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NEW HR Update - Employee mistakes
Last Modified on: 2010/06/11 15:36
Last Reviewed on: 2010/06/11 15:52
Employee mistakes and client complaints
Surviving the World Cup; avoid scoring an own-goal with your staff!
Employee mistakes and client complaints
Everyone makes mistakes; that is a fact. But what happens when a staff member makes a mistake that has disastrous consequences for the Company, or the client of a Company? And how does a small business handle the fall out? In this month’s HR update, prompted by feedback from the last update, we take a look at this thorny subject.
You may remember last year Ealing Council’s IT network was infected by a computer virus that brought all its services to a halt after an employee plugged an infected USB memory stick into their computer which then infected every single Council computer and tried to connect with over 500 Internet sites. Ooops. What are the employment law implications of this situation? How does an employer deal with these kinds of mistakes, particularly those which can result in financial loss or reputational damage?
For the answer, an employer needs to investigate the error and what exactly happened. Was it a case of negligence, deliberate disregard for procedure or perhaps a genuine error on the employee’s part? And what happens if the mistake affects a particularly valuable client?
Supposing, in the case above, the employee had deliberately disregarded the IT policy by bringing in external IT equipment; this would be subject to disciplinary action, and subject to the explanation, action could be taken against the employee. If it was a genuine mistake, perhaps she picked up the wrong USB stick, then probably the fact that her actions caused such disruption would prevent similar occurrences. Check your policy and if issues occur, consider amending and reissuing it to staff.
What if a client is particularly disrupted and financially affected by a mistake an employee has made? And what if they demand action to be taken against the employee? This could mean a warning, removal from working on their account or even dismissal. Such dismissals may potentially be fair - under the 'some other substantial reason' – however, caution should be taken here. You’ll need to consider, amongst other factors, the severity of the mistake, the resources and size of the Company and the significance of the client.
The lesson here is that, you need to be fair, firm and consistent in dealing with employee mistakes, and make sure policies and procedures are amended in the wake of any mistakes; i.e. you must learn from mistakes!
Surviving the World Cup; avoid scoring an own-goal with your staff!
We’re less than a month away from the World Cup; with all the excitement (and probable disappointment) that ensues. Clearly not every employee will be glued to the TV during this time, but it’s fair to expect a large proportion to be interested in watching the games, some of which will be transmitted during work time. So have you decided how you’ll handle the disruption to your workforce? Here are some suggestions:
Introduce World-Cup flexitime
Consider, if feasible, allowing staff to work outside the normal hours, on a temporary “World Cup” basis, in order to make up time spent watching the games in work time.
Internet use
Will you let staff keep track of scores on the internet? With minute to minute updates this could also be a source of distraction, and whatever you decide, let staff know what is and isn’t acceptable both in terms of your IT policy and specifically, during the world cup if different.
Offer holiday or unpaid leave
You could consider providing unpaid leave for staff, like Asda did during the 2006 World Cup where it gave its 150,000 UK employees the chance to take up to two weeks’ unpaid leave during the tournament, subject to operational requirements.
Radio broadcasting
Will you allow employees to listen to the games on the radio while they work? This is an option but be warned; they may well not be focused on work and with that comes the risk of mistakes, especially concerning if there are health and safety considerations.
Make a team bonding event of it
Probably the most popular solution from a staff perspective is screening the games during work time, if you have the room. An on-site screening, or even a trip down to the local pub, is a good opportunity to build team spirit; however, it should be remembered that not everyone will be interested in watching the football, or even the same football games, so consideration needs to be given to this. If you have a TV in a rest room but don’t allow time off for the game, some employees may be tempted to not return to work after their breaks are over if matches are at a crucial point.
HR Update - Fit note v Sick note
Last Modified on: 2010/03/15 11:17
Last Reviewed on: 2010/06/11 15:42
The Department of Work and Pensions have announced that from next month, GP sick notes will be replaced by “fit notes” (aka Statement of Fitness for Work) in an effort to support people in getting back to work. Whilst most would agree that something had to be done to improve the current sick note system, the new fit note system has not been universally welcomed by employers and GPs.
What can we expect to see on “fit notes”?
The new fit notes will mean that doctors can advise that an employee is unfit for work or may be fit for work and will give more information on how your employee’s condition may affect the role they perform. The statement is still not required until after the 7th calendar day of sickness.
Fit notes will focus on what employees can do, with GPs listing changes that employers can make to help an employee back to work. The changes included are:
• A phased return to work
• Altered hours
• Amended duties
• Workplace adaptations
Where the GP has ticked “may be fit for work”, there is a large space for the doctor’s comments on the effects of your employee’s condition and what adaptations could help them return to work.
The DWP advise that the notes are not about trying to get people back into work before they are ready, but about moving the challenges to the returning. The scheme places an onus on employers and employees working together to get staff back to work despite their illness or injury. The advice is not binding, it is the employer’s prerogative on how to act on the doctor’s advice. If the adaptations suggested by the doctor are not possible, employers should explain the reason to the employee then treat the note a “not fit for work” note.
What’s the prognosis?
The scheme has not been universally welcomed. There is concern within the medical profession that GPs are not occupational health specialists and as such, should not be given the responsibility of making thorough recommendations regarding someone’s condition and possible adaptations to their role, which they may have no knowledge of, particularly within a 5-10 minute appointment.
From an employer’s perspective, there is the unknown of what the implications are, particularly under the Disability Discrimination Act, of not implementing the GP’s advice. Although the DWP state that the statement is not binding, the system has yet to be tested at Tribunal level. On a separate note, as many HR professionals are too aware, deciphering doctor’s writing in terms of the condition can be tricky enough, it remains to be seen, pardon the pun, if this paragraph will cause more deciphering difficulties.
From an employee’s point of view, there could be concern that even with the adaptations, the employee is still not fit for work and refuses to return. Although this is an unlikely scenario, it is one which should be considered carefully before any disciplinary action is taken.
So what can/should employers do?
It is important that your sickness absence policy gives you the flexibility to manage your employee’s return to work in the face of the advice of a Statement of Fitness for Work. It is therefore advisable that any sickness absence policy and contract allow you to make the final decision regarding fitness for work based on your knowledge of the role.
HR Update - Who's left holding the baby?
Last Modified on: 2010/01/29 17:03
Last Reviewed on: 2010/03/15 11:24
Welcome to January's HR Update.
In this month's update:
1. Holding the baby: Dads to have 6 months paternity leave
2. Real-life problem: Missing retirement dates
1. Holding the baby: Dads to have 6 months paternity leave
Under new Government plans, due to take effect for babies born after 3rd April 2011, fathers will be able to take up to six months' paternity leave while their child's mother returns to work. This is in addition to the current paternity leave legislation which gives fathers 2 weeks paternity leave but offers more flexibility for the last 6 months of maternity leave as under the new plans, parents can transfer the second half of the mother’s maternity leave to the father.
So will it be paid? Yes but not full pay. During the paid element, the fathers would be eligible for statutory government pay of £123 a week. They would then be allowed to take an additional unpaid three months off, which would effectively allow couples to have a total of 12 months' leave between them (6 for the mother, 6 for the father).
Whilst these measures allow for more flexibility, particularly for families where the mother is the higher earner, there has been criticism from many sectors that these plans put more pressure on businesses in an already difficult economic climate. It is difficult to predict how many families will take up this alternative, however, ministers estimate that between 4% and 8% of those eligible for the new leave will take it, with only 1% of small businesses expected to be affected.
There is also a question over whether this scheme is open to fraudulent claims. Official documents reveal there will be no eligibility checks by the Government when fathers have the right to extended leave. Fathers are only entitled to take the leave if their wife or partner has gone back to work but Government papers suggest that employees will be able to 'self-certify' that they are eligible, prompting concerns that businesses could be de-frauded by men whose partners have not really returned to work.
2: Real-life problem: Missing retirement dates
Q. As an organisation we hire staff of all ages and we have a number of employees who are over 65. We didn’t go through the statutory retirement procedure when they turned 65, so how do we go about retiring them now?
A. As long as you still follow the statutory retirement procedures, it is still possible to retire someone even when the retirement date has passed. The process is as follows:
• write to the employee giving them six months notice of an intended retirement date
• inform them that they have a right to request to work beyond this date
• consider any request to continue working
• give them the right of appeal if you refuse their request
We advise that you do not give reasons for why you are turning down their request; retirement is a fair reason for dismissal and attempting to justify the decision could lead to a number of problems from causing offence to risking a potential tribunal claim.
HR Update - Employment Law Update
Last Modified on: 2009/11/24 17:04
Last Reviewed on: 2010/03/15 11:24
1. You don’t qualify!: What constitutes a break in service?
Continuous service is a fundamental concept that most HR professionals are all too aware of. After all, for staff it means the difference between qualifying, and not qualifying, for a number of benefits; including entitlement to request flexible working, maternity and paternity pay, and of course, it is an important factor in assessing period of notice and any compensation which may due, for example, redundancy pay and unfair dismissal compensation.
Some staff may at some point leave your employment, perhaps to study, perhaps to travel or for a career break and return within a short period. But what constitutes a break in service for the purposes of employment?
The law states that an employee’s continuous service is broken if their employment is interrupted by “a week or more”. Sounds straightforward? At first glance yes, it is. However, a week is defined as “a period of seven consecutive days that begin on a Sunday and ends at midnight on the following Saturday”. Again, sounds straight forward until you’re faced with someone who leaves your employment on a Tuesday and is re-hired 10 days later, on the Friday. Although your employee has been out of the business for 10 days, the requirement of a Sunday to a Saturday interruption has not been met, and therefore, their employment is continuous.
Several of our clients have come across this exact issue: and have experienced problems when calculating length of service for redundancy pay. We advise employers who re-hire staff after a short period to leave a gap of 2 weeks and to re-issue them with a whole new contract, making it clear that their employment starts on the new date, and that no period of service prior to this date counts towards their continuous service.
2. Case of the month: Belief in climate change is a “philosophical belief”
This month saw the judgement in Grainger Plc v Nicholson: an Employment Appeal Tribunal has held that a belief in man-made climate change, and the alleged resulting moral imperatives, is capable of being a 'philosophical belief' for the purpose of the Employment Equality (Religion or Belief) Regulations 2003.
This is the interesting case where Nicholson, the head of sustainability, was made redundant from property company Grainger Plc and claims he was unfairly dismissed because of his belief in climate change.
The Employment Equality (Religion or Belief) Regulations 2003 (the Religion or Belief Regulations) came into force in December 2003 and implement the religious discrimination aspects of the Equal Treatment Framework Directive 2000/78/EC. They prohibit direct discrimination, indirect discrimination, discrimination by way of victimisation or harassment in the workplace by reason of any religion or belief. The term 'belief' is defined as 'any religious or philosophical belief'.
This is the first reported case where a claimant has successfully argued a belief not related to a religious belief may be protected under these regulations. Previously, tribunals have taken a slim interpretation of what could amount to a “belief” so watch out for further updates on other protected beliefs.
HR Update - Guidance on Mediation
Last Modified on: 2009/10/30 15:53
Last Reviewed on: 2009/11/24 17:06
It was reported in July 2009 that there has been a 22% increase in unfair dismissal claims to 55,000 in the last year; with blame for the increase landing squarely at the feet of the Statutory Dispute Resolution Procedures and the much publicised recession. The new ACAS Code of Practice which replaced the Statutory Dispute Resolution Procedures, places less emphasis on the mechanics of how to manage disciplinary and grievance issues and offers more flexibility to resolve problems at an earlier stage.
One of the recommended steps in handling a grievance is exploring the possible benefits of resolving the issue through mediation either before a full fledged grievance lands on the desk, or as an alternative to following the grievance procedure. Whilst it is not a compulsory element to the grievance procedure, it can help to resolve disputes in the workplace. But what is ìmediationî? Weíve had many calls from clients querying whether they should include mediation in their policies, and what it involves in practice, so weíve put together the following information to guide you through the concept of mediation in the workplace.
What is mediation?
Mediation is a tool for resolving disputes by bringing employees together to reach agreement on how they can work together in the future. In order for mediation to work, the parties need to enter into it voluntarily and with an open mind, in the spirit of aiming to agree on actions for both parties to undertake in order to resolve any future conflict. Many grievances and workplace differences are caused by poor communication, and mediation can bring out into the open the issues faced by both parties in a controlled environment with a mediator ensuring both parties are heard.
When is mediation a good solution?
Mediation can be a tool to resolve many issues in the workplace, specifically in instances where someone feels bullied, harassed or there is a breakdown in communication. The key to its success is whether the two parties have the skills and willingness to change their own behaviour. Many disputes in the workplace come down to personality clashes; and mediation can deconstruct the problem and uncover actions that remove the personal element of the problem so both sides can focus on moving forward.
Who should be the mediator?
Ideally, the services of a trained, external mediator should be retained to ensure that all parties are comfortable with the independence of the mediator. However, this is not always possible for various reasons including lack of budget and lack of well known providers of this type of service. Many companies nominate a mid management level, sensible, discrete employee for this type of role, and this can work well if that person is respected, diplomatic, has excellent communication skills and can take a legitimately impartial view of the situation.
What is the process?
The first step is to invite them to a mediation meeting, explaining the purpose, confidential nature and structure of the meeting. Both parties should be advised to prepare for the meeting, that they will be a given a certain period of time each to air their concerns about their working relationship and hear any constructive proposals.
The mediator plays a key role in the process during the meeting; keeping the employees to their respective timeslots and facilitating discussion around topics in dispute. It can be helpful to take a break and for each party to reflect on what has been said, and to reconvene in order to structure a way of working together that is acceptable to both sides. The mediator should draw up a written set of actions for both parties to sign and agree to and both employees should be given a copy.
Advantages of mediation Effective mediations allow issues to be resolved quickly and with minimal disruption to the workplace. It can prevent absence due to stress and lost productivity for everyone involved in a lengthy grievance procedure. But of most value, it can prevent issues spiralling into a heat of the moment resignation, and a constructive dismissal/discrimination claim landing on your desk, and, of course, the cost of the resulting Tribunal.
Disadvantages of mediation
Not all grievances concern disputes where mediation can be used as a tool for resolution. Due to its voluntary nature, it is also limited to cases where resolution and compromise are within the capability of employeeís; can they put their differences aside and work together? It also requires both employeeís to want to maintain their working relationship, and by the time a grievance is raised, their relationship may have gone past the point of no-return.
Should mediation be included in a grievance procedure?
As stated previously, it is not compulsory. However, it can play a helpful role in resolving issues at an early stage and therefore, if you have the resource, and someone ideally placed to play the role of mediator, it is worth including mediation as a possible step to be used in circumstances where the situation allows. Wording, along the lines of the following can be included in a grievance procedure:
At any stage in this procedure, the Company may request that the matter be dealt with via the process of mediation. Mediation is voluntary and will take place only if both parties are in agreement. However, the Company would ask that employees are open to any suggestion made by the Company to refer grievances to a process of mediation and hope that employees will co-operate with all efforts to resolve the dispute.
If both parties agree to mediation, the grievance procedure will be put on hold whilst the mediation takes place. Where the grievance is successfully resolved through mediation, the mediator will help the employees to draw up a written agreement that will be signed by both parties as acceptance of its terms.
In the event that no mutually acceptable solution is achieved through the mediation, the grievance procedure will be reconvened.
HR Update - Employment Law Update
Last Modified on: 2009/09/28 16:26
Last Reviewed on: 2009/10/30 15:56
Welcome to September’s HR Update
1. Age discrimination and the Heyday challenge
2. Holidays lost to sickness: new ruling
1. Age discrimination and the Heyday challenge
Last week the High Court upheld the law that allows employers to force employees to retire at 65. The judgement saw the end of the Heyday case, a long running legal challenge brought by two charities, Help and Aged and Age Concern to overturn the right employers have dismiss workers without any redundancy pay at 65; and the right not to hire workers over 65 as long as they stick to the correct procedure. The charities believe this is in breach of the EU's Equal Treatment at Work Directive.
Mr Justice Blake decided that the Default Retirement Age introduced by the government in 2006 did comply with an EC Directive against age discrimination.
However, he did say that there was a 'compelling case' for a change in the law.
The government has announced it is bringing forward a review of the compulsory retirement age, to 2010 and many believe this review will mark the end of this default retirement age. Many of the approximately 800 retirement-related employment tribunal cases, which have been on hold awaiting the outcome of this challenge, may now be dismissed on the basis that it is legal for employers to dismiss workers upon their 65th birthday.
But what is the correct procedure?
The retirement procedure that you should adhere to is as follows:
• between six and 12 months before the employee's 65th birthday, you must notify them in writing of the intended retirement date and their right to request to work beyond their 65th birthday if they would like to
• if the employee makes a request to work beyond their intended retirement date, you have a duty to consider the request and must normally hold a meeting to discuss it with the employee.
• if it is not practicable to hold a meeting within a reasonable period, you must consider any representations made by the employee before making a decision.
• if you wholly or partly refuse the request (you do not have to give a reason for refusal), the employee has the right to appeal against your decision
• the employee has the right to be accompanied at any meeting to discuss their retirement and any subsequent appeal meeting
2. Holidays lost to sickness: new ruling
The European Court of Justice (ECJ) has ruled that workers who go on sick leave during a period that has been scheduled as annual leave for the purposes of the Working Time Directive should be allowed to reschedule their annual leave days, even if that means allowing leave to be carried forward into a subsequent holiday year. The judgement follows the Pereda case where a specialist driver suffered an accident at work around 14 days before the start of his 4 weeks annual leave. The injury put him out of action for 6 weeks. His sick leave almost entirely overlapped with his annual leave.
The ECJ ruled that his period of sick leave should not have counted towards his holiday time which should be used to rest and enjoy a period of relaxation and leisure, rather than recovery from injury/illness. The ruling suggests that workers who fall ill during a period designated as annual leave may be able to insist on having their leave reclassified as sick leave and their annual leave ‘reinstated’ to be taken at a different time. This principle is likely to apply whether the employee falls sick before or during the actual period of leave.
This raises a question regarding what evidence of illness will the worker be required to produce in order to have their leave reclassified? If the individual has medical evidence showing that they would have been unfit for work then that would surely suffice. But if the worker does not have medical evidence, due to the illness lasting only a few days, or whilst holidaying away from home, will employers be expected to believe the worker and re-instate annual leave? We expect this to be tested in the forthcoming months so watch out for further updates on this topic.
HR Update - Employing Illegal Workers: Know the risks
Last Modified on: 2009/08/28 10:06
Last Reviewed on: 2009/09/28 16:48
1. Employing Illegal Workers: Know the risks
2. National Minimum Wage: Going Up
3. Statutory Redundancy Pay: Going Up
1. Employing Illegal Workers: Know the risks
It has recently been reported that some of Britain's most recognisable employers, including Pizza Hut, G4 Security and BP garage, are among more than 1,100 firms caught employing illegal immigrants.
Since the introduction of the new sponsorship system, the UK Border Agency has fined businesses nearly £10,000,000 for hiring illegal workers.
This month’s update focuses on how to minimise your risks of employing illegal workers, and if you suspect an illegal worker to be working in your organisation, how you can go about dismissing them fairly.
Making the headlines
You may have read about how a car wash firm, ‘Hands On’, operating at supermarkets across the south east, is facing a record £200,000 fine after Border Agency officers swooped and found 20 suspected illegal workers from Brazil, Ecuador, Nigeria, Iran, Ukrane and Afghanistan.
Gail Adams, UK Border Agency regional director, said: 'Employers should be warned. We are cracking down hard on those who seek to profit by abusing the immigration rules. Employers who don't play by the rules will get struck off our register, lose the right to recruit staff from outside Europe, face on the spot fines and could potentially end up in jail.'
This may be an extreme example of rule flouting, but on the other end of the spectrum, G4 Security were issued with a financial penalty after an enquiry ruled that an officer was working in excess of the 20 hours a week permitted on a student visa.
What legislation are they flouting?
The Asylum and Immigration Act 1996 makes it a criminal offence to employ a person from outside of the European Economic Area (EEA) who is subject to immigration control unless that person has permission to work in the UK. The Act requires all employers to make checks on every person they hire to ensure they do not employ illegal workers. The checks should form part of basic recruitment practices and provide employers with a statutory defence should they later find out that one of their employees is in fact an illegal worker, and are prosecuted. Without proof of these checks, employers will not have a defence.
In February 2008, the UK Border Agency launched a new system designed to make it easier for highly-skilled workers to enter the UK, but more difficult for those with lesser skills. Employers who wish to sponsor migrant workers must first register as a sponsor, which involves a visit from a UK Border Agency officer.
Penalties for non-compliance
The most severe penalties, unlimited fines and prison sentences, are for those companies who knowingly employ someone who does not have the right to work in the UK. But for less diligent employers without an excuse, they could be liable for a civil penalty of up to £10,000 per illegal worker.
Checking documents
The Home Office sets out a document checking process for employers which specifies certain documents that the employer should see, check the original and retain a copy of, for every employee,
click here for full details. If an employer can demonstrate that the right checks have been made, and it is then found that the person is an illegal worker, the employer will have a 'statutory excuse'.
Employers should carry out the document checks before the person starts work and repeat them every 12 months if a worker has a time limit on their right to work in the UK. We would also recommend diarising the expiration dates of any work permits or visas and ensure these are followed up and acted upon.
Pre-employment
As long as initial document checking procedures are applied to all employees in exactly the same way, regardless of their nationality or race and at the same stage in the recruitment process, then the process will not be discriminatory.
If the person can not or will not produce the acceptable documents from the Home Office lists or which appear to not be authentic, and a non-discriminatory process has been followed, the prospective employer can lawfully refuse to take the person on. In this case, employers should note down the reasons, together with a copy of any documents produced which will assist in defending any potential allegations of discrimination.
During employment
On discovering a worker no longer has the right to work, an employer should still act reasonably when dismissing them. With that in mind, we recommend employers investigate as fully as possible, invite them to a meeting, giving them the right to be accompanied and giving them the opportunity to refute the allegations that they don’t have the right to work. On the balance of belief, the employer could potentially dismiss the employee for “some other substantial reason” (ie reasonable belief that the worker does not have the right to work) or misconduct (if the employer has reason to question the validity of any document the worker has produced). Employers should remember to give the worker the right to appeal against the decision. It can be difficult to prove that someone does not have the right to work so following a fair process will help defend any allegation of unfair dismissal if the worker subsequently proves they did in fact have the right to work.
It is also recommended that employers make it clear in any offer letter and contract that employment is subject to proof of the right to work in the UK.
It is very important that employers act immediately on discovering that a worker may not have the right to work, to avoid committing the criminal offence of knowingly employing an illegal immigrant and being open to prosecution and/or an unlimited fine.
2. National Minimum Wage: Going Up
New rates for national minimum wage come into force on 1st October 2009; as follows:
Age Current After October 1st
16 to 17 £3.53 £3.57
18 to 21 £4.77 £4.83
22 and over £5.73 £5.80
3. Statutory Redundancy Pay: Going Up
As stated in previous HR Updates, as of 1st October 2009 the weekly amount of statutory redundancy pay will be going up from £350 per week to £380 per week.
HR Update - Swine Flu: Employer Advice
Last Modified on: 2009/07/24 14:58
Last Reviewed on: 2009/08/28 10:13
Welcome to July’s HR Update
This week’s update focuses on the “hot topic” of the moment; swine flu. In the UK, an estimated 100,000 people are being newly diagnosed with the virus each week and we’ve received numerous calls to our Adviceline on how organisations should handle staff absence due to swine flu. The Department of Health estimates that up to 50% of the workforce may require time off at some stage over the pandemic, with staff absent for seven to 10 working days. Below we’ve listed potential areas for organisations to consider mitigating the effects of this pandemic:
Staff shortage contingencies
It would be sensible to undertake a review of the basic operational requirements of your business should the workforce become heavily depleted. This review could cover; key areas of the business, minimum number of staff required to run each area, identify which staff could be re-trained or transferred to cover depleted areas, identify staff who could potentially work from home and equipment required.
You may wish to consider flexible working which would help those with childcare/dependant caring issues and would avoid staff travelling on public transport at peak times, thereby limiting exposure to the virus. Anyone who can safely work from home could be encouraged to do so and reporting procedures should be set up so work can be remotely monitored, if appropriate.
You may have to consider drafting in temporary help, and having an agency identified, with agreed rates, could help the process in the event that this measure is required.
Communication
You should educate staff on the signs and symptoms of flu to ensure early recognition and promote an environment in which staff who become ill feel that they can stay at home until they have recovered.
Ensure staff know that they should stay at home if they are sick, and for how long, who they should speak to and how often they should be contact during this time. It would be advisable to communicate the policy on dependant care, particularly if schools are closed.
It would also be prudent to have a single point of contact, perhaps within HR, to collate sickness absence figures on a weekly basis and review the situation against the basic operational requirements of the business.
The Health and Safety Executive recommends businesses use video-conferencing or teleconferencing to reduce the need for face to face client meetings, and to avoid unnecessary travel on public transport.
Managing absence; both for staff and their dependants
You should review your sickness absence policy in light of this pandemic to ensure it covers flu like absences and any measures that can be taken to limit the effects on the business, e.g. working from home whilst recovering. The policy should make it clear how often staff should be in contact when on short, medium and long term sick leave. It should also clarify arrangements with regards to sick pay; both company sick pay and Statutory Sick Pay.
The government has discussed the possibility of extending the amount of time off work for swine flu sufferers without a doctor’s sick note (ie self certifying) from 7 to 14 days. Most advice suggests that the recovery time is 4-7 days; doubling self certification may have an unnecessary effect on productivity, sending the message to fit employees to stay off for longer than necessary.
Health and safety: duty of care
There have been recent reports in the papers about how employers who fail to adequately protect their staff from swine flu could face lawsuits reaching £10,000’s. Amongst the scare mongering is the fact that as an employer, you are obliged to provide a safe working environment.
Any potential claimants would have to prove the virus was contracted at work and their employer did not do enough to prevent infection but they could pursue costly personal injury claims under health and safety legislation.
Therefore, we advise our clients to pay particular attention to the hygiene advice from the Department of Health. Installing anti-bacterial hand-gel in the kitchens and toilets and encouraging staff to use hand-gel regularly will help to contain the virus.
Click on the link below for the Department of Health’s booklet which explains how businesses can help reduce the spread of flu in the event of a pandemic.
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_097137
HR Update - Tips on Avoiding a Successful Tribunal Claim
Last Modified on: 2009/06/24 16:44
Last Reviewed on: 2009/07/24 15:01
With the number of Tribunals still on the increase, we thought we’d focus this month’s HR Update on what you can do to be best prepared for an Employment Tribunal, at every stage of the process, from disciplinary invite letters to briefing witnesses.
Who should hear the disciplinary and appeal?
1. Where an investigation has been carried out have a separate person hear
the disciplinary. The Tribunal will look for independence at each stage of the process.
2. Ensure the person hearing the appeal is independent and has not been party
to the original decision.
3. Don’t discuss the details or outcome of a disciplinary with any other staff member, at least until the outcome of the appeal has been confirmed. If the decision is overturned at appeal stage, it will leave you red-faced and could land you in hot water.
Document Management
1. Be specific in disciplinary invite letters: state the allegations and the possible outcomes (particularly dismissal, if that is being considered)
2. Print out, and enclose, the disciplinary policy with all invites to disciplinary hearings.
3. Be specific in outcome of disciplinary letters: state what mitigating factors were offered and, if appropriate, why they weren’t considered satisfactory
4. Ask the employee to agree to the accuracy by initialling the bottom of the handwritten pages.
5. Type the minutes up immediately; they should be contemporaneous i.e. made shortly after the meeting and reflect the handwritten notes.
6. Send the minutes of the meeting with any letter confirming the disciplinary action
7. If there is more than one copy of the document, ensure you “version” your documents. If there is inconsistency in any of the documents, it provides an opportunity for the Claimant, or their Representative, to question their validity.
8. Documents included in the bundle need to be cross checked to ensure that they are the final approved version and match the documents sent during the disciplinary process to the Claimant.
Tribunal Orders: Don’t Ignore
The Tribunal will send “orders” to instruct both sides on when to disclose the list of documents they will rely upon, to the other side. Don’t ignore any instructions from the Tribunal and avoid turning up to the Tribunal with fresh evidence that the other side hasn’t seen; the Tribunal will not be impressed.
Ensure that the witnesses write their own Witness Statements detailing their involvement in the process. This will ensure that their evidence will be given more naturally and it is a good exercise to refresh their memory on the sequence the events.
And shortly before: Briefing Witnesses
The Claimant or their Representative will try to discredit the disciplinary and appeal officers by trying to establish inconsistencies in the process. In some cases, 8 months may have passed since the dismissal so it is essential that the witnesses read all the information pertaining to their decision so ensure:
1. The disciplinary and appeal officer have complete clarity over the sequence of events that have occurred.
2. Witnesses know accurately which documents they used in the process
3. Notes are made on any investigation after the appeal hearing. These should be disclosed in the bundle.
4. You conduct a rehearsal cross examination: Ask them difficult questions to uncover any gaps in their memory of the process.
And Finally:
If you can, go and visit a Tribunal. Most Tribunals are open to the public and witnessing the sequence of events will go some way to removing the fear of the unknown. It is a formal occasion, with defined procedures, and seeing a Tribunal will help your witnesses prepare fully for the day.
HR Update - When is fiddling, fraud?
Last Modified on: 2009/05/27 10:31
Last Reviewed on: 2009/06/24 16:47
Welcome to May’s HR Update
1. When is fiddling, fraud?
2. Use of length of service in redundancy selection criteria
1. When is fiddling, fraud?
The recent media spotlight on the expenses claims of MPs has highlighted to employers the importance of carefully inspecting expense claims of their own staff. In fact, research shows that £1 billion of expenses are wrongly claimed every year and 5% to 20% of all expenses claims are either inflated or simply fictitious.
Expense claim “fiddling” generally falls into categories; inventing and inflating claims or breaching the policy on what can be claimed, for example, claiming for a satellite TV package and not just the cost of the Internet in that package.
So how can companies protect themselves from fictitious, inflated or invalid expense claims? An expense policy is a must; this should give guidance to staff on what they may claim, any limits in terms of value or time, and confirm the consequences of breaching the policy. Consideration should be given to subsistence budgets; where overnight stays are concerned will you reimburse the cost of meals, but not alcohol? Advise staff of your expectations at the outset by specifying amounts, for example, “if you leave home to travel to a client before 6.30am then you may add the cost of breakfast of up to £5.50 to your expenses claim”.
It is also important to detail in the policy what evidence is required to claim back any incurred expense, i.e. what receipts /evidence of purchase are required. It is also advisable to set a time limit for submission of expense claims, for example, within 6 months of incurring the business expense.
Without a clear policy on what is deemed acceptable, it is far more difficult to discipline, and ultimately dismiss, staff for breaking “the rules” unless the employee has submitted a blatantly fictitious expense claim. As with all policies, they must be circulated to all employees who may incur business expenses.
So when is fiddling, fraud?
That is a decision for the individual organisation. Clearly, in most companies, claiming for interest on a mortgage for a second home nearer the office, when the mortgage has been paid off, would amount to fraud, and the disciplinary policy should be followed to the full extent. Having a clear policy should make it easier for the company to distinguish between absentmindedness, ignorance (which should not be an excuse if the policy has been circulated) and downright dishonesty.
What to do if you suspect “fiddling”
If you suspect that one of your employees has submitted a fictitious or inflated claim, you should investigate thoroughly and act immediately. If expenses claims go unchecked, it will be more difficult to obtain evidence from the employee or to take disciplinary action further down the line.
What to do if you have overpaid expenses
If you have overpaid expenses, like in the cases recently highlighted for certain MPs, as long as your deduction from wages relates to overpaid expenses, you can usually deduct any overpayments. This should be done in a reasonable manner (so as not to breach the trust and confidence between employer and employee).
It is important to construct your policy with your business in mind; do employees travel overseas, in which case, how will calculate the exchange rate? And do your employees work from home, in which case, how will you allow them to reclaim phone calls and general office supplies?
2. Use of length of service in redundancy selection criteria
The Court of Appeal announced this week that Companies may take employees’ length of service in to consideration when choosing who should be made redundant.
In the case of Rolls Royce versus Unite, Rolls Royce argued that the use of length of service would put their younger workforce at a disadvantage, and therefore, it would constitute age discrimination. However, both the High Court, and now the Court of Appeal, ruled that length of service was an acceptable factor for a company to consider when scoring employees in a redundancy exercise, and not in breach of age discrimination legislation.
So what does this decision mean for you? It means that you can legitimately use length of service as one of a range of criteria, but should not rely on that factor alone. This judgement is good news for employers who increasingly need to have as much flexibility as possible over which staff are retained in a redundancy exercise.
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