8 Things Every Employer Should Know about References

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It is common practice for employers to provide references for employees and ex-employees, but there are risks involved. Here are eight things you need to know before you give anyone a reference.

  1. No legal duty to provide a reference. There is no obligation on you to provide a reference for an employee or ex-employee, unless there is a term in the contract which provides for this. This is irrespective of whether the request for the reference comes from the employee, a prospective employer or any other third party such as a bank or landlord.
  1. References must be true, accurate and fair. You have duties towards the subject and the recipient of the reference. You must take reasonable care to ensure that the information in the reference is true, accurate and fair, and does not give a misleading impression. If you fail to take such care, you could be sued for negligent misstatement and ordered to pay compensation. As an employer you must ensure that any reference you give, or any reason for refusing to give a reference, is not discriminatory and does not amount to victimisation. Employers can be liable for discrimination against a former employee even if it occurs after the employment has ended.
  1. Policy on giving references. It is good practice for employers to have a written policy on providing references. The policy should set out when a reference will be provided, who within the organisation may provide references and what information the reference should include. Many employers have a policy of providing a standard reference including only limited information, for example dates of employment and positions held. This limits exposure to claims.
  1. Settlement agreements. When you receive a reference request, you should check if there is a settlement agreement in place relating to the particular individual. Settlement agreements often contain the wording of an agreed reference, which the employer agrees to provide in respect of any reference requests made regarding the individual. There is more here on Settlement Agreements in one of our previous blogs.
  1. Employee consent to reference. In writing a reference, you are likely to have to process the employee’s or ex-employee’s personal data, as regulated by the Data Protection Act 1998. You need to check that the individual has consented to a reference being provided.
  1. Sickness absence. You must get explicit consent from the individual if you are providing sensitive personal data, such as physical or mental health information. Revealing the number of days an employee has been absent, but not the reasons for the absences, will not require explicit consent. However, this does run the risk of disability discrimination.
  1. Disclaimer of liability. Employers often include a disclaimer of liability arising from errors, omissions or inaccuracies in the information provided in a reference. The circumstances in which a disclaimer will be effective are limited. However, it is still worth you including one.
  1. Sending the reference. A written reference should be addressed to the named individual who has requested it and marked “Strictly private and confidential” and “To be opened by the addressee only”.

What’s the Safest Way to Withdraw a Job Offer?

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I have been asked a lot of questions recently about withdrawing job offers based on poor references, so I thought that I would write about it in more detail here. 

Can you withdraw a job offer once it has been made? What risks do you face as an employer if you change your recruitment plans?

Sometimes you will need to withdraw an offer of a job. The hiring situation may change because of a general recruitment freeze, a restructure within your organisation or a change of management. The funding for the post might have been withdrawn or you may become aware that the selected candidate is not suitable after all.

Job offers can be withdrawn after they are made, but there are risks associated with doing this. Withdrawing an offer because circumstances have changed looks like bad planning and could affect your company’s reputation. The employee may be able to bring a tribunal claim for breach of contract.

When is the contract of employment formed?

An employment contract is formed once an unconditional job offer is made and accepted. If you withdraw an unconditional job offer once it has been accepted, you are effectively terminating the contract and could be liable for damages for the individual’s loss.

Even though the individual has not started working for you, there will be a notice period due – just as with other terminations. Damages could amount to what the individual would have received if you had given proper notice – including any pay and benefits due.

What if your recruitment plans change?

If your recruitment plans change due to business needs and you have to withdraw job offers, you should notify the recruits as soon as possible to try to limit the damage and enable them to mitigate their potential loss. The selected candidate might not have resigned from their current employer yet. If they have, they may still be able to ask for their old job back – the sooner this is done the better.

Pre-recruitment checks and job offers

Most job offers are conditional on the new recruit satisfying certain conditions. The selected candidate may need to provide references or evidence of qualifications, or they may need to demonstrate their right to work in the UK. If the individual does not satisfy one or all of those requirements, you can withdraw the job offer without being liable for damages.

If you don’t make it clear that the job offer is conditional, and then withdraw the offer because the recruit has not satisfied one of your requirements, this will amount to a breach of contract and you may be liable for damages. Offers of employment should make absolutely clear that they are conditional on certain requirements being met. Failure to do so can be costly.

If you’re considering making or withdrawing a job offer and you want to make sure that you’re doing it properly, contact us first for some advice. Call us on 0118 940 3032 or email sueferguson@optionshr.co.uk.

3 Steps to Get You Through Those Dreaded Appraisals!

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With the end of the year approaching fast, now is a really good time for you to be thinking about annual appraisals. It is ideal if you can complete them all by the end of the year, as they give you a good opportunity to review the performance of your staff this year; and to plan what you want them to achieve next year.

Many managers approach appraisals with fear and trepidation. However, if you put some time into preparing for them, they can be a very useful tool for developing your people and improving performance across your business. Read on to find out how to this simply and efficiently!

It seems that many managers, whether relatively new to the job, or with many years of experience, would rather not spend more time than is absolutely necessary on annual appraisals. They have bad press as being a waste of everyone’s time. This is quite possible, if you approach them at the last minute, with no preparation. Here are three steps that will help you and your employees to find them much easier to get through and actually get the best from your time.

  1. Preparation

This is one of the most important stages of the appraisal process and is often missed or skipped over too quickly. You need to have facts about each employee’s performance and evidence of instances in which they have performed well or badly. This will make the appraisal constructive and meaningful.

Throughout the year, track each employee’s performance and keep a log of memorable incidents or projects they’re involved in. Look back at previous appraisal information and job descriptions to make sure they are meeting their agreed objectives.

Make sure that your employees are prepared too. Agree the date, time and place for the meeting at least two weeks in advance; brief them on the importance and scope of the meeting and what you expect from them. Ask them to spend some time thinking about what they’d like to discuss at the meeting too. Click here for an example of a form that you can ask each employee to complete before the appraisal.. If an employee also works for someone else in the business, ask them to be involved too.

  1. The Meeting

Once the preparation is done, here’s how to carry out the meeting:

  • Ask open and probing questions, giving your employees the opportunity to decide how to answer; encourage them to talk freely
  • Listen to what they say without interrupting. Also watch their body language for messages
  • Evaluate performance, not personality. Focus on how well the employee does their job rather than personal characteristics
  • Give feedback based on facts not subjective opinion. Use feedback to positively reinforce the good. In the case of underperformance, use it to help the employee understand the impact of their actions or behaviour and the corrective action required
  • Set SMART objectives for the future and set a timeline for improvement if an employee is underperforming. Look also for development opportunities to help your employees reach their potential.

Document each appraisal. Write a summary of the discussion, what was agreed and any action to be taken while it’s fresh in your mind.

  1. Follow Up

Don’t just walk away at the end of the meeting, breathing a sigh of relief and forgetting about it all until next year!

Do what you say you will do. Fulfilling your promises reflects well on you and your business. If you’ve set deadlines for performance reviews, follow up on them. Check on progress that you discussed in the meeting.

Not following up with appraisals means that the whole process will be a waste of time and something that neither you nor your employees look forward to or find useful. Spend some time planning and preparing and you’ll find them really useful and productive.

If you need help with appraisals, why not use our Appraisal Service? We will help you to hold meetings that actually work for you, your staff and your business. Click here to find out more.

Is it Cheaper to Look After Your Staff or Cheaper to Replace Them When They Leave?

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How can the loss of key staff members be prevented when so many employers are not interested in managing retention?

Many employers don’t attempt to manage retention of their staff. Those that do so seldom evaluate the impact of their measures, and often base them on unreliable assumptions about the reasons why employees resign.

Several research studies have shown that retention is linked to employee engagement, which in turn is linked to profitability, customer service and other important business metrics. So is it better to focus on improving engagement, rather than retention. Or should you not worry and just bear the cost of replacing people when they leave?

Despite all the evidence that staff attrition costs money, many businesses take no active steps to control their staff turnover. Research has shown that action is most likely to be taken after the event: when turnover has already become a problem and damage is being done to organisational efficiency.

Studies also consistently show that employers tend to mishandle their efforts to manage retention, focusing on issues that they believe are linked to resignations rather than those that actually motivate staff to leave. Pay in particular is often used to encourage employees to stay, yet it is much less of a deciding factor in employees’ own decision-making than being offered career opportunities, being kept informed and consulted and having faith in the business’s leadership.

What is ‘employee engagement’?

It embraces the older concepts of job satisfaction, motivation and attachment that described individual employees’ attitudes to their employer, but goes beyond them to provide a complete model of the psychological relationship between individuals and organisations. It is a two-way process in which employers and employees interact and respond to each other, unlike the more static concept of job satisfaction.

Employee engagement involves two issues:

  • personal satisfaction in the individual’s job or role (“I like my work and do it well”); and
  • the individual’s contribution to their employer’s success (“I help achieve the goals of my organisation”).

Staff retention can be used as a measure of employee engagement, with many companies now believing that employee engagement is one of the keys to managing performance and retaining talent. Initiatives to improve employee engagement are much more likely to gain the interest and active support of senior management than those focused narrowly on increasing staff retention. Employee engagement has much broader business benefits, including:

  • increased profitability
  • faster revenue growth
  • improved organisational efficiency
  • better attendance levels
  • heightened customer focus.

Look after your staff and they are more likely to look after you and the future of your business. If you need some advice or ideas on employee engagement, email us at sueferguson@optionshr.co.uk or call 0118 940 3032.

Top Five Employment Law Cases in 2016 (So Far!)

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Here are the top five employment law cases of 2016 so far, some of which have fairly far reaching implications.

Commission and holiday pay – Lock and another v British Gas Trading Ltd (No.2) (EAT)

This Employment Appeal Tribunal (EAT) agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay.

The case went to the Court of Appeal and was heard on 11 July 2016. The Court of Appeal judgment is awaited.

Childcare vouchers during maternity leave – Peninsula Business Services Ltd v Donaldson (EAT)

HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.

Official HMRC guidance stated that “non-cash benefits, such as childcare vouchers that can be used only by the employee and are not transferable…must continue to be provided during ordinary maternity leave and additional maternity leave”.

Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.

An employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT. The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.

Monitoring employees’ social media – Barbulescu v Romania (ECHR)

In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.

An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.

However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.

This case will now go to the ECHR’s Grand Chamber. The hearing is scheduled to take place on 30 November 2016.

Misconduct dismissal for “pulling a sickie” – Metroline West Ltd v Ajaj (EAT)

The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.

This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.

Reasonable adjustments for disabled people – Carreras v United First Partners Research (EAT)

When considering the duty to make reasonable adjustments, employers need to pay particular attention to disabled workers’ hours of work.

In this case, the disabled employee believed that he was disadvantaged because there was an expectation in his workplace that employees work late, even though there was no strict requirement to do so.

In upholding the reasonable adjustments claim, the EAT held that working late does not have to be presented as an instruction to cause a disadvantage.

In practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.

If you think any of these issues could affect your business, do get in touch with us. Call us on 0118 940 3032 or email sueferguson@optionshr.co.uk.

On 18 October 2016 we’ll be running our next Employment Law Update workshop, to bring you right up to speed on any changes that might affect your business. You can book your place online here.

 

Source: XpertHR

What Impact Will Brexit Have on Employment Law?

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Although much UK employment law is derived from EU law, the UK’s withdrawal from the EU is unlikely in itself to have an immediate impact on employment law as most EU Directives are implemented in the UK by regulations or Acts of Parliament. It will be for Parliament to decide whether to retain, amend or repeal domestic legislation.

It is possible that the UK will be required to continue to implement elements of EU legislation as a condition of a negotiated trade deal between the UK and EU.

Many areas of domestic law that are derived from EU law have been heavily influenced by decisions of the European Court of Justice (ECJ), for example working time, TUPE and discrimination law. ECJ decisions will continue to apply in the UK until the Government or the UK courts determine otherwise.

What impact will Brexit have on EU nationals currently working in the UK?

It is not yet known what rules on immigration and free movement of people will be in place following the UK’s withdrawal from the EU. However, employers can reassure employees who are EU nationals that there will be no immediate change in their right to live and work in the UK. The same is true of nationals of the other countries of the European Economic Area (EEA) (Iceland, Norway and Liechtenstein) and of Switzerland.

EEA and Swiss nationals who have lived in the UK for five years or more as a “qualified person” have acquired the right to permanent residence. A qualified person is someone who is working, studying, self-employed, self-sufficient or looking for work. A person who has qualified for permanent residence can apply for a document certifying this.

The UK will have a period of up to two years within which to negotiate the terms of its withdrawal. The rights of EU nationals to come to the UK to live and work in the future will be a key element of the negotiations. It is likely that EU nationals who are already living in the UK will be afforded special status, with reciprocal arrangements for UK nationals living in EU countries.

One option for an immigration framework, in the absence of a negotiated deal allowing freedom of movement between the UK and the EU, is that the current points-based system that applies to workers from countries outside of the EEA could be extended to EEA nationals. For most employers, the main route for employing foreign workers under this system is by sponsoring skilled workers, where they can show that there is a shortage of suitably qualified applicants within the resident labour market. There is scope for a points-based system to be extended to allow the employment of non-skilled workers as well as skilled workers.

On 18 October 2016 we’ll be running our next Employment Law Update workshop, to bring you right up to speed on any changes that might affect your business. You can book your place online here.

 

Information Source: XpertHR

How Do You Handle Unauthorised Absence from Work?

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What do you do when one of your members of staff keeping missing work for no apparent reason, or doesn’t come back when you expected them to after their holiday? This is known as unauthorised absence and needs to be handled quickly and efficiently.

The first thing to do is find out why someone has been missing work. Is it unusual or do they keep missing work? Next you need to get in touch with them and follow a procedure. This short video will tell you more about this.

We can help you put a procedure in place for handling these issues and can provide you with a template letter to send to staff who have been absent without your authorization. Just call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

Are Your Employees Doing Their Best for Your Business?

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Your people are the key to the success of your business. By investing in them you are investing in your success. But how do you make sure they are working as hard as they can, to bring about that success? 

Here are our top 10 tips to help you get the most from your people: 

  1. Provide a vibrant and stimulating working environment and a culture that values the contribution made by each person
  2. Embrace the diverse range of skills, expertise, experience, attitudes and backgrounds of all your staff
  3. Encourage your staff to reach their full potential. Provide them with opportunities to develop their expertise, both in terms of technical and soft skills
  4. Provide formal and informal performance reviews on a regular basis
  5. Set clear objectives and achievable targets with your staff and allow them to air their concerns within an environment of trust and honesty
  6. Deal with issues as soon as they arise. Don’t wait for them to become a significant problem
  7. Equip your managers with the skills they need to deal with difficult situations confidently and effectively
  8. Reinforce and reward good performance. Provide incentives and rewards that motivate each individual member of staff
  9. Offer a clear career path to incentivise employees to be the best they can be
  10. Conduct regular employee questionnaires to highlight areas for concern and ensure staff feel that you value their opinions.

Managing staff is often the hardest part of any manager’s job. Follow these simple tips and you’ll find it easier to encourage your staff to put their best efforts into working with you. If you need any help with improving the performance of your people, get in touch by calling 0118 940 3032 or emailing sueferguson@optionshr.co.uk.

How Do You Handle Short Term Staff Sickness?

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Do you have a member of staff who always seems to be off sick, or who doesn’t turn up at work as often as they should do? What’s the best way to handle this?

The first thing you need to do is find out exactly how many days your employee has been off work due to illness and why. What next? Watch this video to find out how to meet to with your employee and what you expect from them next.

If you have any specific questions about handling short term sickness issues with your team, call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.

How Do You Deal with Poor Staff Performance?

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What do you do when you first think that one of your members of staff isn’t doing as well as you would like them to?

Whatever you do, don’t ignore it and just hope that the situation will improve!

For some tips on how to deal with the early stages of poor performance, watch this short video.

If you still have any questions about how to help your staff to perform better, or you have a more difficult situation to deal with, call us 0118 940 3032 or email sueferguson@optionshr.co.uk for some confidential advice.