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Dismissing Within Two Years

So you’ve got an employee with less than two years’ service and things aren’t working out and you want to dismiss them. Just a straight forward case of calling them into a meeting and letting them go right? Well, not always.

We’re used to referring to employees with less than two years’ service as having accrued no employment rights, but situations aren’t always that straight forward and you may need to consider best practice as well as what is and what isn’t permissible by law.

Has the employee passed their probation period? Probation isn’t a necessity in law but if you use it, and we recommend that you do, you should consider why you’re getting rid of someone if they have proved their capability. Has there been a lack of training that has led to underperformance, or are they now under-challenged and bored? Take a look at your own potential failings before simply putting the blame on the employee or you’ll just be facing the same issues with his or her replacement.

Does the employee have any protected characteristics? Of course this shouldn’t be an issue if you have managed them properly and you have a genuine underperformer who needs to go. But don’t let it become an issue or something that can be used against you, especially if the protected characteristic, for example the employee’s sexuality or a disability, has only come to light some time after their employment has started. The burden of proof will be on you to show that the person in question was dealt with exactly as any other employee would have been dealt with.

How close is the employee to his or her full two years? If their notice period takes them over or dangerously close to their full two years, their dismissal may be seen as unfair by a Tribunal if the dismissal was appealed or challenged. If there are genuine capability or behavioural issues, why haven’t they been dealt with before instead of leaving matters to the last minute?

We fully support businesses in the decisions they need to make to ensure that the organisation thrives. We’re also very conscious however that the wrong decision can expose a company to unnecessary risk, so it’s worth taking a step back and reflecting on some of those decisions that can have a nasty habit of tripping you up, before you make them.
If you’re faced with a decision like this one, a phone call to our help line on 01452 331331 could be cheap way of putting your mind at ease and making sure you’re not exposing your company to any risk.

19 January 2018, 14:34

Avoiding Tribunal Claims

Here’s an unpleasant truth. You can’t stop (ex) employees lodging Tribunal claims. We’ve got some guidelines below on how to minimise them occurring, but there’s never a guarantee that you won’t be on the wrong end of a claim.

When Employment Tribunal Fees were introduced in 2013, they seemed, to us at least, to be a great idea. They meant that disgruntled employees had to be really quite confident in their chance of winning their case if they were going to risk what was a meaningful up-front expense of up to £1,200. Abolition of Tribunal fees last July, four years after their introduction, has put us back in the situation where employees will have nothing to lose if they decide to enter a claim; potentially reversing the 75% drop that we saw in Tribunal claims after fees were implemented.

Probably the main issue that this ‘nothing to lose’ position presents for employers is that the costs involved in defending  a Tribunal claim, including the time and aggravation to do so, makes it much less troublesome to simply come to some agreement and offer a cash settlement. Just responding to an ET1 can cost around £1,500 in solicitor fees. Of course claimants, and their advisors, know this.

Paying off an ex-employee is a slippery slope however. Once you set the precedent, it’s easy to get a reputation and become a target for further claims. We need to minimise the probability of a claim arising so make your cases watertight.

Processes & Procedures: If an employee is dismissed, there are recognised procedures that you must follow to make the process fair such as a proper investigation followed by a disciplinary meeting followed by an appeal. Even if your reasons for dismissal are absolutely clear cut, failure to follow the correct procedure immediately presents the employee with a case for unfair dismissal.

Records and Notes: Make sure that all meetings are recorded in writing and that all parties agree that notes are an accurate reflection of discussions held. Obtain signatures as evidence. It’s normal to have a note-taker but if you want to make a recording of a meeting you’ll need agreement from all parties. Your notes are your evidence which you must have in place to support your case.

Robust HR Practices: Constructive dismissal arises where an employee resigns due to treatment at work making his or her continued employment untenable. An un-consulted change of terms and conditions could amount to this. There can sometimes be a temptation to circumvent proper HR practices because they seem tedious and unnecessary; don’t be tempted. Following the proper procedure now will save you unnecessary aggravation in the future.

Rigour: Letting staff ‘get away’ with poor performance, bad time keeping, a bad attitude etc., will just make things harder in the long run as ensconced behaviour becomes acceptable and your attitude towards it is seen as custom and practice. Don’t leave any issues undealt with in the hope that they will improve. They won’t, and when you find yourself forced to take action it will be difficult to make anything stick. I can hear the cries of “victimisation!” now.

Consistency at all Times: Tribunal claims can arise if job applicants feel they have been dealt with unfairly; so you could get a claim from someone who isn’t even an employee. Ensure you apply all of the above throughout your organisation and working practices.

We offer a comprehensive Personnel Risk Assessment which looks at your current working practices and identifies any risks. For further information about this service, call us on 10452 331331 or e-mail info@hrchampions.co.uk

12 January 2018, 13:32

No Discrimination Claim for "fat, ginger, Pikey" jibe

A salesman who bought a claim for discrimination after being called a “Fat, ginger Pikey” by his boss, has lost his case at Employment Tribunal. David Evans, who worked at a software company claimed that he suffered abuse and name calling, including “salad dodger” and “fat Yoda” claiming racial harassment.

Mr Evans claimed that his was victimised by his former boss because of his race (he said he was raised by a Traveller family) and because his diabetes and underactive thyroid contributed to his weight gain. Because Mr Evans had waited some eight months before bringing the harassment claim, the Tribunal decided that there was no case to answer as he had clearly not taken offence at the time of the alleged name calling; which included “jellied eel salesman” and likened him to Gimli, a dwarf character from The Lord of the Rings.

The Tribunal looked at the context of the claims and agreed that whilst the reference to “fat, ginger Pikey” could have been harassment, that it was not. There was a culture of ‘banter’ at Mr Evans workplace, in which he and his work colleagues participated. It was reported that MR Evans often used the ‘c’ word which led the Tribunal to conclude that he was not the sort of person to take offence or to dwell on an insult whereby it became distressing.

Mr Evans bought the claim after being dismissed from his job for poor performance, however his employer was able to prove that his treatment was consistent with other employees who failed to make sales.

Mr Evans says he will appeal the Tribunal’s decision.

12 January 2018, 13:26

Could this be Your Business

Our funded training provision continues into 2018 and we still have opportunities for businesses in Gloucestershire, Worcestershire and Swindon & Wiltshire to train and upskill employees. We’ve already engaged with nearly 800 delegates across our range of ILM accredited short courses. Here’s an example of how one company has utilised the funding; training their entire workforce for zero cost. Could your businesses do the same?

The entire company of 54 employees undertook the ILM Level 2 Certificate in Customer Service and Sales Skills in four cohorts of 10-12 delegates. This course gave delegates an understanding of sales techniques and how to develop their customer service and negotiations skills to secure repeat business and so enhancing the company’s profile. The training was tailored to meet the client’s specific needs and client base, incorporating the company’s customer service ethos throughout the material.

In addition, 11 delegates have commenced the ILM Level 2 Certificate in Leadership and Team Skills. Delegates are either current or aspiring Team Leaders or Managers who’s aim is to develop their leadership skills with an intensive look at both themselves as leaders and their impact on their teams. Their objectives are to increase productivity and promote team motivation.  

A further seven members of staff will be attending the ILM Level 3 Certificate in Performance Management in March/April 2018. This course will help them gain a further understanding of the managerial role in the performance of their team and how they can coach and develop employees. By keeping employee engaged, they will maintain high performance and efficiency in their teams for the business overall.

Finally, four members of the company’s senior team have commenced the Level 4 Certificate in Leadership and Management.  On this course, delegates will adopt a more strategic approach to leadership, considering how their departmental responsibilities align with the plans of the organisation as a whole. They will consider short, mid and long term views of the company’s future skills and operational requirements and the development needs of employees.

Talk to us about utilising the available funding to develop a training plan for your organisation whilst it is still available. Call 01452 331331 or e-mail info@hrchampions.co.uk

05 January 2018, 13:37

Managing Employee Perfomance

An improving economy and the effects of Brexit on foreign workers coming into the UK has made it increasingly difficult for businesses to recruit good quality staff. Employers are therefore driven to maximise the productivity of their existing employees so carrying underperformers becomes intolerable. Here are our top three tips for performance managing your staff, enabling you to retain and reward your good workers and safely exit the underachievers.

1. Clear Job Descriptions: Employees need and respond to knowing exactly what is expected of them. Ambiguity or vagueness will enable staff to float between tasks, never really achieving anything. Clear and defined job roles will give them a sense of purpose and a structure that they can be held accountable to. By all means include a clause that allows you to ask more of them but fundamental key roles and responsibilities are a must.

2. SMART Objectives and Targets: The acronym SMART which stands for Specific, Measurable, Achievable, Relevant and Time-bound should be exercised against just about every task or target you set for your staff. Without it employees can’t be held to account. Increase sales! By how much? Paint that wall! By when? Improve customer Service! Compared to what? Appropriate objectives and targets should be the cornerstone of your performance management strategy.

3. Regular Reviews: Performance must be regularly reviewed to measure employees’ outcomes against their targets and objectives. Overachievers might need a reward such as praise to keep them motivated or higher targets to keep them challenged and aid retention. Underperformers might need to be offered training or support, or other action. Reviews don’t have to be onerous. Five minutes might be enough. Make sure though that they are regular and appropriately frequent and use them to set new objectives.

Bonus Tip. Consequences: If someone isn’t meeting expectations there needs to be consequences or you and your team will just continue to carry them leading to disgruntled good workers who willreduce their own performance to match or simply leave. A disciplinary route might be appropriate which could ultimately end in dismissal. Use the above tips to keep it a fair process and to prove you acted appropriately in case of a Tribunal claim.
If you need further help and advice with performance management talk to us by calling 01452 331331 or e-mail info@hrchampions.co.uk

05 January 2018, 13:18

The Trouble with Elves & Reindeers

#HRFridayFact: Elves & Reindeer have specific working patterns so make sure that their worker status is correctly stated on their contracts.

Like some of our clients, Santa Claus has a very erratic work schedule that is highly seasonal. Consequently, he needs to ensure that the terms and worker status for both Reindeer and Elves is properly applied to avoid ending up with an Employment Tribunal claim.

With just one evening’s work per year, the reindeer should really have zero-hours contracts as this would allow them to seek other work from other employers when Santa has nothing for them. The problem with this however is that there is no mutuality of contract, meaning the reindeer are not obliged to accept any work that is offered.

This could leave Santa in a pickle if the reindeer choose not to accept the one night’s work per year that he offers and instead decide to stick to their off season jobs of posing for photographs and being fattened up to provide dinner for hungry Icelandics.

Taking the reindeer on as self-employed workers gives rise to the same issues as the zero-hours contract option whereby they don’t have to accept the work. Santa’s only real choice is to offer his reindeer a very generous 364 days holiday per year.

As far as the elves are concerned, Santa most probably has a core team of elves making toys to meet anticipated demand. As Christmas approaches he will need to make an assessment of how many children have been naughty and nice and whether an increase in production is required. This may lead to Santa having to take on more elves to meet demand.

He could take on extra elves on temporary or fixed term contracts and could do this either directly or through an employment agency. Taking on (s)elf employed workers could also be an option. Santa may prefer the authority that employer status gives him but he should remember that employees have access to full benefits from day one such as sick pay.

Agency elves have access to certain benefits immediately, such as access to parking, the staff canteen or crèche facilities and will gain rights to full benefits after 12 weeks in the same role. If Santa opts to engage self-employed elves on a contracted basis, whilst there are no employee rights to worry about, he still needs to be conscious of Health & Safety, HMRC issues like IR35 and discrimination.

Employer status also means Santa can dictate when his employees take their holiday; so he is within his rights to order all employees to take their holidays together or within a certain time frame such as in the summer when there will be little impact on toy production.

With the turmoil over employee status in the Gig Economy jobs with companies such as Uber and Deliveroo, we recommend that Santa steers clear of any such arrangements.

Finally, Santa may wish to consider the effect that the National Living Wage will be when it comes into force on the 1st April next year. The increase to £7.83 for over 25 year olds may have quite an impact on his wage bill which may lead to an increase in toy prices and may also result in some redundancies being made.

We don’t usually get many enquiries regarding elves and reindeer but if you do have an issue please contact us on 01452 331331 or e-mail info@hrchampios.co.uk

Otherwise, have a very merry Christmas.

14 December 2017, 15:47

Staff Arriving for Work Under the Influence

#HRFridayFact: Staff turning up unfit for work due to excess alcohol may be a risk to others an dealt with under your disciplinary policy

The festive season may give rise of incidents where staff turn up for work still under the influence of alcohol from the night before. We recommend that employers clearly state in their staff handbook how turning up for work drunk will be treated. Gross misconduct is justifiable, particularly if driving or operating machinery is part of the worker’s job.

Most employers strictly prohibit the drinking of alcohol during or before work. It unusual for even moderate alcohol consumption to be permitted, for example during lunch breaks; although some alcohol industry related employers might take a different view.

If a member of staff turns in for work and is suspected of being under the influence of alcohol, the employer should interview the employee to try to establish the employee's condition. Reasonable belief can be an adequate reason to send the employee home but if the incident is likely to escalate to a disciplinary that has potential to end in dismissal, the employer may want more evidence.

An electronic breathalyser may be a good investment for businesses that employ staff for whom driving or operating machinery is part of their main duties. To use it however there should be a clause in contracts or the Staff Handbook which enables the employer to breathalyse employees if they are suspicious an employee is drunk

If an employee is sent home, an investigation should follow with witness statements as part of a disciplinary process. Remember your duty of care, and don’t let your employee drive him or herself home.

Failing to take a robust stance with employees could potentially lead to a case of corporate manslaughter if a worker was allowed to continue working despite suspicion of being drunk. Remember, directors hold liability for this.

As usual, consistency is key. Anyone suspected of arriving at work drunk should be treated the same as anyone else suspected of the same.

For help and support with issues such as this or for a review of your company documents, call us on 01452 331331 or e-mail info@hrchampions.co.uk.

05 December 2017, 10:27

Christmas Party Time

#HRFridayFact: Your company Christmas party is an extension of work so staff should maintain the same standards and behaviour

Its that time of year again when you’re asked to choose between turkey, beef or butternut squash for the work Christmas party. So here’s a timely reminder that even when it’s held off-site and outside normal business hours, your work’s Christmas Party is deemed as an extension of work.

Employers must continue to take their responsibilities towards their employees seriously, particularly when your employees are together in an out-of-work environment and alcohol plays a part.  

Recent, high profile revelations of unwanted sexual harassment has made it more pertinent than ever to ensure your staff fully understand that behaviour that is considered to be unacceptable in the workplace, will be treated with equal gravity if it occurs at the party. This includes sexist remarks or intimidating conduct.

Its right to reward your team for their hard work throughout the year, and Christmas presents an obvious opportunity for this. It makes sense to take advantage of the festive atmosphere and a party or event can also work as a team building exercise.

Follow our top tips to help ensure your Christmas event goes without a hitch:

  • No-one wants to be a killjoy, but a reminder of the expected standards of behaviour is a good idea. An informal word from a line manager to remind staff that they will still be under work ‘rules’ will probably suffice
  • Make sure that anyone who chooses not to attend the party for whatever reason isn’t disadvantaged. If partygoers get extra time off work make sure that non-partygoers get time off too, even if it’s taken at another time
  • Whilst Christmas is a Christian Religious festival, the Christmas party should be seen as morale booster or team building event whereby employers thank their staff for their hard work and loyalty. As such your celebrations should be designed to include all staff and so should cater for different religions and beliefs
  • Alcohol is likely to feature in most parties and with it comes its own raft of complications. Making soft drinks available should go without saying but if your venue of choice is a pub, its association with alcohol may prove offensive to some
  • Think about briefing speakers or entertainers beforehand to ensure that their material is suitable and won't cause offence or breach the Equality Act 2010
  • People can become less guarded about what they say or do after a drink or two. Even if it’s not intended to be malicious or offensive, a throwaway comment or action by a member of staff can still be received as such by another. As an employer you have a duty of care to protect your staff from inappropriate behaviour from other staff
  • Consider the risks attached to accepting offers from employees to provide food; not just food poisoning but religious and allergy issues too. Sticking with external venues and caterers may be a safer option
  • Your duty of care should extend to getting staff to and from the venue safely. This may mean organising taxis or buses so that no-one is tempted to drink and drive
  • You may want to time the party to minimise impact on workers the following day. If you employ drivers for example, a Friday night party will mean staff are less likely to need to drive the following morning when they might still be under the influence of alcohol
  • If you plan to dock worker’s wages for failing to turn up for work or for turning up late, make sure that clause exists in your staff handbook or contracts of employment or you may expose yourself to a ‘Breach of Contract’ claim

Despite these considerations, remember to enjoy yourselves and have a good time; which will be easier to do if your party runs incident free.

For support with implementing anything mentioned here, or for help dealing with the aftermath of your Christmas Party, please call us on 01452 331331 or e-mail info@hrchampions.co.uk

01 December 2017, 14:44

Time off Work for the School Play

#HRFridayFact: The School Nativity or seasonal play isn’t an emergency so employers are not obliged to give staff time off to go and watch

As Christmas rolls around, employers are likely to be asked for time off by some of their employees to enable them to go and watch their child or grandchild perform in a school play. Like any other request for time-off, employers are under no obligation to grant it.  

Employers must allow staff to take reasonable time off for emergencies involving dependants. This normally refers to children but could also be an elderly or disabled relative for whom the employee was a carer or held responsibility for welfare. Any time taken off in emergency circumstances does not have to be paid.

A Nativity or seasonal play isn’t an emergency so doesn’t fall under these rules. However it may seem harsh and uncaring not to allow the time off; particularly when, by virtue of the fact that it is a Nativity play, it would be held during the season of goodwill.

Options for how the time-off is taken will largely be either as holiday, unpaid leave or granted as discretionary paid leave. As an employer, whichever policy you choose, we strongly recommend that you apply it consistently across the workforce. This will help prevent claims of favouritism or worse, discrimination.

Unlike emergencies, events such as school plays and sports days are known about in advance and so can be planned for. With this in mind, an employer may decide that staff must take a holiday day for such events; or half-day if you allow this.

As school plays probably result in just a few hours absence it might be unreasonable to break holiday down to hours to accommodate them and so discretionary paid leave might be an easier solution. Or you could ask the employee to make the hours back at another time.

Depending upon the profile of the workforce, a business might have just one or two employees that ask for a few hours off for Nativity duties. As the impact on the business is likely to be negligible, the absence may be simply overlooked. However it may disgruntle other employees if this time off is paid and no equivalent time off is offered.

Also, as your employees’ children will be of differing ages, make sure that your decisions are consistent from year to year.

For some businesses, particularly retail and leisure, The festive season is the busiest time of year and can often be a period where no leave is allowed at all for anybody.

Ultimately, consistency is key. So to re-iterate, whichever policy you opt for when it comes to ad-hoc or discretionary leave, keep it consistent across the workforce to maintain morale and harmony. Don’t be drawn into favouring any particular reason for requesting leave.

Your leave policy should be available in you staff handbook and if you would like some help or support with this then just call us on 01452 331331 or e-mail info@hrchampions.co.uk

24 November 2017, 11:26

Payslip Rules

#HRFridayFact: Providing employees with a pay-slip is a legal requirement. Electronic versions are acceptable if staff can access them

The legal terminology for a pay-slip is an ‘itemised pay statement’ and employers must provide one for all employees either on or before each pay day. You can provide pay-slips electronically, but a hard copy must be issued if an employee cannot access an electronic version, eg. they don’t have an e-mail address.

Pay statements must accurately include the amount of gross pay the employee is due to receive, and where appropriate, what that pay is made up of eg.

  • Gross pay
  • Statutory Sick pay
  • Statutory Maternity Pay
  • Commission or Bonus

If employees earn a basic and a variable commission, we recommend that these are itemised separately, particularly as commission must now be included when calculating an employee’s holiday pay.

Of course deductions must be itemised also, and these include variable deductions; amounts which could change each month such as

  • Income tax
  • National Insurance
  • Pension contributions

And fixed deductions; amounts that usually remain consistent such as

  • Union subsidies
  • County Court issued attachment of earnings

The amount of take-home or net pay must also be given as must any parts of the net pay amount that will be paid via different methods, eg. cash and bank transfer.

If a disagreement arises over pay then the pay statement will be the go-to document for the basis of a discussion. If the disagreement can’t be resolved informally then the employee should raise a written complaint or grievance that could go as far as Tribunal in the worst case.

Most payroll software manages pay and deductions, including the production and sending of pay statements. However it is up to employers to ensure that details and parameters are correctly entered into the payroll system. Changes to taxation rates or minimum wage rates will usually be updated automatically through online updates these days, but non-standard employee tax codes will probably have to be amended manually.

Paying employees in exchange for work is the basis of all contracts of employment so make sure that you are fulfilling your end of the deal.

For help and support with employers’ obligations to employees call us on 01452 331331 or e-mail info@hrchampions.co.uk

14 November 2017, 16:13