the employee clearly stating that the suspension is not to be seen as prejudging the outcome and confirming that the employee will continue to be paid.
Once the investigation has taken place, the employer needs to decide if the allegations hold water, and, if so, take further action.
Read Part 2 to find out how to implement disciplinary measures.
Are you ready for the Equality Act? 1 October sees a huge change in UK law – but will it affect your firm?
September 13, 2010
Big changes to business law come into force twice a year – in April and October. 1 October sees employment law changing yet again – the minimum wage is going up, and the Equality Act kicks in.
If you’re a manager battling hard times the last thing you need is more law, but you’ll be pleased to hear that this round of law changes might end up making your life more straightforward. The key new law, the Equality Act, harmonises the current muddlesome raft of equality and diversity legislation into one single set of rules.
Although the Act is a huge piece of legislation, there won't be any major changes to employee rights. However, you should bear in mind that various types of bad business behaviour have now been specifically made unlawful:
- associative discrimination: when a worker is treated badly because they associate with another person who possesses a ‘protected characteristic’ (such as disability)
- harassment by a third party: employers could now be liable for harassment of their staff by people they don’t employ themselves, such as customers
- indirect discrimination: which could occur when you have an in-house policy that applies to everyone but in practice disadvantages a group of workers.
The Act also makes various changes to victimisation and harassment rules. There aren’t any changes to maternity/parental leave rights at the moment, although some legislation may appear for April 2011.
Even if this doesn’t affect you right now, you may want to cast an eye over your HR policies to get rid of mentions of old rules – law like the Disability Discrimination Act will no longer exist (although its obligations do). Acas has produced a crystal-clear one-page chart that sets out – in glorious technicolour - all the employer’s responsibilities under the Act.
Changes to the the national minimum wage (NMW) are even more straightforward – all the rates increase a little, and there is a new rate for any apprentices you have. From 1 October, you should pay your NMW staff:
- £5.93 an hour to workers aged 21 and over
- £4.92 an hour to workers aged 18-20
- £3.64 an hour to workers aged 16-18
The main rate - £5.93 – now applies to workers aged 21-plus (was 22-plus). Apprentices - who previously didn’t qualify - should now be paid at least £2.50 an hour if they are under 19, or 19 and over and in their first apprenticeship year.
And that’s it – some businesses in the pub trade, recruitment agencies and modeling agencies will need to tweak their working practices, but overall, this CCD is, mercifully, legislation-light for small firms.
Avoid April Showers
March 24, 2010
Your business may have HR policies and procedures in place already; but are they current and relevant? Each April brings with it annual legislative changes which could result in your business missing a trick if you’re not prepared for them.
Here are the five changes that your business needs to prepare for now:
1. Allowances
From 4 April 2010 allowances for statutory maternity pay, paternity, adoption pay and maternity pay are changing from £123.06 to £124.88 per week. Allowances for statutory sick pay of £79.15 per week remain unchanged this year.
The Government has announced that although it is committed to the principle, it will not go ahead with the planned extension of statutory maternity pay from 39 to 52 weeks this April.
2. Fit Note Scheme
From 6 April 2010, as an employer you will no longer be presented with the traditional GP sick note setting out the reason for an employee’s absence. Instead, GPs will produce “fit notes” which will focus on the work that an ill person is able to do, rather than what they are unable to do. Again, Business Link has a helpful section of information for employers on the fit note scheme and an example fit note template is available here.
There are differing opinions on whether the new system will be more or less beneficial to employers; we will have to see how it plays out. For the time being, as an employer, you will need to acquaint yourself with the new fit note form, know how to respond to it, and adjust your absence management procedures to ensure that any adjustments recommended by a GP in a fit note are considered. You should also maintain a record of the reasons for any non-implementation of recommendations.
3. Right to Train
On 6 April 2010 the new Employee Study and Training Regulations come into force and give a new right for employees to request time off from work for training or study. Initially, this right will only affect employers who have over 250 employees, but by 2011, the right will extend to all employers. Essentially, the regulations set out how an employer should respond to such requests.
My advice would be to ensure your company has a policy to reflect this new right which should include how and to whom in the company the request should be made, who will consider the request and in what timeframe. I recommend maintaining a record of requests together with the reasoning behind any approvals or rejections in order to ensure consistency of process, and to demonstrate equality and fairness in your workplace.
For more information, Business Link provides an overview of the detail which you need.
4. Paternity Leave
New laws mean babies due next spring may see more of both parents. Rules that come in on 6 April this year, but apply to families with babies due from 3 April 2011, allow dads who satisfy certain conditions up to six months’ paternity leave – provided the mother has returned to work.
The idea is to give families more choice as to how they balance work and childcare; paternity leave entitlement currently stands at just two weeks. The Government is expected to issue guidance before April 2011 as to how employers can best manage and administer these new regulations, so you do have some breathing space.
However, now is the time to take stock of your company’s current paternity leave policy and amend accordingly, consider whether you are willing to introduce additional flexibility and enhanced rights into your workplace if it is a means for you of attracting and retaining the right employees, review your existing structure and ensure managers are prepared for the new entitlement to take effect.
Don’t forget to also update your existing maternity leave policy to reflect the mother’s ability to share leave with the father.
5. Equality
On the horizon, but awaiting Royal Assent at the time of writing, is the Equality Bill. Royal Assent for this Bill is expected in April 2010, and the Act will then be due to take effect in October 2010. There is some discussion as to whether the impending general election will disrupt the Bill’s timetable, but there seems to be cross-party support for it and at this stage there is no indication that the Bill’s progress through Parliament is being delayed.
The purpose behind the Bill is to “modernise and streamline discrimination legislation” and “make Britain stronger, fairer and more equal”. As such, it’s a biggie and it will have an impact on your business. The scope of the Bill is very broad, and this post will not set out the detail here.
My immediate advice is that, if you haven’t already, you need to get up to speed with the Bill. As an initial introduction to this mammoth piece of legislation, the Government Equalities Office has a very helpful set of resources, links and bullet-point updates which are easy to digest. Again, with this Bill, there is some breathing space prior to its introduction, but not much, so I’d strongly recommend that you start to conduct an equality audit across the range of your HR policies to ensure compliance with the Act when it comes into force.
6. Annual Healthcheck
Alongside all the above, changes in your business over the past year and expectations of your staff in the future prompt the need for an annual review of your policies; so I always recommend an annual healthcheck of policies, processes and standard employment contracts.
The first quarter of every year is a perfect opportunity to review HR policies and practices in your business. So, to avoid showers this April, spring-clean your HR policies now.
It's kicking off for employers...
March 10, 2010
2010 has come round pretty fast, and business owners are getting ready to deal with workers’ requests for time off to watch World Cup matches on TV - or even go to South Africa. Can you remember all the legal rules about holidays?
The bottom line is that workers are entitled to 28 days’ paid holiday each year (a pro-rata proportion for part-timers and temps), and entitlement starts from day one of their employment. But job contracts and policies may allow your staff to carry holiday forward in some circumstances, and new case law says sick workers have the right to carry holiday forward in some circumstances, so some employees may be entitled to more than 28 days.
Contracts or policies can limit when employees can take holiday – provided they have taken their 28 days by the end of the holiday year. For example, employers may be able to insist they take part of their holiday on bank holidays and/or during an annual summer close-down, and stop them from taking holiday during peak periods or when the firm would otherwise be short-staffed – proper, objective grounds. Think about emailing employees to remind them when you can refuse holiday requests. Some employers also set limits on how long each holiday can be - for example, that no holiday can last more than a fortnight.
Contracts or policies may set out how much notice employees must give you of their holiday plans. If not, the notice an employee gives has to be twice as long as the holiday they are asking for. So two days’ holiday requires four days’ notice.
If an employer refuses proposed holiday dates they have to do so in writing, and the length of notice of the refusal must be at least as long as the holiday requested – for example, at least two weeks before the worker’s holiday is due to start if refusing a two-week holiday.
Employers often have a system for determining priority if there are holiday clashes or if they’d otherwise be left short-staffed. This needs to be fair and non- discriminatory system, which can be as simple as ‘first come, first served’. Favouring employees with longer service could discriminate against younger employees who have not had time to build up service, and may also be sex discrimination because (on average) women have shorter periods of service than men.
That’s holidays sorted – but how do you stop workers just calling in sick on their country’s match days - a particular problem with this World Cup because South Africa and the UK are on similar time zones, so matches will be on during the working day? Answers on a World Cup ticket please!
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