Unfair Dismissal (1)
December 27, 2008
Employment law can be a challenging subject for employers to deal with, and one very important piece of legislation to get your head around is unfair dismissal. Handling dismissals wrongly can lead to substantial losses for companies in employment tribunal claims, as well as having a negative effect on the company’s reputation as an employer, since employment tribunal details are publicly available. I always think about how bad it would be to have a case your company was involved in published in the press, or even in an employment law text book!
Employees have the right not to be unfairly dismissed by their employer. This law is part of the Employment Rights Act 1996. A number of factors apply to whether a dismissal is unfair, and the following few posts will look at these factors.
1. Does the employee qualify to claim?
Only employees have the right to claim unfair dismissal, i.e. those who work under a contract of employment. This in theory means that self employed contractors and other seemingly non-employed workers will not be eligible for the right not to be unfairly dismissed. However care should be taken with this assumption, as there have been many cases of people working for a company without an employment contract successfully claiming employee status and then going on to claim unfair dismissal.
Only employees with one year or more continuous service qualify to claim unfair dismissal. This is why many employers dismiss employees in their first year of service without following the statutory dispute resolution procedures. However care should be taken with this as sometimes contracts of employment include the disciplinary and dismissal procedures, thereby making them contractual. This means that an employee who was dismissed in their first year might not be able to claim unfair dismissal but could try to claim for breach of contract. Another consideration with this is whether there are any potential discrimination issues with the dismissal, as there is no continuous service requirement for a discrimination claim. Something else to watch out for is if the employee is nearing their one year anniversary with the company and has a notice period. The date of termination will be the final day of service even if the employee is paid in lieu of notice, not the day they are dismissed. Obviously if they are dismissed for gross misconduct then this isn’t an issue.
The next post will look at whether a dismissal has actually taken place, and whether the dismissal is fair.
What do you do with client gifts?
December 23, 2008
This time of year always poses a bit of a problem for HR professionals when some employees are sent gifts from clients or suppliers, but others are not. Whilst it isn’t ideal to become the Christmas Scrooge and nobody wants to deny staff from being thanked by their clients, receiving gifts from clients does pose ethical questions about the potential purpose of the gift or the future repercussions of having accepted something from a client.
One of the main reasons that gifts should not be accepted by individual employees is that it tends to be the client-facing employees that are sent the gifts, e.g. the sales or account management teams. However normally there are many different ‘behind the scenes’ employees that contribute to the products or services provided for customers, and it isn’t really fair for just a few members of staff to benefit.
Many companies include a section in their policies and procedures on employees accepting gifts from clients, stating that gifts of money should never be accepted, and that gifts such as promotional clothing, wine or food will become the property of the company and should be handed in. This is what I am doing in my company; we have collected all the gifts sent in and will be carrying out a raffle later today to fairly hand out the copious bottles of wine that have been sent. I think this is the fairest way to manage the issue of client gifts.
Research shows positive attitudes towards new pensions plans
December 10, 2008
Back in February I wrote about the pensions reforms due to be implemented in 2012. The new ‘personal accounts’ scheme will automatically enrol workers over the age of 22 and earning at least £5000 into a personal pension account, unless they are part of a qualifying employer pension scheme. People will be able to opt out, but it is hoped that the automatic enrolment will encourage people to continue to save for their retirement. There will be a minimum contribution of 4% of the worker’s salary, and the employer will have to contribute a minimum of 3%, with a further 1% paid in by the Government as tax relief.
Today the Department for Work and Pensions is publishing research that has revealed strong backing for the pensions reforms. 70% of respondents that will be eligible for automatic enrolment thought that they will save for their retirement with the scheme when it is introduced. The research found that people are well aware of how important it is to be in a pension scheme, and look forward to being able to benefit from the new scheme.
Get ready for the new code
December 1, 2008
A few weeks ago Business Secretary Lord Mandelson approved the revised ACAS code of practice, which is to be brought in on 6th April 2009, to replace the current code and statutory dispute resolution procedures, which is being repealed next year.
The new code is aimed at being a more straightforward way of dealing with workplace disputes, and will hopefully reduce the amount of disputes reaching the Employment Tribunal, which was also the aim of the statutory procedures. Unfortunately the procedures, introduced in October 2004, have only made things worse by over-complicating the system and meaning that if the procedures aren’t followed to the letter, seemingly fair dismissals can actually be found to be unfair for procedural reasons.
The new code of practice won’t be statutory, but tribunals will use it to assess the process followed in handling a workplace dispute, and if an employer has unreasonably failed to comply with the code, the tribunal will be able to uplift any awards made by up to 25%.
Whilst this is a good move and I’m looking forward to being released from the stressful shackles of the statutory procedures, it’s going to be a big job to ensure everyone involved in workplace disputes is made aware of and trained on the new code of practice. The change in process and legal system will mean that the last four years of case law will be practically worthless and we’ll have to wait and see what new tribunal cases bring to shape and further develop the new code of practice. This is something all employers will need really good legal advice on, and I would strongly urge HR professionals to seek legal support and training in time for the changes in April next year.
Preparing for Maternity Leave
November 19, 2008
Maternity leave has been a massive part of my job this year with a large number of employees expecting.
My to-do list has been bombarded with duties including risk assessments and processing leave dates and has left me with little time to do much else. However nice it has been, having baby shower invitations flooding in, the work that comes with it has been tough.
The increase in my workload has mainly come from ongoing risk assessments that i have had to carry out. It is my responsibility to make sure that a risk assessment is conducted for all employees. This should include specific risks to females of a childbearing age who could fall pregnant and any risks to new or expectant mothers. It is important that you liaise with the employee and ask them for any information that has been received from their doctor/midwife that could impact on the assessment.
Some of the common risks i have come across are:
- Carrying/lifting of heavy loads
- Work-related stress
- Long working hours
- Workstations and posture
As a number of people are taking maternity leave at around the same time, i have had to pan temporary cover too. This has been time consuming, although, it has been made a little easier with the increase in redundancies which has resulted in an increase in candidates looking for work.
Are you in the same boat and are having to deal with a number of employees taking maternity leave? If so, i would be interested to hear how you are managing.
Bullying in the workplace has reached ‘disturbing’ levels
November 13, 2008
It has been reported that 90% of workers are being bullied in the workplace after a survey done by the Andrea Adams Trust.
The survey, done by over 10,000 employees found that an astonishing 92% felt they were currently being bullied, half of them by their immediate manager!
More than half of the employees said that the bullying was a ’serious problem’ with 47% claiming they have made a formal complaint but no procedures had been followed to resolve the problem.
Lyn Witheridge who is the founder and CEO of the Andrea Adams Charity has said:
“These reported cold, hard figures have come as a complete shock and are very disturbing.”
“These figures indicate that employees are gaining the courage to speak out against one of the most destructive forces at work today.”
I am really shocked to see that the percentage is so high. With the economic downturn, this is going to add greater stress and strain to workplaces which could result in the bullying becoming worse.
It is important that employers look into their policies and make sure that as soon as bullying starts in the workplace, it is stamped out immediately.
Have you ever had a case of bullying in your organisation and if so, how did you try and resolve the issue?
Preventative absence management
November 6, 2008
I was chatting to my friend the other day and she was having an absence problem with one of the new employees she manages. The employee had been absent through illness for around 40% of the time they had been employed, for a number of different reasons. However the employee was performing really well when they were in work, so my friend was reluctant to dismiss them, even though they were in the very first stages of their probationary period.
My friend was convinced that the problem with the employee was that they did not look after themselves properly. The person had been told by the doctor that they had a low immune system and this was probably contributing to their seemingly endless stream of chest and throat infections, but my friend knew the employee was out partying most weekends and could see their poor diet every day in the office.
I think this is a really interesting subject, and there has been a lot of coverage in the HR world about well-being and wellness as an alternative and proactive approach to sickness absence management, as opposed to the reactive monitoring and management techniques such as return to work interviews. I found a really interesting article on the People Management website from a while back which commented that clearly the numerous new ideas that companies are implementing such as in house relaxation and healthy eating campaigns are not having a massive effect on sickness absence rates. The article suggested that as with most new policies and procedures, having something available is a world away from actually seeing habits change and policies being implemented. The key thing is encouraging employees to take responsibility for their own health and well-being, and also to give them the possibility of doing so. This means managing employees in a way that stress is reduced, they are able to take breaks when needed and are able to access refreshment when required.
The notion of ‘self-care’ in and out of the workplace is based on building individual capability and responsibility for the choices in lifestyle, diet and exercise. There are many channels through which this can be built – such as performance management structures, staff and team meetings, introducing the ideas at induction stage, and through existing communication channels such as a company intranet or notice board. This should certainly form part of return to work interviews, which is what my friend actually did with her employee. The discussion covered the employee’s lifestyle and diet habits, and how this could be affecting their health. My friend also made it clear that this was important because the employee risked losing their job due to excessive absence, and so far the discussion seems to have worked, although it’s early days yet.
Employee absence can be managed in so many different ways; some are procedural and fall into the ‘monitoring’ class of techniques. Others are more preventative, and if organisations can encourage their employees to take more responsibility for their own well-being, this is a positive addition to the range of absence management techniques already utilised. With a complex subject such as sickness absence, I think the more approaches adopted, the better the outcome will be.
Is your office secure?
November 5, 2008
HR have a massive part to play in making sure that the organisation they work for complies to the Data Protection Act.
With the numerous draws and cupboards full of confidential employee information it is extremely important to make sure that this is kept secure.
The act states that anyone who possesses personal information must comply with 8 principles. These are:
- Fairly and lawfully possessed
- Obtained and used for limited purposes
- Adequate, Relevant and not excessive
- Accurate and kept up to date
- Kept for no longer than necessary
- Processed in accordance with your rights
- Secure
- Not transferred to other countries without protection
Keeping information secure is just as important as keeping the building that information is stored in secure! Imagine if your office got broken into? Are your employees details in a locked cupboard or filing cabinet? If not then anyone could get hold of this information.
Making sure you have a secure office is vital and should be reviewed on a regular basis. Adding cameras, security grilles and alarms is key!
When employees start with your organisation, they will expect that all their personal information and data is kept secure. If this is not the case it could lead to a number of different problems such as identify theft.
Personal mobile phone policies
October 22, 2008
We’ve had a couple of issues recently with employees using their personal mobile phones in work time, and it’s given us reason to review the way the current policy is communicated, implemented and monitored. The subject of personal mobile phones in work is likely to continue to grow, because of the continuing evolution of mobile technology and the increasing emphasis on the need to be able to communicate with anyone at any time. I’m going to sound really old now, but I remember (shock horror!) not actually owning a mobile phone, and I also remember the days before text messaging existed, yet now I’m as obsessed with checking my phone every 5 minutes as the next person. I haven’t kept up with the latest nifty applications mobile phones can offer, but with exciting new phones like the Apple iphone or Nokia 6500 Slide, it’s certain that mobile phones are a big part of everyday life, and therefore an employment issue that organisations can not ignore.
The company employee handbook in my organisation states “employees must ensure personal mobile telephones are switched off at all times during working hours”. However some managers within the company don’t mind their staff taking or making important personal calls in work time as they wish to trust their staff and feel that as long as they are not ‘taking the mick’ by spending an excessive amount of time on the phone, then there is no need to ban calls altogether. This is fine, except when you get to the situation where the manager feels that one member of staff in the team has started to take the mick, and it’s hard to address this because the individual could argue that everyone is doing the same thing, so where’s the difference? It’s not easy to determine an acceptable level of personal calls, so the most straightforward way that’s least likely to cause issues later on is to stick to the policy and ask employees to make personal calls in breaks and at lunch time.
If the company does operate a scheme such as this, there need to be a way that family members can contact the employee in the case of an emergency, so that they can still be contacted if their phone is switched off in work time. This could be part of a new employee’s induction; when the mobile phone policy is explained to the employee, ensure they are told to give the work number to their next of kin, but that this is to be used only for emergencies and not just to phone up for a chat!
If you have had any issues with employees making excessive personal calls at work, let me know.
Flexible working right might not be extended
October 20, 2008
Remember the outcome of the review of the right to request flexible working that was carried out by Immelda Walsh? It was decided that the right would be extended to parents of children up to the age of 16, and was due to come into effect from April next year. Well, today’s news has cast doubt over whether this change will actually take place.
It has been reported that Business Secretary Lord Mandelson is looking into all legislative changes that are due to come into force, to review whether any of these will have a further detrimental effect on the economic problems the country is facing.
At the time of the review and the recommendation to extend the request, many small business owners and managers criticised the change as it was seen as potentially damaging to companies as they try to cope with an increase in requests. With the impending ‘recession’, this argument could be seen as even more critical as small businesses will be worst affected by the financial crisis.
However, the credit crisis doesn’t just affect businesses – workers are also going to be hit by the financial problems, so by taking a step back from the agreement to increase the right to request flexible working, the government will be seen as taking sides with the business community rather than the everyday worker – i.e. the voter. This is why I can’t see the change to the regulations being withdrawn. Also, as Brendan Barber, general secretary of the TUC pointed out, the right is to request flexible working and not a right to flexible working, so “if such a request harms the business, the owner can say no”.
Clearly there is a need to find ways to support UK businesses through the hard times ahead, but I can’t see a change of heart over the right to request flexible working being one of them.