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Don't Presume Guilt

#HRFridayFact: A full investigation should be a major element of your disciplinary process. Don’t presume guilt until proof is evident

As cases of sexual harassment continue to make headline news, the actions taken against alleged perpetrators seem quite severe. In all disciplinary matters, including those of bullying and harassment, employers should never presume guilt or make decisions ahead of time.

Unless an employee owns up to a misdemeanour, everyone is entitled to a full and fair hearing and investigation. Even if your evidence is undisputable, you must still go through a proper process.

There may be occasions where suspension is a reasonable step, but this is usually a last resort position and only where the alleged perpetrator is an immediate risk to the business or, in harassment cases, where their continued presence in the business may compromise a fair investigation.

Potential to bring the organisation into disrepute could also be a reason to suspend and may be what is behind the suspensions and dismissals we are hearing about in the media. While the allegations of sexual harassment are considerable, at this moment in time they do remain just allegations and dismissing on this basis is a risk.

Making decisions without due consideration makes the disciplinary processes problematic. If a dismissal outcome looks like it’s been prejudged, then it’s easy to argue that a fair process has not been followed. The employer can be subject to a claim of wrongful or unfair dismissal, even if the case is effectively sound.

The golden rules in disciplinary cases are consistency and objectivity. Always follow a fair process to ensure any outcome is fairly enforceable.

For help and support with any disciplinary and grievance issues, call us on 01452 331331 or mail info@hrchampions.co.uk

10 November 2017, 13:51

Gender Identity in Sexual Harassment Policies

#HRFridayFact: Ensure policies you have to combat sexual harassment are gender-neutral to avoid claims for sexual orientation discrimination

In light of current events surrounding cases of sexual harassment and the #MeToo hashtag stirring considerable interest, you will probably be inclined to check that your organisation’s bullying and harassment policies are up to scratch and that everyone has received appropriate training. When doing so, make sure that any references to sexual harassment don’t have a gender bias as this could be seen as discriminatory.

To be fully inclusive of all gender/sexual identities, the politically acceptable acronym is LGBTQQIAAP which can also be shortened to LGBT+. Explanations of the meaning of each letter are:

  • Lesbian - Women that are only attracted to women
  • Gay - Men that are only attracted to men. Gay can also be used to describe homosexual men and women
  • Bisexual - A person that is attracted to both sexes
  • Transgender - A person that has/is transitioning to the opposite sex that they were born with/attributed with at birth (Female to male. Male to female)
  • Queer - A person that does not want to label themselves as, e.g. Lesbian, so they call themselves queer instead
  • Questioning - Someone that is questioning their sexual orientation, unsure which gender/s they are attracted to
  • Intersex - A hermaphrodite; someone born with the genitals of both sexes
  • Asexual - A person that isn't sexually attracted to either gender
  • Allies - A straight person that supports the LGBT(QQIAAP) community
  • Pansexual - A person that is attracted to a person because of their personality and do not care what gender they have relationships with

An alternative may be to use phrases such as “inclusive” which are neutral and do not refer to a particular gender/sexual identity.

Businesses should note that allowing an environment where harassment, sexual or otherwise, occurs, can potentially expose an organisation and make them culpable to any occurrence of harassment and thereby at risk of a Tribunal claim.

Organisational culture will play a large part here so make sure that your risk is minimised by ensuring that all employees undergo Dignity at Work training and that their attendance is recorded. This will provide evidence that suitable action was taken to make everyone aware of what is and what isn’t acceptable and appropriate behaviour in the workplace and help to remove blame from the business.

For information about the Dignity at Work training that we can provide for your organisation, please call us on 01452 331331 or e-mail info@hrchampions.co.uk

03 November 2017, 14:50

E-cigs and Vapes

#HRFridayFact: E-cigs & vapes remain outside the scope of smoke free legislation so it’s up to employers to say if they’re allowed or not

With news of a cross-party inquiry into electronic cigarettes announced this week, it’s worth reminding ourselves that although it wouldn’t be illegal to allow the use of E-cigarettes and vaporizers in the workplace, employers should give due consideration as to whether or not to allow them.

Under smoke free legislation, the act of smoking requires something, typically tobacco, to be burnt. Electronic Nicotine Delivery Systems (ENDS) such as E-cigarettes and vaporizers produce a vapour instead, which is how they escape the smoke free legislation.

Because the use of vapes and e-cigarettes mimic the act of normal cigarette smoking, their use might give the impression that smoking is condoned in your place of work. This in itself may give rise to complaints from other members of staff. Equally the vapour that is produced could be considered off-putting or offensive to other members of staff and even customers, thereby encouraging complaints.

Whilst ENDS are claimed to be safe, they are still a relatively new product and therefore too new for any meaningful studies to have been undertaken of their long term effects. Hence the cross-party inquiry which hopes to establish the gaps in available information about their safety upon both users and anyone who lives or works in an environment where they are used.

Of course it is in an employer’s interest to have a healthy workforce. There is no doubt that normal smoking can be the cause or underlying cause of very many health issues. Having staff off sick is disruptive to production and service levels and puts pressure on other team members. Although the long term effects are unclear, ENDS are marketed predominantly as a mechanism to quit normal, unhealthy smoking. Most health practitioners would certainly seem to favour e-cigarettes over normal cigarettes.

With this in mind, where an employer has a high proportion of smokers in their workforce, it may be advantageous to actively promote the use of ENDS at work. This could potentially lead to a healthier workforce with improved attendance in the long term. Don’t forget of course that the NHS provides a free quit smoking service that employees can be directed towards.

Our advice would be to treat the use of E-cigarettes and vapes in the same way as regular cigarettes but whatever an organisation’s decision, the wellbeing of the entire workforce should be considered. Policies, as usual should be clear and unambiguous and made available to all employees in a staff handbook. Policies should cover what is and what is not acceptable including information regarding smoking breaks and where it is acceptable to smoke. There is no obligation to allow smokers or vapers more rest periods or breaks than other staff.

For further support and advice call us on 01452 331331 or e-mail info@hrchampions.co.uk

25 October 2017, 12:13

Referencing Previous Incidents During Investigations

#HRFridayFact: Incidents not resulting in disciplinary action can be taken into consideration when later disciplining, including dismissal

A recent Employment Appeal Tribunal (EAT) has determined that an incident that leads to an investigation but in itself does not result in any disciplinary action being taken, can still be taken into consideration when a new investigation does result in disciplinary action; Up to and including dismissal.

In the case of NHS 24 vs Pillar, Ms Pillar, a nurse practitioner was employed to triage inbound patient telephone calls. She was disciplined and subsequently dismissed following a patient safety incident.

The investigatory report that resulted in the dismissal referred to two previous patient safety incidents involving Ms Pillar where no disciplinary action was taken.

Despite a successful Tribunal claim against her dismissal, the EAT held that the dismissal was sound as the previous incidents were evidence that there was a lack of clinical competence rather than an accumulation of warnings.

For most employers, depending on the severity of any incidents, we would expect to see an escalation of disciplinary actions; for example a verbal warning leading to a written warning and then a dismissal. Presumably the fact that at least one patient’s life was put in danger added to the perceived severity of the incident in the NHS 24 vs Pillar case.

Notwithstanding, it would seem that even if investigations do not lead to disciplinary action being taken, this case means we may now have some wiggle room to take them into account should we need to escalate the severity of any discipline to dismissal.

There is of course no substitute for proper management including timely appraisals and appropriate training. We would also recommend that to mitigate any potential risk of ending up in Tribunal, especially now that Tribunal fees have been rescinded, employers should still follow a full and proper process and ensure that and punishment fits the crime.

For help and support with any stage of an investigation or disciplinary matters, call us on 01452 331331 or e-mail info@hrchampions.co.uk

20 October 2017, 10:30

Gross Misconduct

#HRFridayFact: Employees dismissed for gross misconduct don’t receive a statutory or contractual notice period or payment in lieu

For cases of gross misconduct resulting in summary dismissal, employee lose their rights to any period of notice and their final pay is calculated from the day of dismissal. They no longer work for the company from that point and they will only be due pay up until that point.

Their final pay should still include any accrued holiday however; or a deduction for any holiday that has been taken but has not been accrued.

Remember that gross misconduct leading to summary dismissal is not an excuse to forgo a proper disciplinary process. Failure to follow procedure, even if the case is clear cut, could result in a claim for wrongful dismissal. Offending employees still need to be invited to an investigatory meeting, even if it is held immediately after the offence.

For a subsequent disciplinary hearing, where the actual dismissal might happen, you must give the employee reasonable notice; we recommend at least 48 hours. Don’t forget to offer representation too.

If you’re planning to suspend the employee between investigation and disciplinary meetings, we advise that this is done on the grounds that they are a risk to the business if they were remain on the premises. Tribunals take a dim view of suspension these days if there is not a very good reason.

We provide a list of examples of gross misconduct in the staff handbooks that we provide for clients, but some of the more obvious offences include:
•    Theft of company property or of fellow workers’ possessions
•    Sleeping on the premises
•    Fraud, bribery or falsification of records
•    Fighting or Physical Assault
•    Malicious damage to Company property
•    Possessing and/or taking illegal drugs on Company premises

Finally, don’t forget that you must still offer the right to appeal any decision and this must be made clear to the employee including the process they must follow to lodge an appeal.

We are often asked to conduct investigation and disciplinary hearings for clients as an outside view can be much more objective when forming a judgment on a case. We’ve also had lots of experience at it and it’s something that we’re really good at.

If you need help and support or someone to outsource a disciplinary procedure to, call us on 01452 331 331 or e-mail info@hrchampions.co.uk

13 October 2017, 09:55

Identifying Constructive Disimissal

#HRFridayFact: Constructive Dismissal occurs when an employee resigns in response to an employer’s breach of the contract of employment

It's common to hear constructive dismissal described as being when an employee resigns because their employer’s behaviour has driven them to resign. However, for a true constructive dismissal claim to be warranted there must be an actual or proposed breach of the express terms of the employment contract or of the terms of trust and confidence implied by the contract.

A contract’s express terms are those that are clearly specified. These might include working hours, place of work, position/job title, holiday entitlement and pay. If an employee is disadvantaged by his or her employer’s changes to these express terms, or disregard of them, then a breach has occurred and a claim may ensue. Examples could be:

  • A deliberate reduction in wages, status or holiday entitlement
  • A significant change to working hours
  • A change of working location that is an unreasonable distance

Implied terms can be more vague as they aren’t actually written down, however in all jobs we should expect to be able to work in acceptable conditions and experience dignity and respect in the workplace. Breaches of implied terms would commonly include:

  • Bullying and harassment
  • Lack of support
  • Deliberate exclusion from meetings or workplace activities
  • Ignoring complaints

The conduct by the employer which may result in an employee’s resignation may occur as a one-off serious event, or a less serious event that follows a series of similar events and acts as the “final straw”, tipping the employee over the edge.

In a constructive case, the resignation must be more or less immediately after the event that causes it. Waiting for a new job offer before giving notice will dampen a constructive dismissal claim as it could be argued that the resignation was as a result of the new job offer.

Finally, if the constructive claim is proven, then, by default, it could be argued that the employer's behaviour was a deliberate act in order to get rid of the employee. As this would mean that a formal dismissal procedure would have been deliberately circumvented, an unfair dismissal claim could also arise.

For help and support defending claims of constructive dismissal, or for support with your HR & People Management so that the occurrence of claims is kept to a minimum, call us on 01452 331331 or e-mail info@hrchampions.co.uk

06 October 2017, 11:44

Three Strikes for Disciplinary Meeting Attendance

#HRFridayFact: When inviting employees to disciplinary meetings you should allow 3 chances to attend before proceeding in their absence

A disciplinary or grievance investigation at work may well conclude with a disciplinary meeting. So that you can demonstrate that you have followed a fair process, when inviting an employee to attend a disciplinary meeting, you should allow them up to three chances to attend before carrying on with the meeting in their absence.

It’s understandable that if an employee fails to attend their disciplinary meeting that the disciplining officer takes this as an admission of guilt and wants to continue with the disciplinary in the employee’s absence. However, employees have a right to defend themselves and it is wrong to make assumptions over why they have not attended a meeting.

A disciplinary hearing is going to be stressful for an employee whether they are guilty of a misdemeanour/misconduct or not. They will want to make sure they are prepared mentally and have a prepared case. This could lead to a number of reasons why they fail to attend or cancel at short notice.

For the employer, they will want to ensure that any disciplinary action that is taken is justified and will stick. They will need to be able to demonstrate that a fair process has been followed and the employee was given reasonable opportunity to defend him or herself. Remember that all employees will have a right to appeal any decision internally. Beyond this there is still the option to take their case to a tribunal; and now without tribunal fees as a barrier.

We normally recommend allowing up to three no-shows or cancellations with the disciplinary proceeding at the third attempt. Remember to document missed meetings and for each new meeting that is arranged remember to allow 48 hours clear notice.

In the event that a disciplinary meeting is concluded in the absence of the affected employee then it would follow the usual format with minutes taken etc, but of course with the exclusion of any comments from the employee being disciplined.

The outcome should be communicated to the employee in writing and if that includes dismissal then it’s probably best to deliver a letter by hand or be recorded delivery. Remember to include details of your appeals process in any disciplinary letter.

If the employee is suspended on full pay whilst waiting to attend the meeting, the employer will have to honour pay even if the employee fails to attend one, two or three meetings.

For any help and support with disciplinary investigation and hearings, call us on 01452 331331 or e-mail info@hrchampions.co.uk

22 September 2017, 12:46

Making Settlement Agreements

#HRFridayFact: A Settlement Agreement, to settle a workplace dispute, can preclude tribunal claims for anything listed on the agreement

Now that fees for bringing Employment Tribunals have been abolished, a resurgence in the number of Tribunal claims is anticipated. It’s likely to follow then that we will see an increase in the number of Settlement Agreements being arranged too.

A settlement agreement is designed to be a quick fix arrangement between an employer and an employee, or former employee, to settle a workplace dispute. One of the main points of a settlement agreement is that the employee will forgo the option to make a tribunal claim regarding the incident that has given rise to the settlement being made, usually in return for a financial settlement.

Although settlement agreements usually conclude an individual’s employment within a company, they don’t have to. A settlement agreement could be used to settle a dispute over an employee’s holiday perhaps, or an in-work benefit.

A settlement agreement can be a good way to circumvent what might otherwise be a drawn out disciplinary or performance management process. However we don’t recommend that they should be seen as an alternative to either and should only be considered under certain circumstances.

Settlement agreements are not a substitute for good working practices; nor are they the default position for when management fails.

Consider that a monetary settlement will be involved that the employer must be prepared to negotiate and pay, and that coming to one settlement may open the floodgates of other employees expecting the same. There is also the danger that an employer will get a reputation for simply ‘paying off’ problematic employees

A 'without prejudice' conversation relating to a settlement agreement can be started at any time by either an employer or an employee, but it must be done properly so as not to influence or prejudice any future events or decisions. Discussions should include payment arrangements, how the employment will be terminated (if this is an outcome) and any terms of an employer reference.

Once an agreement has been reached it must be put in writing and the employee given adequate time to consider it; usually ten days. The employee should also be advised to seek independent legal advice to have the terms of the settlement clearly and unambiguously explained to them. The cost of this advice should be met by the employer.

Once concluded, the employee has effectively given up any option to claim for unfair dismissal, provided this is detailed in the settlement agreement, so make sure that all loose ends are tied up. Also remember that some dismissals are automatically classed as unfair if they relate to an employee exercising specific rights relating to pregnancy or whistleblowing for example so don’t try to use a settlement agreement in those cases.

For further advice and support with settlement agreements please call us on 01452 331331 or e-mail info@hrchampions.co.uk

14 September 2017, 16:15

Deailng with Flexible Working Requests

#HRFridayfact: Employees can make just one application for flexible working in any 12 month period; these can be rejected with good reason

Workers with more than 26 weeks service have a statutory right to make flexible working requests. Employers are obliged to give such requests proper consideration but they can be rejected if the employer has a sound business reason to do so.

Flexible working requests must be made in writing stating the date the request is made and details of the changes to working conditions that are being sought. This might be a reduction of hours to part-time working; a request for job sharing; flexitime or homeworking.

Requests should also include any effects that the changes may have on the business, such as improved efficiency, the date the change would take effect from and details of any previous requests that have been made.

We recommend having a flexible working request form made available to employees to ensure that all the correct information is captured.

Requests must be considered by the employer and a decision made within three months of receipt. If a request is rejected, the employee can appeal the decision and appeals must similarly be considered and decided upon within three months.

It’s good practice to meet with the employee to discuss the flexible working request. The employee is not obliged to disclose the reasons why he or she is making the request, but if it can be discussed then this may lead on to a compromise or whether any alternative courses of action can be considered.

Requests must be given reasonable consideration and can only be rejected if there is a solid business reason for doing so. There is a prescribed list of acceptable reasons for rejection which are:

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • planned structural changes to the business

If the request is accepted then this will by default result in a permanent change of contractual terms of employment and so a new contract should be issued. It may be worth considering a trial period for the new working arrangements to ensure that they work for both parties before a final commitment is made.

If it is just a temporary arrangement that the employee is looking for however, then other options should be explored before a formal flexible working request is made.

For help and support with flexible working request as, including document templates, call us on 01452 331331 or e-mail info@hrchampions.co.uk

08 September 2017, 12:51

Employee Notice Periods

#hrfridayfact: Regardless of length of service an employee only has to give 1 week’s notice unless their contract states otherwise

Unless you have a clause in your contracts of employment which states otherwise, the statutory notice period that an employee needs to give to his or her employer when quitting their job is nothing in the first month, and just one week thereafter. This on its own is a good reason why you should issue a contract which stipulates your own employment terms, in a timely manner.

The Internet has dramatically affected staff recruitment in the employees favour. It’s now very easy to search and apply for jobs, and on an international scale. The extra competition has made it continuously more difficult for employers to recruit quality staff, not to mention more expensive. With employees becoming increasingly transient, employers need to make sure that they are getting their money’s worth.

Not setting a notice period means that statutory law applies which and just one week’s notice of resignation is required from the employee after he or she has completed a month’s service. The statutory notice does not increase with time served like it does for employers.

We recommend that you make the employee’s notice period contractual and therefore specific to each position as appropriate. The length of notice period to use will depend upon your industry and the particular job role.

Considerations when setting notice periods should include how easy it will be to replace any particular employee. Positions that demand specific skill sets or qualifications that may require some specialist recruitment will demand a longer notice period. Specialist Engineers or a medical qualification are good examples and a notice period of say, three months may be appropriate. This will give opportunity to recruit a replacement and include a period of hand-over so that the new employee can be brought up to speed by the person leaving.

Remember though that you’ll be tied into the longer notice period too, which may prove annoying if you have an underperformer. However you can overcome this with a contractual clause that lengthens the notice period once a probationary period has been successfully completed.

Unskilled jobs or those with a recognised transient labour force where workers traditionally come and go, might better suit remaining at just a week’s notice. In such situations where you decide not to ask the employee to work their notice, you will only be obliged to pay for one week, so minimising expense. Note that statutory notice periods that employers must give increases after two years’ service.

We recommend that even minimum notice periods appear in the employment contract to avoid confusion. It also keeps you in the habit of specifying a notice period when contracts are issued.

Further advice and support regarding notice periods and employment contracts in general can be obtained by contacting us on 01452 331331 or by e-mailing us at info@hrchampions.co.uk

17 August 2017, 15:10