Your Essential Employment Law Updates

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Keeping yourself knowledgeable and up to date about the latest in employment law isn’t easy when you’re running a business. Instead, you can rely on me to help you remain legally compliant. So here is my summary of a few of the topics we discussed at last month’s Employment Law Workshop:

Zero Hours Contracts

A zero hours contract is helpful for new businesses as they become established, and small businesses. However, it’s important to remember that employees under a zero hours contract are also entitled to the same statutory rights as any other employee, such as annual leave, sickness, termination, and so on. Even if they don’t work many hours.

Despite the fact that an employer is not obliged to provide work under a zero hours contract, the employee is required to accept it when it is offered and, arguably, this is sufficient to amount to mutuality of obligation.

ICO Fees from May 2018

Since GDPR was introduced, it is a legal requirement for all organisations to pay an annual data protection fee to the ICO (Information Commissioner’s Office).

There are three tiers of fee payments that are dependent on your organisation’s size and turnover. Some organisations, such as charities and small occupational pension schemes, only need to pay £40 regardless of size and turnover. The tiers are as follows:

  • Tier one – £40 annual fee
    • Organisations with a maximum turnover of £632,000, or ten or fewer staff
    • Charities
    • Small occupational pension schemes
  • Tier two – £60 annual fee
    • Organisations that do not fall into tier one and have a maximum turnover of £36 million, or 250 or fewer staff
  • Tier three – £2,900 annual fee
    • Organisations that do not fall into tiers one or two, and that have a turnover of over £36 million, and more than 250 staff

To register with the ICO, find out more and pay your fee, click here.

No Right to Work in the UK

When recruiting, it’s essential to thoroughly check the candidate’s right to work in the UK. This involves checking and taking copies of documents such as passports, proof of address, proof of residence, etc. It’s important that you see the original documents and that they are valid. Throughout this process, be careful not to discriminate against anyone based solely on their race.

Gov.uk says to check that:

  • The documents are genuine, original and unchanged, and belong to the person who gave them to you
  • The dates for the applicant’s right to work in the UK have not expired
  • Photos are the same across all documents and look like the applicant
  • Dates of birth are the same across all documents
  • The applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work)
  • For students, you see evidence of their study and vacation times
  • If two documents give different names, the applicant has supporting documents showing why they’re different, such as a marriage certificate or divorce decree.

Remember that the original permission to work in the UK can expire, so it’s important to make regular checks on your current employees – you could face civil or criminal penalties if you’re found to be employing people who do not have the right to work in the UK.

The Gov.uk website provides some useful guides to help employers do this.

Christmas Parties – Preventing Problems whilst Having Fun!

It’s always good to have work parties, both for the fun and to celebrate the season, and also to help keep morale high whilst rewarding staff for a good year. But parties are not always without their problems. Costing on average around £50 per head, I always recommend that an Office Party policy should be drawn up to set expectations on behaviour. Key points should be:

  • Christmas celebrations should be viewed as an extension of the workplace
  • Celebrate responsibly
  • Expect high standards of conduct while still having fun
  • Let your hair down, but not yourself or your employers
  • Employees should not post photographs or videos of themselves, colleagues or other attendees and third parties (e.g. venue staff) at the event on the Internet or any social media websites.

If you have any queries on current employment law legislation and how it affects your business, or any other staff issues, do call me on 0118 940 3032 or click here to email me.

What’s the Best Way to Look After Your People?

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This guest blog has been written by Jonathan Lane and Patrick Doyle at SR Consulting who provide insight, solutions and support to growing businesses.

The long term success of your business depends on a large number of factors. One of the most important areas that you need to consider is your people. Are you doing everything that you can to look after them? Are you giving them the training and personal development that they need? Are you giving them the skills they need to help you grow your business? Are you providing with them the motivation they need to stay with your business, through thick and thin?

If you sit back and hope that the people you recruit will perform perfectly and that your business will prosper, you’ll be disappointed. It’s essential that you manage the continuous development of individuals, teams and yourself. This includes developing the knowledge, skills and experience of both new recruits and current employees.

Developing and training your people includes skills training and learning achieved via courses or instruction and covers personal development through coaching, mentoring or self-learning. It applies to all the members of your team, and includes people with little ambition beyond doing the same job until retirement, as well as high flyers. Changes to the world of work through continuing advancements in technology mean that even the non high flyer will at some point have to learn something different, even if it is just a new software version.

People develop knowledge, skills and experience from the day that you appoint them and it continues throughout their employment. The work that people do will also develop as external factors change. Encouraging an environment of development can help your business to meet its evolving needs for performance and delivery as well as fulfilling the people in it. People who develop in a role can also use their new skills, knowledge and experience to help others.

Where Do You Start?

You may have worked for, or be working in, a business that has someone who is responsible for developing the people. However, thinking that it can be left to your ‘Training Manager’ or an HR department, and that it doesn’t have to feature in your role as a boss is a mistake. A conscious approach to engaging everyone in developing your people can ensure you have a team that is doing what you need it to do, in a way that is efficient and effective for all concerned.

Every business is different, so there is no set way of developing people. It will differ from person to person, and you as the boss will also be a factor. Whilst there is no magic formula for this, here are some basic dos and don’ts:

  1. Don’t just rely on holding an appraisal meeting once or twice a year.
  2. Don’t apply it just to the employees who want to take on more tasks and responsibilities, or who are eager for training or promotion.
  3. Don’t think it is just about sending people on training courses.
  4. Do recognise that developing all the people in your team is part of the day-to-day activities of being the boss.
  5. Do acknowledge that people will have different reasons for working and different ambitions in respect to their life and career. As a result they will have different personal development needs.
  6. Do remember that an approach that works for one person isn’t guaranteed to work for another.

If you cover these basics you will be able to grow a stronger, more sustainable business, maintaining the performance of your people and reducing employee turnover. If you need any help with finding the best way to develop the people in your particular business, we can help. Call Jonathan Lane on 07503 891 331 or Patrick Doyle on 07425 150 238, or click here to email us for a conversation about developing your people and your business.

Seven Tips for Building an Amazing Team

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This is a guest blog written by Helen Pethybridge from ActionCOACH.

As a business owner, you understand how important it is to have the best people around you. And when they’re in, then making sure they are all pulling in the same direction in your growing business. Once you have the right people in the right places, that have the trust and support they need, you will see massive increases in morale, productivity and therefore results: increased profits. Here are my 7 tips for building an amazing team:

  1. Clear responsibilities

Firstly, get off to a flying start by being clear – and I mean really clear – on what is the work to be done, how will the work be measured, and how are these activities best grouped together into role or jobs. Make sure there is ‘clear space’ between the accountabilities of each different role in the team – so the job holders don’t ‘trip over’ one another.

  1. Hire on attitude

Next define the skills and experiences that are absolutely necessary to do the job and keep them to the minimum you can get away with. Be as broad as you can in terms of the type of product experience, the years’ experiences already gained, the qualifications needed, the broader the range of transferable skills the better for attracting more applicants. This allows you to attract as many diverse people as possible, from a broad range of backgrounds and industries. THEN you get the opportunity to narrow down your applicant pool based on attitude. Remember, it’s much easier to train skills, than change attitudes… So, hire on attitude. This gives you a real head start on creating an amazing team.

  1. Nurture

My third tip is to nurture your team members especially your new hires through their onboarding time. You’ve spent all this time and effort on hiring them, so why wouldn’t you invest a little more time to make sure they land smoothly in your team? It beggars belief that when a manager hires their dream candidate they can’t manage to be in the office with them on their first day.

  1. Give them space

So now you’ve a got great people in place in well-designed roles, next you need to keep them and build them into a team. Your role is to give them overall direction and structure and then let them get on with it.  You’ve hired the best, so show your trust in them. Provide ‘leadership cover’ if things go a little awry that supports them and take the flack yourself.

  1. Be accessible

Give your team first priority on your time. They’ll deal with everything for you as long as they know that when they do actually need you, you are accessible and responsive. Look after the team, and the team will look after the work, and the clients.

  1. Reward your team’s success

Give credit where credit is due, publicly recognise and celebrate the team’s achievements and success encompassing the whole team effort not just the visible team members ‘fronting’ the work they’re always supported by their colleagues in the background probably doing most of the work.

  1. Be a risk taker

My final top tip is to take risks on talented people. Keep everyone stretched and challenged. Support them to grow into their role, rather than hiring ‘ready-made’ who’ll be bored before you’ve finished their induction…

When teams have ‘space’ to operate and have the trust and support from their leader, they have a happy habit of getting on with working together, delivering amazing results and supporting each other and you just got yourself a dream team.

Find out more about what Helen does at actioncoach.co.uk/helen-pethybridge.

Since GDPR, How Do You Respond to Subject Access Requests from Employees?

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Since GDPR, How Do You Respond to Subject Access Requests from Employees?

Whatever the size of your business, you probably process significant amounts of personal data on clients and employees. The sensitive nature of this data means that you are bound by the legal rights of the data subjects, which includes their right of access to their personal data.

Sometimes referred to as SARs or DSARs, this guide explains your employees’ rights on making a Subject Access Request under GDPR, how they differ from the previous rules under the Data Protection Act 1998, and the processes required to effectively deal with them. The process is the same for requests received from other workers, or job applicants requesting personal data gathered during recruitment.

Key Changes Under GDPR

Subject access rights under GDPR are slightly different from those under the Data Protection Act 1998. For example:

  • Employers must provide additional information – envisaged data retention periods, and information about employees’ rights to have the data rectified, erased, or to object to the processing
  • Previously, SARs had to be in writing. Now, verbal requests are possible
  • Previously, you could charge a £10 fee for responding to a SAR. Now, you cannot charge unless the request is manifestly unfounded or excessive
  • Before, response time to a request was within 40 days of receipt. Now, you must respond without ‘undue delay’ and within one month of receipt (extended to three months for complex requests)
  • The maximum fine for non-compliance on responding to a SAR has increased significantly from £500,000 to €20 million, or 4% of the undertaking’s total worldwide annual turnover if greater. However, the Information Commissioner’s Office (ICO) has emphasised that it intends to continue to use its powers to impose fines “proportionately and judiciously” and regards issuing fines as “a last resort”

Subject Access Rights under GDPR

When responding to a SAR, you must provide the employee with the following information:

  • The purposes for processing the data
  • The categories of personal data you process
  • The recipients, or categories, to whom the data is disclosed (especially if outside the European Economic Area (EEA))
  • How long you will hold the data
  • The employee’s right to request rectification or erasure of data, and to restrict or object to processing
  • The employee’s right to complain to the ICO
  • The source of any data not provided by the employee
  • The existence of any automated decision-making (including profiling), the logic involved, and the envisaged consequences of such decision-making for the employee
  • The safeguards provided for the transfer of data outside the EEA (if relevant)

If a SAR is manifestly unfounded, excessive or repetitive, you can charge a reasonable fee for administrative costs or refuse to act on the request. But you must tell the employee, without undue delay and within one month of receipt, why you are not responding to the SAR and of their right to complain to the ICO and/or a court. If you are challenged, you will need to demonstrate your reasons.

Policies and Procedures

You should already have policies in place to guide both employees and managers on dealing with SARs; use the following to update them.

  1. On receipt of a SAR, assess whether the request is complex. With the volume and sensitivity of employee data typically held they may be complex, needing an extended three-month time limit. If so, notify the employee with the reasons why within one month of receipt of the request. Keep the employee informed throughout – regular communication helps reduce the risk of employees complaining to the ICO.
  2. Identify where the data is being stored, both electronically and manually. This may include the HR team, the line manager and the IT department. Your policy should specify the timescale for them to provide the data for review, including by legal advisers if necessary, before the SAR response is due.
  3. Employees responsible for dealing with SARs will need training.

Identifying SARs

Your data protection policy can specify how employees should submit SARs, which will help to identify them. However, an employee can still submit a SAR in some other way, including verbally or even via social media, which you should then confirm in writing; it’s important to regularly monitor all channels of communication.

Legally, there is no prescribed format for a valid SAR under GDPR. It simply needs to ask for copies of their personal information. For example, a request for “a copy of all information that you hold about me” or “all information relating to my recent grievance” will be a valid SAR.

You are not required to comply with a SAR if you cannot verify the identity of the individual making the request. It could be a previous job applicant, and you may need to check the individual’s identity before disclosing personal data – a copy of a utility bill should suffice.

Clarifying and Searching

Most SARs ask for “all information that you hold about me”. The ICO regards an individual’s right to access their personal data as fundamental. However, in some circumstances it may be possible to show that the employee’s request would require taking unreasonable steps.

Initially, discuss the scope of the request with your employee; you cannot ask them to limit the scope, but you can ask for further information to help locate the personal data. For example, if the employee is seeking personal information contained in emails, you could ask them to identify which email accounts should be searched, or parameter dates. Engaging with the employee about their request, even if they refuse to cooperate, may help your case should they later complain to the ICO.

The ICO’s Subject access code of practice may be of help.

Carrying out regular data audits to record where data is stored is beneficial, especially if third parties are involved, such as cloud based databases.

Searching email systems for personal data can be onerous. Ideally, set up your systems to simplify locating information. You may need to search local computer drives (such as the employee’s line manager) for personal data – your policy should set clear rules on the storage of employee data on personal devices.

Paper archives should also be searched. To save time, liaise with the employee to agree the search parameters.

Data Exemptions

If the employee’s personal data is mixed with that of other people, assess whether to disclose such third-party data. The Data Protection Act 2018 contains exemptions to some data types, including:

  • Confidential employment references
  • Personal data processed for management forecasting or planning if disclosure would prejudice the business (e.g. reorganisation plans)
  • Records of your intentions in relation to negotiations with the data subject if this would prejudice the negotiations
  • Information subject to legal professional privilege

Providing the Data to the Employee

The GDPR recommends that personal data should be provided via remote access to a secure system. Alternatively, provide the response electronically (unless otherwise requested) with password-protected documents, portable hard drive or USB device. This is a significant change from previous practice, as employers used to provide hard copy data.

Explain what searches you carried out and why searches may have been limited, either because they would require disproportionate effort or because the data is too intermingled with third-party data. Explanations reduce the risk of complaints to the ICO.

For further advice on SARs or any other staff issues, do call me on 0118 940 3032 or click here to email me.

The Importance of Developing Recruitment Shortlisting Criteria

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The Importance of Developing Recruitment Shortlisting Criteria

When you need to recruit, do you follow a specific procedure? Do you have effective shortlising criteria? If not, you may end up with problems, waste a lot of time and money or employ the wrong person.

It only takes some simple, common-sense steps to ensure a smooth recruitment process. Read on to find out more about how and why you should develop effective shortlising criteria for successful recruitment drives.

Why should you develop a process?

There are four key reasons why you should develop an effective shortlising process for each role, regardless of the size of your business:

  • Legal implications – to avoid a tribunal claim for discrimination
  • Ensuring a suitable quality of candidates for the role
  • Time and cost – criteria that’s not stringent enough could mean shortlising unsuitable candidates
  • Employer reputation – a fair recruitment and selection process can have a significant impact on your brand, as applicants will appreciate a positive experience even if they’re unsuccessful

Here’s how to do it. First, refer to your job description, person specification and competency profile for each role and list the essential shortlisting criteria, which could include: 

  • Educational qualification or equivalent – for example a graduate position requiring a 2:1 minimum degree
  • Experience – such as a secretarial role needing Minute taking experience
  • Skills – an HR role requiring experience using a specific software, for example
  • Knowledge – such as a social media role needing knowledge of a range of social media tools
  • Behavioural competencies – e.g. an accountancy role needing evidence of influencing at Board level.

When deciding on the ‘essential criteria’, you could also include ‘desirable criteria’. This helps to distinguish between candidates who meet only the essential criteria for the role, and those who offer additional relevant qualities. Asking others to help you develop the shortlisting criteria provides useful discussion to identify ‘essential’ versus ‘desirable’ criteria.

Next, assess applications against the shortlisting criteria to screen out unsuitable candidates.

Telephone Screening Interviews

One screening option is to conduct brief telephone interviews with applicants as a second screening stage, after establishing that candidates satisfy the basic qualifying criteria for the role.

Telephone interviews can be time consuming, but are useful for telephone-based roles, such as a call centre adviser, as you have an opportunity to assess applicants’ verbal communication skills. A script setting out what questions to ask will help to ensure consistency across all candidates. You may also want to use a telephone screening interview to establish or confirm any queries you may have on their application and to assess the verbal communication skills of the candidates.

At this early selection stage, a 20-minute telephone conversation should be sufficient.

The Shortlisting Process – Scoring, Ranking and Weighting

The next stage is to shortlist candidates. An assessment form will help the shortlisting panel to record the relevant evidence in support of its decision, and proves you carried out a systematic approach.

The categories listed should relate to the shortlisting criteria for the role; for example, qualifications, work experience, level of responsibility, competencies and salary level. Include a section for comments to highlight areas to probe at the next selection stage for shortlisted candidates.

A scoring and weighting system helps the shortlisting panel to rank candidates in an objective and consistent manner. Rate each candidate against each category of the criteria using the rating scale 1-5, with 5 indicating that the applicant ‘exceeds requirements’ and 1 indicating that he or she ‘just meets requirements’.

Next, apply weighting to your shortlisting criteria by attaching different levels of importance to certain criteria according to its level of relevance to the role. Use a simple 1-3 weighting framework where 3 indicates ‘very important’, 2 indicates ‘important’, and 1 means ‘quite important’.

Once candidates have been allocated a total score, they should be ranked in order of their scores.

Avoiding Bias and Discrimination in Shortlisting

Using appropriate shortlisting criteria helps to avoid bias and discrimination. Without criteria, your organisation may end up with an unsuitable pool of candidates, and claims of discrimination will be harder to defend. To help prevent this, ensure that only relevant information is considered by removing all personal information on CVs and application forms prior to shortlisting.

One potential challenge relating to discrimination is length of experience. Asking for a minimum number of years’ experience can lead to age discrimination, as a younger job applicant has not had the opportunity to accrue a specific number of years in a role. Further, shortlisting candidates based on years of experience could mean discriminating against women who took time out to raise children, or applicants who needed time away because of a disability. Therefore, consider what a candidate with the relevant experience should be able to do and define the job requirements in those terms when developing the shortlisting criteria.

And finally, to prevent bias and discrimination, avoid making assumptions! The shortlisting process should consider the evidence supplied by a candidate to demonstrate how they meet the shortlisting criteria – don’t make assumptions not based on factual evidence.

Register Now for the Autumn Employment Law Update Workshop!

If 25 October 2018 isn’t in your diary already, put it in now!

Not only will you be able to learn about the latest changes in Employment Law, but you will also benefit from hearing Jenny Collis, of Fit&Able, speak about keeping your employees healthy at work. Back and neck pain, and upper limb symptoms are the most reported musculoskeletal complaints in the workplace. As an Occupational Health Physiotherapist, Jenny will highlight the most common complaints, review your employer’s obligations and provide strategies and solutions for management in the workplace. This is one not to be missed.

Running from 9.30am to 1pm, the venue is The Meeting Room at Hennerton Golf Club in Wargrave, Berkshire, and the cost is just £20 plus VAT to include refreshments. For more information, click here, or to go direct to our Eventbrite page and book online there.

Fair Dismissal Can Prevent Tribunal Troubles

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Did you know that since the fees for tribunals were waived in July 2017, there has been a 90% increase in employment tribunal claims?

To protect yourself from risk of being taken to court for unfair dismissal, it’s important to know the difference between ‘fair’ and ‘unfair’ dismissal, as well as ‘wrongful’ and ‘constructive’ dismissal.

Do you know the differences? What about the relevant laws, and codes of practice? If you’re unsure of any of these and don’t want to risk paying thousands of pounds in compensation to employees taking you to tribunal, this blog will help.

What is Fair?

When you need to carry out a dismissal, it’s important to ensure that it’s fair on the employee not only for them, but also for the reputation and integrity of your organisation.

One of the first things you, as an employer, must understand is the differences between ‘fair’ and ‘unfair’ dismissals. ‘Unfair’ dismissal is usually where an employee was dismissed, for example, because of pregnancy; a family situation such as time off for dependents; or in contravention of the Working Times Regulations. These are just three examples of many that could end with you in a tribunal court if they weren’t handled correctly.

For a dismissal to be deemed ‘fair’ as stated under Section 98 of the Employment Rights Act 1996, it would need to be carried out for one of these five reasons:

  1. Capability or performance
  2. Conduct
  3. Redundancy
  4. Contravention of a statutory duty or restriction
  5. “Some other substantial reason of a kind such as to justify the dismissal of an employee holding a position which the employee held.” (This is a direct quote from the Employment Rights Act 1996.)

Let’s delve into each point a little further:

  1. Capability or performance

An employee can be dismissed if:

  • They do not have the capabilities to do the job duties they were employed for
  • They have the capabilities, but are unwilling to do the job properly

However, you should still have a process of looking further into each point to find out more about their situation, especially as poor performance could be down to health issues, or because of stress. Read more about that here.

  1. Conduct

When there’s clear evidence of misconduct, such as persistent lateness or unauthorised absence from work, action should be taken to try to understand why the misconduct is happening, and to give your staff member a chance to improve. For more information on this, read my blog on Managing Capability and Conduct Issues Effectively to Avoid Dismissal.

If gross misconduct is evident, this must also be handled carefully and within the legal parameters of employment law. For more on this, click here.

  1. Redundancy

Making people redundant is always difficult, but may be necessary if the business is changing in some way, moving location, or even closing down. To genuinely make someone redundant, you must demonstrate that the employee’s job will no longer exist. Of course, the employee has certain rights throughout the redundancy process, such as needing time off to look for a new job, and they may be entitled to redundancy pay. Read more on this subject here.

  1. Contravention of a statutory duty or restriction

One example of this is of employees not having the right to work in the UK anymore, or not having proof of their immigration status. Other examples can include undertaking Trade Union duties, or not providing relevant work evidence to support their employment.

  1. Some other substantial reason

If none of the above four reasons for dismissal apply, then the phrase “some other substantial reason of a kind such as to justify the dismissal of an employee holding a position which the employee held” becomes admissible. Examples include:

  • Non-renewal of the fixed-term contract of an employee recruited as maternity leave cover
  • Dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree
  • A personality clash between employees makes working together impossible
  • Where there are concerns relating to the safeguarding of children or vulnerable adults, but there are no grounds for a misconduct dismissal

I have covered this last point in more detail in other blogs that you can read here.

Even where a dismissal is potentially fair for “some other substantial reason”, it’s important that you follow a fair procedure and act reasonably in dismissing the employee, taking into account all the circumstances.

Being such a minefield, it’s important to get expert help when you need to dismiss someone to reduce the risk of being taken to court.

Before you dismiss any member of staff, for whatever reason, it is best to seek professional HR advice. You can call me on 0118 940 3032 for a confidential chat or click here to email me.

Dismissal for Some Other Substantial Reason: Demystified – Part Two

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In a recent blog post, I set out the reasons that an employer could dismiss an employee under the ‘dismissal for some other substantial reason’ (SOSR) clause. There, I went into detail about how to manage an awkward situation where a third party – usually an important client – states that they no longer want one of your employees on their site. Click here to read it again, or if you missed it.

In this month’s blog, I’m focusing on the problem of when employees refuse to work with colleagues.

Refusal to Work with Colleagues

In most walks of life, we’re free to choose our friends. But at work, we have little influence on who we work with. Often, there’s no issue – even when employees don’t like each other, they usually tolerate one another. But when a group of employees refuse to continue working with one of their colleagues, what can you do?

Reasons why employees might refuse to work with a colleague include:

  • Serious personality clashes
  • Discovering their colleague is HIV positive
  • An employee becoming ‘socially unacceptable’, e.g. by having objectionable behaviour, or criminal convictions or charges, e.g. child pornography or sexual offences

Initial Action

As soon as you’re informed of a situation, don’t delay! Act early to stop a minor problem escalating into a situation where dismissal is demanded. Investigate what is behind the breakdown in relationships by interviewing and taking statements from all the relevant parties. From that, try to persuade the employees to patch up their differences, taking whatever constructive measures necessary to alleviate the situation. Depending on the breakdown reason, measures may involve allaying concerns or fears, and even arranging an education programme, for example where the objections centre around an employee being HIV positive.

Try not to be easily swayed by employee pressure, particularly if the allegations are based on groundless prejudice, are unreasonable or are a complete overreaction. You may even have to consider disciplining the protesters if their actions amount to bullying or harassment of the employee in question. This may not feel like a palatable option as this could lead to even further disruption of the workforce, but you need to protect your business interests, and widespread disruption is bound to be a threat to profitability and customer relations.

Where employees’ objections are well founded, it may be appropriate for the employee with whom the problem has arisen to be disciplined if the issue is misconduct or offensive behaviour. The fact that you are tackling the issue may be sufficient to calm the situation down and appease your staff.

Employee Pressure to Dismiss

Dismissal from employee pressure should always be a last resort. If all the steps taken to alleviate the situation and improve work relations hasn’t worked, and the breakdown is clearly irreversible, then it may be possible to dismiss the employee on SOSR grounds.

Remember that the reason for dismissal must be substantial. So if disruption amongst the employees is seriously harming your business, then you have no choice but to dismiss. A tribunal will want to see evidence pointing to an ultimatum having been served on the employer by the employees. Often, employees will use the ‘It’s him or us’ pressure tactic, which should be sufficient if the relationship breakdown can be reasonably assessed as irremediable. However, this conclusion can only be reached after you have taken all reasonable steps, short of dismissal, to improve the situation.

If the relationship breakdown only affects two employees, it’s much more difficult to successfully plead SOSR as fair reason for dismissal as this situation is unlikely to be deemed ‘substantial’.

If all your attempts to improve relations are unsuccessful and the reason for dismissal is indeed substantial, an employment tribunal will explore whether the dismissal of the employee was reasonable in all circumstances. The tribunal will consider whether the objections of the workforce were reasonable, or whether they were motivated by malice or blind prejudice, making the dismissal an injustice to the employee. Unfairness to the employee is an essential part of the equation.

The tribunal will also explore your conduct and the procedure you went through to reach the decision to dismiss. Part of that procedure is considering whether the employee can be given alternative work, or be relocated to another workplace, with his or her agreement.

HIV

If your staff are pressurising to dismiss an employee who is HIV positive, usually because of fear of infection, you will need to take the necessary action to counteract what is unwarranted prejudice, and to protect the employee from bullying and harassment. Allay groundless fears by educating staff about the transmission of HIV and the fact that it imposes no risk to others from normal work or social contact. Remember that an HIV positive person is automatically deemed to have a disability under the Equality Act 2010. Therefore, you risk a disability discrimination claim and a claim for unfair dismissal if you dismiss an HIV-positive employee from staff pressure. As HIV disproportionately affects gay and bisexual men, you also risk a sexual orientation discrimination claim. It’s essential that you protect the employee from harassment by colleagues, which may involve taking disciplinary action against the employee’s colleagues.

If efforts to consult with staff to allay their fears fail, it may be appropriate to transfer the employee to alternative employment, with his or her agreement, rather than considering dismissal.

Employment Law Update Workshop

Join us at our next Employment Law Update Workshop on 25 October 2018 for just £20 +VAT. Click here to book your place online. Come along and ask all your HR questions!

Settlement Agreements Used to be Called Compromise Agreements. What Changed?

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In the UK, a compromise agreement – now known as a Settlement Agreement – is a specific type of contract, regulated by statute, between you the employer and one of your employees (or ex-employees) under which your employee receives payment in exchange for agreeing that they will have no further claim against you as a result of any breach of a statutory obligation by your organisation.

A Settlement Agreement is a legally binding contract which can be used to end an employment relationship on agreed terms. Their main feature is that they waive an individual’s right to make a claim to a court or employment tribunal on the matters that are specifically covered in the agreement. Settlement Agreements may be proposed prior to undertaking any other formal process. They usually include some form of payment to the employee by the employer and may also include a reference.

For a settlement agreement to be legal, the following conditions must be met:

• The agreement must be in writing
• The agreement must relate to a particular complaint or proceedings
• The employee must have received advice from a relevant independent adviser on the terms and effect of the proposed agreement and its effect on the employee’s ability to pursue that complaint or proceedings before an employment tribunal
• The independent adviser must have a current contract of insurance or professional indemnity insurance covering the risk of a claim by the employee in respect of loss arising from that advice
• The agreement must identify the adviser
• The agreement must state that the applicable statutory conditions regulating the settlement agreement have been satisfied.
• A Settlement Agreement can be proposed by both employers and employees although they will normally be proposed by the employer. A proposal can be made at any stage of an employment relationship.

Acas has produced a comprehensive Code of Practice on Settlement Agreements, which you can download for free here. It is very important to take HR advice before starting a process of discussing a Settlement Agreement with your employees so do get in touch if you have any questions. Please call me on 0118 940 3032 or click here to email me.

Dismissal for Some Other Substantial Reason: Demystified – Part One

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The whole dismissal process can be a minefield for employers, so it’s important to understand the differences. I wrote about those differences in a recent newsletter, but the term ‘dismissal for some other substantial reason’ (SOSR) needs further clarification.

There is a danger that some employers use SOSR as a convenient way to get rid of unwanted employees. But there really must be a good, reasonable and substantial reason for doing so. You must demonstrate that you followed a fair procedure, because if you didn’t, an employee can successfully claim unfair dismissal.

Under Section 98 of the Employment Rights Act 1996, the potentially fair reasons for dismissal are:

• Capability
• Conduct
• Redundancy
• Contravention of a statutory duty or restriction
• Or, if none of these apply, ‘some other substantial reason (SOSR) of a kind such as to justify the dismissal of an employee holding a position which the employee held’

Examples of dismissals that could be held for SOSR include:

• Non-renewal of the fixed-term contract of an employee recruited as maternity leave cover
• The dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree
• A dismissal because of a personality clash between employees that makes it impossible for them to work together
• Dismissal of an employee where there are concerns relating to the safeguarding of children or vulnerable adults, but where the employer does not have grounds for a misconduct dismissal

Client Refuses to Have an Individual on Site

Another valid reason for using SOSR is when a client reports that they no longer want one of your staff members back on their site. Naturally, you need to protect your commercial interests and maintain a good business relationship with the client, but you must also balance the employment rights of the employee.

If you were to dismiss the employee without taking any steps to find a solution, or take account of any injustice towards the employee, you run a high risk of a successful unfair dismissal claim against you. But if you have acted reasonably and investigated fully before deciding to dismiss, SOSR can safely be used as a fair reason for dismissal.

What’s the Problem?

Firstly, investigate why the client has objected to the employee to see if the problem could be resolved. If the reason is evidently misconduct at the client’s workplace, then it needs to be dealt with accordingly using your disciplinary procedure. Where the reason is less clear, such as the client disapproving of a particular working practice, the employee could be asked to change their process to match the client’s needs.

When the situation is serious, a tribunal will need to be satisfied that you have taken the appropriate steps to find any scope for resolution. Ensure you have a written record of discussions with the client when trying to resolve the problem; ask them to provide their objections in writing. If you cannot establish the truth of the client’s allegations, or do not agree with their actions, the commercial pressure on you both may still provide sufficient grounds for a fair dismissal on SOSR grounds.

What About the Employee?

If your client is adamant that there can be no satisfactory resolution, and that the employee should not return, it’s important to consider what injustice might be caused to the employee when deciding whether to dismiss. For instance, how long have they worked for you? How satisfactory has that service been? What are their prospects on the labour market? Case law has shown that none of these factors is conclusive, but should all be considered prior to dismissal.

What other alternatives are there rather than dismissal? Could you offer redeployment within your organisation? If it’s large enough, there may be a different type of job that your employee could do.

The Employee’s Contract

Your case will be strengthened if the employee has been warned that the client may intervene to have him or her removed. These days, many commercial contracts include a clause stating that the client may ask the employer to remove any employee whom the client considers unsuitable. It would help to include this in the employee’s contract of employment, as it shows reasonableness when acting on third-party pressure. Your employees should also be informed of the importance of maintaining good working relations with clients during their induction. The induction is also an ideal time to reiterate the client’s right to insist on the removal of employees.

In Part Two of Dismissal for Some Other Substantial Reason: Demystified, I’ll cover the difficult subject of refusal to work with other colleagues. Look out for that one coming soon.

Meanwhile, if you need any further advice on dismissal or any other staff issues, do call me on 0118 940 3032 or click here to email me.

Health and Safety in the Office

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This blog is a guest post from Quadriga Health and Safety – experts in keeping employees and experts in keeping employees and business healthy and safe at work.

Office health and safety is often overlooked in business. Many office jobs, like sitting at a desk and typing at computer, don’t seem to suggest much risk. However, working in an office environment can present many hazards each day. If your business is based in an office, or includes an office, as a manager you have a legal responsibility to keep that environment safe for people to work in and ensure that effective fire precautions are maintained.

This blog explains what you should consider to provide good health and safety in an office.

Carrying Out an Office Risk Assessment and Making Changes

When you employ five or more people, you have a legal obligation to have a written Health and Safety policy. Part of the process of putting together a policy is to carry out a risk assessment. In an office, this should involve identifying the hazards and risks across the whole office area and evaluating them, before making changes and putting processes in place to mitigate them. A fire safety risk assessment is also required, laying out how fire risk is minimized and what precautions such as fire alarms, fire extinguishers, emergency lighting, fire doors and staff training are required.

Hazards and changes could include removing computer wires that are trailing across the floor, or placing a carpet along the floor of a slippery corridor. You should record all the information – hazards, changes you make and the controls required – and keep it on file for future reference.

Creating a Health and Safety Induction for Your Office Staff

Many potential office hazards, which can lead to accidents and injuries, can be caused by your staff. This could include an employee:

• Tripping over a box of files that have been left on the floor
• Obstructing electrical equipment or placing combustibles near heaters
• Falling off a chair after using it to reach items on a high shelf
• Causing a filing cabinet to topple over after leaving a heavy cabinet drawer wide open
• Injuring their back after bending down to carry a heavy box of printer paper
• Obstructing a fire exit leading to difficulty or dangers in evacuating a building
• Suffering a neck injury from sitting uncomfortably at a desk when working on a computer
• Wedging fire doors open.

To prevent such accidents from happening, you should put processes in place and make sure your staff follow these rules whenever working in the office. One way to do this is to have each member of your staff complete a health and safety induction, including new employees when they join your company. This could involve them watching official videos about potential hazards in the office and how to avoid them, as well as training sessions about the safety procedures they should follow. You could also provide leaflets and display posters to remind staff about office safety. Also consider a first day induction on fire safety, the importance of fire precautions such as keeping fire doors closed, how to raise the alarm, how to evacuate the building and the escape routes and assembly points.

Safety Procedures for Your Staff to Follow in the Office

These could range from instructing employees to do simple things, like:

• Shutting filing cabinet drawers after using them
• Keeping corridor floors and doorways free from clutter
• Using a step ladder, rather than a chair, to reach something on a high shelf
• Taking part in regular fire drills.

You could also provide them with training to follow more detailed procedures, such as:

• Knowing how to make sure an office chair and computer screen are set at the correct height to avoid neck and back injuries when typing at a desk
• A step-by-step process of the correct technique to bend, lift and carry heavy items
• The process they should follow when reporting an accident
• Knowing what to do in the event of a fire, including training on how to raise the alarm, use a fire extinguisher and the process of exiting the building safely.

To ensure that staff carry out such processes correctly, you should also provide the right equipment for them. This includes items like stepladders and adjustable office chairs, as well as an accident book to report any accidents that take place.

Quadriga Can Help You with Office Health and Safety

You should always ensure you provide effective health and safety, whatever company you run, whether it’s an office, shop or factory. With our expert health and safety service, we can provide you with what you need to keep you, your team and your business safe. We hold regular training courses and seminars and can also provide you with tailored consultancy. To find out more, please call Quadriga on 0118 929 9920 or click here to email us.