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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

Who to put at Risk During Redundancies

#HRFridayFact: If redundancies are necessary, similar roles must be put at risk and a fair scoring system used to select individuals

Sometimes, even in periods of growth, businesses have to remodel and re-shape to accommodate and react to shifts in economic conditions. Ditching unprofitable lines for example. If redundancies become a necessity then “last in, first out” isn’t an acceptable policy and businesses should use a system that fairly scores all relevant employees’ abilities against the skills required to fulfil the available positions.

Whenever there is a redundancy situation you must remember that it is positions that are made redundant and not people. You must never use redundancy as a reason to dismiss a specific person without following a proper redundancy process. So, where a position has been identified as being redundant and more than one person is currently employed who can fulfil it, operating a fair selection process is paramount where all employees in that role are put “at risk”.

So if a company suffers a downturn in business and requires 2 less technicians from a team of 10, then all 10 technicians must be put at risk. A fair scoring system must then be applied to establish who the top employees are, based on their ability and aptitude and the bottom two will lose their jobs.
For example, if you close down a section of the business that makes product X, you may also have to put the section that makes product Y at risk if employees from the first section have the skills and ability to make both products.
Equally, employees that do similar roles at different offices or sites across the country may all need to be put at risk of redundancy if the need for one of those workers becomes unnecessary. So if the bookkeeping role of four offices could be managed by just two bookkeepers then all four would need to be put at risk and the best two selected following a fair selection process.

Unacceptable selection methods for redundancy include:

  • Last in first out
  • Drawing lots
  • Selection based on the lowest cost
  • Selection because someone is perceived as a difficult person.

We recommend employees are scored against a ‘selection matrix’ that awards points for each requirement of the position including skills, qualifications, track record and experience. This could include minus points for poor attendance and any disciplinary history. The lowest scores are those who are dismissed.

Ensure your scoring matrix is fair and does not favour or discriminate against any individual or group. A redundancy situations that can be construed as an excuse to exit a specific employee could lead to an unfair dismissal claim so it’s crucial that your process is flawless.

For further help and support with making redundancies contact us on 01452 331331 or e-mail info@hrchampions.co.uk

17 August 2017, 12:49

Employing Child and Young Workers

#HRFridayFact: If you’re offering summer jobs to young and child workers ensure you are compliant with the specific working rules that apply

Some businesses may offer summer jobs to young people and child workers to cover staff holiday and/or increased seasonal demand during the summer holidays. There are certain rules for employing young and child workers that employers must comply with.

In the UK, Children who are below age 16 in their current academic year are classed as child workers. Those between 16 and 18 are classed as young workers. The two groups have specific rules and rights when it comes to employment and even for temporary summer jobs, employers should be aware of and pay heed to these.

Even if you are employing your own son or daughter, you must comply with the rules for child workers which are often governed by local bylaws set out by the local council. It may be a requirement, as it is in Gloucester, to obtain a work permit for example.

There are restrictions for child workers which prohibit them from working under certain conditions. These are:

  • in places like a factory or industrial site
  • before 7am or after 7pm
  • for more than 4 hours without taking a break of at least 1 hour
  • in most jobs in pubs and betting shops and those prohibited in local bylaws
  • in any work that may be harmful to their health, well-being or education

During school holidays 13 to 14-year-olds are only allowed to work 5 hours per day (2 hours on a Sunday) up to a maximum of 25 hours a week.  15 to 16-year-olds can only work a maximum of 35 hours a week with a maximum 8 hours per day. (Again, 2 hours on a Sunday).

Furthermore all child workers must have a 2-week break from any work during the school holidays in each calendar year.

Young workers cannot usually work more than eight hours per day or 40 hours per week and these hours cannot be averaged over a longer period like adult workers under the Working Time Directive. Those who work for more than four and a half hours must have a rest break of 30 minutes. Rest breaks must be taken in one block and at some time during the work period, not at the end.

Young workers should also get 12 uninterrupted hours rest in each 24 hour period in which they work and get two days off each week. These two days should be taken together and cannot be averaged over a two-week period. Ie working 6 days one week and 4 the next.

Full-time students who are just working a holiday job and will be returning to full-time education after the holidays may not need to pay tax through PAYE but will still pay National Insurance if they more than the weekly threshold. As they will have a national Insurance number from age 16 you should put them on your normal payroll.

Young people will be keen to earn some spending money, which makes them targets for exploitation. Remember that the National Minimum Wage will apply and that you have your other employer responsibilities to consider such as ensuring a safe working environment and that no-one is subject to any age discrimination.
For further help and support with employing young people, call us on 01452 331331 or e-mail info@hrchampions.co.uk

17 August 2017, 12:45

Drug and Alcohol Testing

#HRFridayFact: You need consent for drug and alcohol tests in the workplace so ensure you have a contractual clause or staff handbook policy

If you’re in an industry where you have workers who’s ability to do their job safely could be impaired if they are under the influence of drugs and/or alcohol, you should retain the right to impose testing. Because you need consent to be able to test employees, make sure there is a clause in their contract of employment or a policy in you staff handbook that allows you to make random tests.

Remember that employers have a legal obligation to look after their employees’ safety and wellbeing at work and that danger can come from a worker’s own intoxicated state or that of a colleague.

Testing is normally only carried out on employees that would be considered to be in ‘high risk’ groups. Examples include drivers, those who work at heights such as scaffolders, handlers of hazardous substances or those who work with vulnerable adults and children.

To avoid risks of victimisation or discrimination claims, drug and alcohol tests should be carried out either on the entire high risk group, eg. all drivers; or on a selection of employees that you can prove has been randomly selected.

Selecting individual workers would be acceptable in situations where you have reasonable belief to suspect that person was under the influence of alcohol or drugs

Although self-use kits are available, when conducting tests it’s a good idea to use a professional external organisation, to maintain consistency and avoid mistakes. You’ll also be able to ensure that proper records are kept and it is less likely that any positive results are objected to.

The frequency of tests, whether they are random and who they will be applied should be information contained within your contracts or staff handbook. This should also detail the likely consequences of a positive test result depending upon which substances are identified in the test, and the consequences of refusing to take a test.

We recommend that it is made very clear that tests will be held at random. Giving notification to drug and alcohol test totally negates the reason for applying them.

For further help and support in managing drug and alcohol testing, your staff handbook wording and what to do in the result of a positive test or refusal, call us on 01452 331331 or e-mail info@hrchampions.co.uk

11 August 2017, 11:33

Representation is only for Disciplinary Meetings

#HRFridayFact: Staff are only entitled to representation at disciplinary meetings. Though it may be appropriate to offer it at other times

There are various reasons that you will want to hold meetings with members of staff. It’s usual that meetings are held with just the employee, but for disciplinary meetings you must offer representation which can be either another employee or an appointed representative of a recognised union.

Investigation meetings during a disciplinary process don’t count as disciplinary meetings, and other than a note taker there should just be the investigating officer and the subject of the interview, whether that’s a directly involved party or a witness. It’s only at the disciplinary hearing, the point when the outcome of the investigation will be decided, that the subject of the disciplinary is entitled to be accompanied by a representative.

Whilst other meetings such as one-to-ones, appraisals, exit interviews, return to work interviews and investigation meetings wouldn’t usually warrant any accompaniment, you may want to consider it under safeguarding guidelines. So for vulnerable adults and the young, an “appropriate adult” is best practice. This could be a parent or support worker, or there may be a nominated person within your organisation that is willing to volunteer for this role.

We are often questioned as to whether an employee can bring a parent, spouse or partner to a disciplinary hearing, and whilst some organisations might want to allow this, it isn’t something we would recommend.

For any support and advice with disciplinary processes, including on-site support for interviews and meetings, call us on 01452 331331 or e-mail info@hrchampions.co.uk

04 August 2017, 12:37