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NEW HR Update - Tips on Avoiding a Successful Tribunal Claim
Last Modified on: 2009/06/24 16:44
Last Reviewed on: 2009/06/24 16:47
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.
HR Update 276 - Facing Up to Facebook
Last Modified on: 2009/04/29 15:08
Last Reviewed on: 2009/05/27 10:32
1. Facing Up to Facebook: the real issues for employers
Case Study: Virgin Atlantic
What can employers do?
Flirting over email: personal relationships at work
2. The Budget: Statutory Redundancy Pay
3. Right to request flexible working extended to parents with children under 16
1. Facing Up to Facebook: the real issues for employers
Rarely a week goes by without reading a newspaper article, which recounts a serious issue faced by a company upon discovery of inappropriate blogs on social networking sites such as Facebook or Myspace. Last year, British Transport Police cautioned a police officer over content on his Facebook entry,which allegedly included graphic details about his lifestyle and photographs showing him posing in his uniform at a London tube station.
In a recent survey, more than half of 1,200 employees admitted using networking sites and email for flirting, affairs and suggestive advances with work colleagues. And whilst some advances are welcomed, some are not. This poses potentially serious issues for employers.
Added to this, are reports that social networking is currently costing employers something in the region of £30.8 billion per annum in lost productivity. The impact of lost productivity is not sustainable in this difficult time in the market. So what can companies do to protect themselves from the risks these sites pose?
Case Study: Virgin Atlantic
Virgin recently made news on the issue of social networking sites. According to reports on the BBC website, 13 members of its cabin crew were involved in online discussions on Facebook that criticised the company’s standard of safety and passengers. The staff members posted comments referring to cockroaches on planes and that some of the passengers were “chavs”. Virgin acted quickly and released a statement that “safety is its top priority”.
Virgin were able to dismiss the 13 cabin crew staff involved in the fiasco, as it had a clear policy regarding use of social networking sites, specifically regarding bringing the company name into disrepute. A spokesman for the airline added that there was 'a time and a place for Facebook'.
'There is no justification for it to be used as a sounding board for staff of any company to criticise the very passengers who ultimately pay their salaries.
'We have numerous internal channels for our staff to feed back legitimate and appropriate issues relating to the company.'
What can employers do?
Some employers have placed a ban on social networking sites citing time-wasting, security, non work-related activity and loss of productivity as the main reasons for not allowing access to sites. This does not help with defamatory remarks made about the company outside of the workplace.
In the case of Virgin, policies play an important part in preventing issues such as time wasting, damaging the company’s reputation and potential harassment issues but also provide a method for dealing with issues when they arise.
It is permissible to monitor staff activity online, but the fact that monitoring takes place needs to be made known amongst the staff, the level of monitoring must be 'reasonable', and employers need to ensure they only hold appropriate information on file.
Employers need to be clear about their own activity - if they monitor staff activity online, what will they be monitoring, how, and what they will do with the data they gather? Policies need to state what, by way of examples, may constitute misconduct and gross misconduct.
The policy should include guidelines on:
• when employees can use the Internet for private purposes at work (for example, at any time, only at lunchtimes, after work)
• what sort of Internet activity is permitted or banned (for example, short emails may be acceptable, but lengthy sessions spent blogging or socialising on websites are not)
• that the employer may block employee access to unauthorised sites
• that the employer may introduce a proportionate level of monitoring of employee internet use to protect legitimate business interests
• the likely sanctions for breaches of the policy; employees should understand the consequences of unauthorised disclosure into the public domain.
Flirting over email: personal relationships at work
A further concern, not limited to social networking sites, is the use of company IT equipment for suggestive advances, welcomed or otherwise, in the workplace. Whilst personal relationships pose one set of concerns for an employer, unwelcome harassment poses a whole other, more serious, set. As workers are spending an increasing number of hours at work and at work-related events, it is inevitable that some relationships will form. However, it is important for an employer to ensure those relationships do not impinge on an employee's work both during the relationship and if that relationship ends.
If the relationship starts to affect that employee's work then that may be dealt with under the usual performance management routes. Employers may wish to consider implementing a policy that deals with relationships, including with clients, at work. However, implementing and enforcing such a policy can be difficult, for example, with the argument of a “right to privacy”.
Before an employer considers taking any action to limit relationships, they will need to consider whether there has been any precedent. Not only will this ensure fair treatment of this employee but also help guard against a discrimination claim if a member of the opposite gender has entered into a similar relationship in the past without any action being taken. It is also advisable to review harassment policies to ensure employees understand the level of appropriate behaviour and what they should do if they have a complaint.
As with all policies, in particular the IT acceptable usage, it is important that the policies are communicated to, and understood by, all staff.
2. The Budget: Statutory Redundancy Pay
In the Budget on 22nd April, the Government announced a one-off increase in statutory redundancy pay, from £350 per week to £380 per week.
This will take effect from 1st October 2009.
3. Right to request flexible working extended to parents with children under 16
As of April 6th 2009, the right to request flexible working has been extended to parents of children aged 16 (previously aged 6).
HR Update - ACAS Code of Practice
Last Modified on: 2009/03/18 11:53
Last Reviewed on: 2009/04/29 15:12
Welcome to March’s HR Update
1. New ACAS Code of Practice
2. Sabbaticals; a way to reduce the need for redundancies?
3. Reminder: annual holiday increase
1. New ACAS Code of Practice
From April 6th, the current statutory dispute resolution procedures will be replaced by the ACAS Code of Practice. This is a welcome development for many employers who have fallen foul of the headache involved in following the rigid, prescriptive statutory dispute procedures. Although implemented with the best of intentions, to give guidance and reduce the number of tribunal claims, they caused the reverse and tribunal cases have risen significantly. The new Code of Practice 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.
Under the new ACAS Code of Practice, tribunals will be able to use their discretion to a much greater extent than currently, and a dismissal will no longer be automatically unfair due to a lapse in procedure. A failure to follow the Code will not in itself make an employer or employee liable, but an employment tribunal will take the contents of the Code into account in unfair dismissal cases when deciding whether a party acted reasonably.
A further welcome difference is compensation for failing to follow the rules will apply to employees as well as employers. Under the dispute resolution procedures, any procedural failure on an employer’s part entitled the employee to an uplift of up to 50% on any tribunal ward. Under the ACAS code if either party ‘unreasonably fails to follow the Code’ the tribunal will have the authority to adjust any compensation, up or down, by up to 25%.
We have listed below key aspects of the code;
• employers should act consistently and raise and deal with issues promptly, without undue delay
• employers should carry out any necessary investigations to establish the facts of the case and in misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.
• employers should inform the employee in writing of the basis of the problem and give them the opportunity to put their case before any decision is taken
• the employee should be informed of the possible consequences to enable them to prepare for the disciplinary meeting, and copies of any written evidence which are relied upon (including witness statements) should also be provided.
• the employee should be informed in writing of the employer's decision after any disciplinary meeting.
• employers should allow an employee to appeal against any formal action, to be heard by an impartial manager who has not previously been involved with the case
• where an employee raises a grievance during a disciplinary process the disciplinary process maybe temporarily suspended however, where they are related, it may be appropriate to deal with both issues concurrently.
Redundancies and dismissals at the end of a fixed term contract are excluded from the Code and the Statutory Dismissal Procedure should continue to be applied in these circumstances.
Grievances
Under the current procedures it can be unclear when an employee is raising a grievance. After 6th April 2009 when an employee has a grievance they will have to say so, which is another welcome change. However, it will no longer be a requirement for employees to bring a grievance before bringing a tribunal claim against their employer.
Under the Code, employees who raise a grievance should be invited to a meeting to discuss their complaint and how they think it should be resolved, without unreasonable delay. Following the grievance meeting, the employer should write to the employee setting out what action it intends to take to resolve the grievance. The employee should also be offered an appeal against this decision. Any appeal should be heard by an impartial manager who has not previously been involved with the case.
What should you do now?
• review your disciplinary and grievance procedures to ensure they're compatible with the Code of Practice
• identify where a more relaxed and informal approach to dealing with problems at work may be appropriate
• consider including a mediation stage in your internal process (this could be an internal mediator within the organisation)
Beware! Just bear in mind for the next month or two, that the three-stage statutory procedure must still be followed in disciplinary or grievances cases started before 6 April 2009.
Click here to download the Acas Code of Practice.
2. Sabbaticals; a way to reduce the need for redundancies?
A sabbatical, or “career break”, is a system whereby companies allow their employees to take an extended period of leave above their usual holiday allowance - with the guarantee that their job will be held open for them when they return. It generally has a defined purpose and lasts between 4 weeks and a year.
Some companies offer sabbaticals (generally unpaid) and in order to qualify for a sabbatical employees generally need to have been working for a company for a specified number of years. It can be a great way of re-charging batteries, expanding the employee’s skill set and making sure the employee comes back to their role fresh and rejuvenated. Benefits to the employer of agreeing include good PR, good employee relations and if employees requests for a sabbatical are refused, the chances are they will leave anyway, and end up going to work for a competitor after taking the break, taking all their training with them. But further, in this difficult financial climate, it can make good financial sense, as employers can make significant savings on salary, tax and NI payments, potentially reducing the need to cut labour costs by way of reducing hours or making redundancies.
If you’re considering implementing a sabbatical policy, we suggest that you include the following:
• How long an employee must have worked at your company to qualify for a sabbatical
• The maximum length of the sabbatical
• Whether or not you guarantee the employee's job, or just a similar job at the same level
• What happens to the employees' other benefits, eg pension, healthcare (note: where the contract of employment remains in force, you’ll need to get their agreement to waive their entitlement to any contractual benefits during their sabbatical)
• Whether or not employees have to commit to a certain period of service on their return
• Whether or not the sabbatical is paid
• How much flexibility you are willing to offer in terms of length of time and when it’s taken
3. Reminder: annual holiday increase
Remember, the minimum statutory holiday entitlement, including public holidays, increases from 24 days to 28 days.
HR Update 274 - Employment Law Update
Last Modified on: 2009/02/11 17:00
Last Reviewed on: 2009/03/18 11:58
Welcome to this month’s HR Update
Increase in Tribunal limits
Increase in Statutory maternity, paternity and adoption pay
Payment of bonus during maternity leave
ECJ Ruling: Holiday pay for employees on sick leave
Increase in Tribunal award limits with effect from 1st February 2009
The following award limits apply:
a) Unfair dismissal maximum compensatory award has increased to £66,200
b) Unfair dismissal maximum basic award has increased to £10,500
c) Maximum amount of 'a week's pay' (for calculating statutory redundancy pay, or the basic award for unfair dismissal) has increased to £350 per week
d) Limit on amount of guarantee payment payable to an employee in respect of any day has increased to £21.50.
The above figures for a) and b) applies to dismissals made after 1st February 2009.
Increases in statutory maternity, paternity and adoption pay with effect from 5th April 2009
The rate of statutory maternity pay, statutory paternity pay and statutory adoption pay increases from £117.18 to £123.06.
Payment of bonus during maternity leave
It’s that time of year when clients call us to ask what obligations they have towards women on maternity leave and any bonus they may be eligible to receive.
Whether or not a bonus is payable to an employee on maternity leave depends on the type of bonus and the terms of the particular bonus scheme, regardless of whether they are contractual or discretionary. Bonuses generally fall into two categories; and below describes the bonus in general terms and obligations to pay it to those on maternity leave:
a) The first type of bonus is the “thank you” gesture, usually based on company performance, generally paid around Christmas time or after a period of change, and paid to all staff regardless of individual effort. These types of bonuses are used to encourage loyalty. This type of bonus should be paid to the woman on maternity leave, in full.
b) The second type of bonus relates to the performance of the individual. Bonus should be paid for any period of time before the woman started maternity leave, even if she is on maternity leave when the payment is due. In addition, the bonus is payable for the period when she is on compulsory maternity leave (the first two weeks), and any time where she is suspended on the grounds of pregnancy or maternity. This means the performance of the woman on maternity leave should be judged as if she had been at work, and the payment pro-rated accordingly. For the remainder of her maternity leave, both ordinary and additional, as long as the basis of the bonus is personal performance, the bonus is not payable.
ECJ Ruling: Holiday pay for employees on sick leave
Last month saw the European Court of Justice hand down the long awaited judgement regarding accrual of holiday while on sick leave. The decision, which won’t be welcomed by business, is that workers do accrue four weeks’ holiday per annum whilst on sick leave; they must be allowed to take the holiday on their return or must be paid it lieu if their employment terminates. The decision went further; the right to paid annual leave is not extinguished at the end of a leave year if the worker was on sick leave for the whole of that year, or if s/he was absent on sick leave for part of the year and was still on sick-leave when his/her employment terminates. This judgement is not quite the end of the case as the House of Lords will address the issue of how this decision fits with the Working Time Regulations, the premise of which is use it (holiday entitlement) or lose it (at the end of the holiday year).
HR Update - Tribunal limits and bonuses
Last Modified on: 2009/01/16 12:08
Last Reviewed on: 2009/02/11 17:03
Welcome to January's HR Update
1. Increase in Tribunal limits
2. Payment of bonus during maternity leave
1. Increase in Tribunal award limits
With effect from 1st February 2009, the following award limits will apply:
a) Unfair dismissal maximum compensation increases from £63,000 to £66,200
b) Maximum amount of 'a week's pay' (for calculating statutory redundancy pay, or the basic award for unfair dismissal) increases from £330 to £350 per week
c) Limit on amount of guarantee payment payable to an employee in respect of any day increases from £20.40 to £21.50.
The above figures for a) and b) applies to dismissals made after 1st February 2009.
2. Payment of bonus during maternity leave
It's that time of year when clients call us to ask what obligations they have towards women on maternity leave and any bonus they may be eligible to receive.
Whether or not a bonus is payable to an employee on maternity leave depends on the type of bonus and the terms of the particular bonus scheme, regardless of whether they are contractual or discretionary. Bonuses generally fall into two categories; and below describes the bonus in general terms and obligations to pay it to those on maternity leave:
1) The first type of bonus is the 'thank you' gesture, usually based on company performance, generally paid around Christmas time or after a period of change, and paid to all staff regardless of individual effort. These types of bonuses are used to encourage loyalty. This type of bonus should be paid to the woman on maternity leave in full.
2) The second type of bonus relates to the performance of the individual. Bonus should be paid for any period of time before the woman started maternity leave, even if she is on maternity leave when the payment is due. In addition, the bonus is payable for the period when she is on compulsory maternity leave (the first two weeks), and any time where she is suspended on the grounds of pregnancy or maternity. This means the performance of the woman on maternity leave should be judged as if she had been at work, and the payment pro-rated accordingly. For the remainder of her maternity leave, both ordinary and additional, as long as the basis of the bonus is personal performance, the bonus is not payable.
If you have a bonus/maternity issue that you'd like some advice on, why not call us on 0208 663 4595 and speak to one of our consultants.
HR Update - Employment Law Round-Up
Last Modified on: 2008/12/22 16:52
Last Reviewed on: 2008/12/22 16:58
2008 has been an interesting year dealing with cutting labour costs in an increasingly competitive market. With redundancies high on the agenda for early 2009, so as a break from the doom and gloom of recent updates focusing on redundancies, we thought now would be a good time to give you a “run-down” of interesting Tribunal judgements and legislative changes from this year and what we can expect from 2009:
2008
Discrimination legislation protects all: Do you remember the case of the female bouncer who won her case against a gay nightclub after claiming that she was bullied for being straight? Sharon Legg used the Employment Equality (Sexual Orientation) Regulations Act 2003 to win her case, and £3,000 for injury to feelings due to harassment and £3,222 for unfair dismissal from a nightclub in Bournemouth. This served as a reminder that discrimination legislation exists to protect all, the majority as well as the minority and to always follow the proper procedures.
Position on agency workers: This was the case where worker James worked for three years for the London Borough of Greenwich, which employed her through one agency then a second agency. She fell ill in 2004 and was absent from work. When she returned she found that her role had been filled by another worker from her agency. James took a case for unfair dismissal to an employment tribunal. The Council argued that James was not an employee so was not entitled to the rights of an employee. An employment tribunal (and Court of Appeal) said she was not an employee of the Council and dismissed her claim. Both agreed that there was no contract of employment between James and the local authority, and that the mere passage of time was not enough to create one.
Corporate Manslaughter Act 2007: In April 2008, legislation came into effect that meant companies or organisations whose gross negligence causes the death of an individual, whether he or she is an employee, contractor or customer, can now face prosecution for manslaughter.
Limited investigation may be acceptable: A factory employee had made a racist comment and complaints were subsequently made. The employee fully admitted to making the remarks and eventually he was dismissed. An employment tribunal found his dismissal unfair due to inadequate investigations and dismissal was outside the range of reasonable responses. The EAT concluded that while investigations should be thorough, the overriding principle is that they should be proportionate to the circumstances of the case.
Working under protest: Robinson was employed as a territorial manager for manufacturer Tescom which restructured and expanded his territory to the whole of the south of England. Robinson raised a grievance about the changes stating he wished to remain in his existing position. At the conclusion of the grievance Robinson said that he would take on the extended sales territory, but would review the situation over the next 12 months. Three months later, he said that he would work under the new job description, but under protest, and that he was treating the change as a breach of contract. He subsequently refused to work to the new terms and Tescom dismissed him summarily for failure to follow a reasonable management instruction. Robinson brought claims for unfair dismissal and breach of contract. Both the employment tribunal and EAT dismissed his claims. As Robinson had agreed to work under the terms of the varied job description, his subsequent refusal to do so was 'gross insubordination'. There was no unfair dismissal when Tescom terminated the employment in response to Robinson's refusal to work under the new terms.
Benefits during maternity leave: October saw the law change on benefit entitlement for those on maternity/adoption leave. Under the new rules, employees whose expected childbirth week was on or after 5th October 2008, are entitled to their full benefit package throughout both OML and AML, with the exception of pension rights.
And looking to 2009:
1st February - New tribunal award limits. Full details of the increases will be included in the January update. The increases apply to various payments, including statutory redundancy payments.
1st April - Minimum statutory holiday entitlement, including public holidays, increases from 24 days to 28 days
5th April - Statutory maternity, paternity and adoption pay increases to £117.18 to £123.06
6th April - Statutory sick pay increases from £75.40 to £79.15.
6th April - Repeal of the dispute resolution procedures. This returns the law to the position prior to the dispute resolution procedures coming into force, meaning that procedural failings will normally render a dismissal unfair, but any compensation awarded by Tribunals can be reduced in proportion to the likelihood that the dismissal would have occurred if a fair procedure been followed
April 2009 - Right to request flexible working is extended to parents of children up to the age of 16
HR Update - Managing Redundancies Sensitively Top 5 Tips
Last Modified on: 2008/11/10 16:13
Last Reviewed on: 2008/11/10 16:15
Welcome to November’s HR Update – Handling Redundancies Sensitively – Top 5 Tips
It is an unfortunate indication of the current economic climate that around 90% of calls to our HR Adviceline in the last 2 months have related to advice on how to make redundancies. In previous updates we have covered how to manage the process from a legal perspective, but what about the human side. Telling the main breadwinner of a household that they are out of job is not easy. And then how do you manage the survivors – their fears and motivation? After all, these are the people your business relies on to ensure it survives in the tough environment. This update takes a look at delivering the news sensitively and tips on how to minimise the impact on motivation after job losses have taken place.
Tip 1: Breaking the news
The redundancy announcement invariably causes emotional turmoil not just for the individuals personally affected, but also for the staff left behind. Therefore it is essential that line managers are as prepared, and empowered, as possible to deliver the news and answer questions. The first step of any redundancy situation is the announcement. Telling someone that you’re making them redundant rates very highly as one of the most difficult things for a manager to do. It’s hard enough under normal circumstances but supposing an employee has a history of depression or financial problems, breaking the news will be even more traumatic.
Ensure that managers are given all the information they require when breaking the news. A script can be a really valuable tool. Brief managers on what they need to say, what they shouldn’t say and prepare them with information on redundancy payments and notice period payments. It’s a good idea to have a run through with a member of the HR team before the 1st meeting, and to have someone from HR present at the meeting to support them and to help manage the potentially wide ranging reactions from staff. Remember, it’s a lot to take in for the person hearing the news. Don’t expect to always have an immediate reaction from the staff member so give them the opportunity of coming back to ask any questions in the days following, allowing the news to sink in.
Step 2: The after-math; practicalities
Will you expect staff to work as usual after they have been told that they are at risk of being made redundant? Or do you send them home? How do you manage to maintain day to day productivity with a workforce that may not have a job with you next month? Will you allow people time off to job hunt during their consultation period or will you involve them in team dynamics as usual?
It’s a good idea to pre-empt these types of questions by thinking about the operational practicalities and what is required to maintain service levels. Think carefully about including them in team meetings, which may be a source of embarrassment for some of those leaving and staying, and think about how much time you’ll allow those at risk to job hunt on the internet whilst at work.
Step 3: Communicate, communicate and communicate some more
It’s difficult to overstate how important it is to communicate with staff. Even one week during which you are deciding what to do may feel excessive to staff and as a result, may create stress and uncertainty because of the fear of the unknown. Ensure you keep your timescales for decisions to an absolute minimum and ensure you adhere to them. Go overboard with communicating to ensure they are kept in the loop, even when there is no news. This is important both for those going and those staying. It’s understandable to concentrate on those being made redundant, but those remaining will need reassurance regarding their own job security so ensure you communicate with them as well.
Step 4: Rebuilding confidence
For those leaving the business, it’s important for line managers to help their staff to build their confidence by encouraging them with positive feedback and career tips. It’s valuable for the managers to have information on relevant agencies, career centres, job sites and competitors looking to hire which they can pass on to those affected. Outplacement is a particularly helpful tool for the employee, to help with their job search for example interview skills and CV writing, and for the employer, as a show of good faith and support. But if there’s no budget for an outplacement agency, you could look into whether there is a non-profiting outplacement organisation in your area. If there is, you might be able to get free, or very low cost, support for employees.
Tip 5: Managing the survivors
Line manager must reassure the staff who are left behind of the prospects of further staff cuts, as redundancy affects them too. Give all the workforce a full explanation of the situation and the reasons for the downsizing. Some survivors might feel guilty about keeping their jobs whilst their colleagues who are leaving have serious concerns about meeting mortgage payments. Also, be mindful that some might actually want to be made redundant, and that telling them the news means telling someone they're not receiving a redundancy package and an opportunity to have time off.
It’s crucial to give an appraisal of future employment prospects to allay the fears among those who are “safe”. Whilst you can’t make any promises, provide a forward-looking, positive attitude for the future and recognise the survivors for the value of their role in that future by having individual meetings to discuss their objectives. It would be worthwhile considering encouraging staff to work more flexibly, which would cut salary costs and avoid further headcount cutting amongst those survivors.
HR Update - Takeover Tactics
Last Modified on: 2008/10/13 16:43
Last Reviewed on: 2008/10/13 16:46
Welcome to October’s HR Update
Takeovers Tactics: Implications of a business takeover on staff
In the current “credit crunch” climate, the news is full of stories about failing businesses being taken over. But what does this mean for the staff of both the acquired and purchasing company? Understanding your obligations when acquiring staff is essential in ensuring a smooth transition and minimising any exposure to litigation, poor morale and low productivity.
It is understandable for so much time to be spent in ensuring legal compliance, that some managers forget the impact that the process has on the business and the people affected, both from the acquired company and within the purchasing business. So, whilst it is critical to comply with the appropriate legislation, it is also very important not to lose sight of the fact that during the transfer process, business and productivity levels, and the morale of the affected employees, need to be maintained.
In this update, we are focusing on tips on how to manage the process and what potential issues to look out for when purchasing a business.
Firstly the legal stance….
The legislation governing employment in takeover situations (as well as mergers and outsourcing) is the Transfer of Undertakings (Protection of Employment) Regulations commonly referred to as TUPE. The purpose of the Regulations is to protect the employment rights of individuals when businesses change hands.
When a TUPE situation arises, the transferee (new or purchasing employer) effectively takes over the employment contracts of the staff employed by the transferor (old or acquired employer). Employees retain their length of service, benefits (excluding full occupational pension rights) and their terms and conditions including their old employer's policies and procedures. Discretionary benefits may not transfer e.g. share options, loan schemes such as season ticket loans and some bonus schemes where they are not deemed to be part of an employee’s terms and conditions of employment.
Neither the transferor nor the transferee can fairly dismiss any employees, or change any terms and conditions, because of the transfer unless it can demonstrate an economic, technical or organisation reason.
Tips on managing the process
1. Communication. Meet and greet the employees transferring before the transfer takes place. This will help to ease the worry of the unknown (for both sides), and will help to quash rumours from the outset which will save a lot of wasted work time on speculation. It also provides an opportunity for the transferring employees to raise any concerns they may have. Don’t forget your existing workforce: remember to communicate with them as well. It is sensible to set up a 2-way communication system within the first few months of the transfer taking place. Employee representatives can be a valuable resource for raising, and responding after consulting with management, to the collective concerns of the workforce.
2. Information. Request all the information you require from the transferor as soon as the transfer is confirmed, and then thoroughly review all the information. Essential information includes personal details, length of service, terms and conditions, policies and procedures. There is no legal obligation to provide this information until 14 days prior to the transfer, but understanding your new workforce and their terms and conditions is vital in planning the transition, so it is sensible to build a good relationship with the contact at the transferor company and chase any outstanding information as early in the process as possible.
3. Induction. Don’t assume the newly acquired staff will necessarily know all about your business, its background and clients. It’s important to induct them into the business, for which you can use your current induction process, and to make them feel welcome and valued from day one.
4. Redundancy: It is often the case where a company purchases a business that there is a duplication of roles which can lead to a redundancy situation. As long as the company can demonstrate an economic, technical or organisation reason for dismissing staff, and they follow a fair process, the dismissals can potentially be fair. It is essential to include the current staff of the purchasing company in the selection pool for redundancy. It is not acceptable to just choose the transferring employee because they are transferring. And, as always, it’s important to ensure that fair selection criteria are applied. This needs particularly careful consideration as the transferee will have a much better understanding of the skills, qualifications and aptitudes of the existing staff over the newly acquired staff. So be warned, if only those employees from the transferor company are selected for redundancy, this is very likely to be considered at Tribunal as unfair.
Acquiring staff can be a legal minefield and it is important to follow the rules regarding TUPE. However, it is also important to communicate effectively and integrate the workforces to ensure that productivity doesn’t grind to a halt during the transition.
HR Update - Changes in October
Last Modified on: 2008/09/17 16:35
Last Reviewed on: 2008/09/17 16:43
Full update
Welcome to September’s HR Update
Looking out for changes in October……..
Ensure your knowledge, policies and procedures are up to date with this month’s reminder of changes in legislation in October:
National Minimum Wage Regulations 1999 (Amendment) Regulations 2008 come into force
The Regulations increase the adult rate of the national minimum wage from £5.52 to £5.73 per hour. In addition, the development rate increases from £4.60 to £4.77 and rate for workers aged 16 and 17 increases from £3.40 to £3.53 per hour. This takes effect from 1st October 2008.
Amendments to law on terms and conditions of employment during maternity and adoption leave
A recent amendment to the Sex Discrimination Act (SDA) means that employers must now provide all non-cash benefits for the full duration of maternity leave, instead of only the first 26 weeks.
Currently, during the second 26 weeks of Maternity leave (Additional Maternity Leave), contractual rights to benefits such as pensions, car allowances and healthcare are suspended. Rights to the accrual of statutory holiday still apply.
Under the new rules, employees will be entitled to their full benefit package throughout both OML and AML with the exception of pension rights.
The employee will be entitled to her full contractual holiday entitlement for the holiday year even if she is on maternity leave for some or all of it. You can continue to apply normal rules regarding carrying forward any unused holiday at the end of the holiday year.
Pension rights should continue during the paid element of Maternity leave (the first 39 weeks).
Employees should continue to be covered by life assurance and private medical schemes and should continue to benefit from gym memberships and childcare vouchers during AML. Any discretionary annual/ Christmas bonus or loyalty bonus should also be paid during AML.
If car allowances are paid as a benefit (rather than amalgamated into their salary), this will continue to apply during AML. If some element of company car provision is permitted for personal use, employers must treat the car as a benefit and allow the employee to keep it throughout AML as well as OML. Employers can only take back a company car for the whole maternity leave period if it is provided purely for business use. This rule continues to apply.
The amendments apply to employees with an expected week of childbirth on or after 5 October 2008, and those with a child expected to be placed with them for adoption on or after this date.
Fixed Term (Agency) Workers on a contract of less than 3 months now entitled to Statutory Sick Pay.
Ministers have amended the Fixed Term Employees (Prevention of less favourable treatment) Regulations 2002 to allow Agency workers with contracts of less than 3 months the entitlement to Statutory Sick Pay, through the Agency. This will take effect from 27th October 2008.
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