Employment and HR

As well as employees, ‘workers’ are also entitled to the statutory minimum leave entitlement. Do ensure that you regularly review employee and worker status in your organisation. Workers are legally entitled to 5.6 weeks paid holiday per year. You can include bank holidays as part of the statutory annual leave, they do not have to be given as paid leave. For someone working 5 days per week, this means you must give at least 28 days paid annual leave (the equivalent of 5.6 weeks). Of course some employers give more than the minimum. A part-time worker will get less paid holiday than a full-time worker. People who work irregular hours (e.g. term-time work, or work with shift patterns) also need to have their leave calculated carefully. Take advice if you need help with calculating this fairly. Common pitfalls in managing holiday legally can be managed by getting the drafting of your employment contracts and staff handbook correct, for what you need to achieve operationally. Those pitfalls include:

• Correctly calculating the accrual of holiday during sickness, maternity, paternity or adoption leave.
• Handling the carry over of any leave.
• System for booking time off (including notice periods).
• Our specialist team can assist you to get this right.

41% of workers in a survey recently said that they had been bullied in their workplace. Despite this, commonly employers will not believe that this sort of behaviour is happening in their workplace. You are likely to have anti-bullying policies and may feel this is enough, but do not assume that everyone complies. Doing nothing isn’t an option. Ignoring bullying and harassment does not make it go away, it may give a signal that it is part of the company ethos and you may find you acquire a reputation as a bad employer that affects your ability to recruit and retain key workers. As an employer you have a duty of care to look after the health and safety of employees, including from psychological dangers. You may be held liable for their conduct of your staff, even if you have a good policy and are otherwise blameless. Review whether your culture and processes encourages staff to speak to a manager, or to HR, if they have concerns. The mechanisms available may include your grievance procedure and a helpline of some kind, as well as training. From a risk point of view, be particularly alive to any allegations of bullying, harassment (or victimisation) that might relate to a ‘protected characteristic’ in discrimination law (such as race, sex, disability, age, sexual orientation, religion/belief). Significant claims can arise – so seek advice at an early stage to give yourself the best opportunity of a satisfactory resolution. Do also watch our video: https://tinyurl.com/yc4btwwn

Putting aside the obvious business benefits of social media, the growth of use of social media in all our lives can be described as “HR accidents waiting to happen”. Lines can easily be blurred – e.g. employees commenting on their work in their own time, using their own device. Our top tips:

• Get a good comprehensive social media policy in place – publicise it, train people on it, keep it up to date and enforce it.
• Include clear rules on accessing social media at work, and make staff aware of the monitoring you will do.
• Be clear on how an allegation of anything inappropriate being posted online will be handled, and define a framework of sanctions e.g. you might treat a breach as misconduct, and a serious breach as gross misconduct and potential dismissal.
• Include clear rules on managing your organisation’s confidentiality online – in particular trade secrets and other sensitive information.
• Be clear with employees that they must not make derogatory or discriminatory comments online about your organisation, colleagues, or your customers and the potential consequences of a breach of this management instruction.
• Take steps to prevent bullying and harassment online, just as you would in the ‘physical world’ – if you don’t take adequate steps you can be held liable for your employee’s actions online.

Do also watch our video clip: https://tinyurl.com/y97zakpm

There are very few HR policies that are a legal requirement. Here is a list of policies that are (or we strongly advise that all businesses should have):

• Disciplinary
• Grievance
• Health and Safety
• Whistleblowing
• Equal Opportunities
• Anti-Corruption and Bribery

Beyond that list, consider any other policy that helps in the communication of rules and procedures to staff, that helps meet the needs of your business, or is designed to protect the interests of your business. Any policy / handbook should always be clear, user-friendly and easy to understand. Our team can provide templates or bespoke policies informed by our legal and HR experience. When any employer is creating a new policy, or staff handbook, or reviewing the same, you need to be mindful which (if any) terms are contractual. You will generally want to make policies and procedures non-contractual because to remain as agile as possible as a business you need to be able to change them without seeking the agreement of the staff to which they apply (which would be the case if they were contractual). Those staff will remain bound by amended non-contractual policies because of their implied duty to obey lawful and reasonable orders.

Our team of qualified employment lawyers and CIPD professionals can work with your business to provide training sessions tailored to you. This can range from in-house employment law basics looking at disciplinary and grievance procedures, performance management and resolving conflict and issues in the employer/employee relationship to annual updates to keep your company updated on the legislation changes as they arise. Our training sessions are focused on the issues that face your business and work on a practical basis catering for all learning styles. The aim of the sessions is the development of your team to ensure that they are confident in carrying out their duties and this will ensure that issues are resolved at an early stage resulting in a happier and more productive team for you.

As general points, gather evidence, names of witnesses, or documents (while everything is fresh in your mind) that shows how your boss has been discriminating against you. Discrimination in employment is a complex area of the law, so we recommend taking advice at an early stage. The characteristics that are protected in our equality laws are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual Orientation

There are also various different types of discrimination to consider including: direct, indirect, harassment, and victimisation, that need careful consideration in making any claim. If you feel that your employer’s conduct is so serious as to leave you no choice but to resign, please refer to the specific FAQ on constructive dismissal. We recommend that you take advice from  our specialist employment team before doing so. The employer’s conduct must be sufficiently serious to justify your resignation, not something minor. It must go to “the root of the contract of employment” so it is quite a high threshold to reach. If you would like to exit your employment under a negotiated agreement, please refer to the specific FAQ on this. If you feel unhappy with the way you are being treated by your employer, and want to raise this so it can be resolved, please refer to the specific FAQ on this. Your employer may have a section of their Grievance policy (or a separate policy) that covers how you should raise any complaint about a ‘Dignity at Work’ issue, which you should follow. It’s important to realise you are not alone and that there is legal protection which can be sought.

To some degree, the answer to this is, “it depends”.  Anyone wanting to bring a claim in the Employment Tribunal must generally do so within three months of the date of dismissal/resignation or the act complained of (although there is some ability for that deadline to be extended in certain circumstances).  Before you can submit a claim to the Employment Tribunal, you must contact ACAS and enter into Early Conciliation via th website form, which can then extend the deadline for submitting a claim.  The standard Early Conciliation period, which can be used to see if your claim can be settled, lasts for one month and can be extended once by up to 14 days.   Once the Early Conciliation period has been completed, you can submit your claim.  The Employment Tribunal will serve it on your employer and unless an extension of time is agreed, they then have 28 days to respond.   Thereafter, the timeline for your claim is subject to any case management orders which may be given.  There are various stages to every claim including the exchanging of relevant documents, the preparation of a schedule of loss, the drafting of witness statements and, of course, the final hearing.  A timetable will be set between the parties and in agreement with the Tribunal (usually at a preliminary hearing, which will often be by telephone) for each of these stages and penalties can be imposed for a failure to comply with the timetable.  The listing of the final hearing will be subject to the workload of the Tribunal, the number and complexity of issues to be determined and the availability of witnesses but you could reasonably expect it to take six months to a year to get a hearing date.  Judgment may be reserved following the hearing and may not be sent for another month or so, though it must be sent within a reasonable time.   We have a wealth of experience within the team of advising employees on claims and representing them in the Employment Tribunal.  If you are contemplating bringing a claim against your employer, it is important that you get advice as early as possible in the process so you can prepare fully and be in the best possible position to be successful. We would be happy to explore the different funding options with you.

Whistleblowing is a term that often gets used without either employers or employees really understanding what is needed to qualify for protection. It is a complex legal area with potentially serious consequences. In employment law, Whistleblowing is when you inform your employer of a concern that fits one of the following categories:

1. A criminal offence
2. Miscarriage of justice
3. Breach of any legal obligation
4. Danger to the health and safety of an individual
5. Damage to the environment
6. The deliberate concealing of information about any of the above

To be protected under the relevant piece of law, as a ‘whistleblower’, you have to be an employee or worker (not self-employed or a volunteer). To qualify for protection, what you disclose must be facts that you have a reasonable belief are true - it must be more than just a rumour! You must also reasonably believe that the disclosure is in the public interest (i.e. it must affect more than just you). Do also watch our video clip on Whistleblowing: https://tinyurl.com/ybntr4tk

This is a legal document that, once signed, waives any claims or rights of action you may have to sue your employer and any other parties named in the agreement like Group Companies or the employer’s officers or employees. In return for this waiver, the employer usually pays you (the employee) a sum of money or gives you some other benefit – like an agreed reference, letting you keep items of company property, or releasing you from certain contractual restrictions.  The Agreement will often contain other terms to control the exit and protect the employer, like confidentiality clauses and specific warranties for you to sign. It should also specify a termination date, if it is envisaged that your employment is to come to an end. As a Settlement Agreement waives your legal rights, there is a statutory obligation that it is counter signed by a solicitor or legal executive acting purely on your behalf.  This is so that a solicitor / legal executive can explain exactly what you are agreeing to. You also then have the opportunity to take legal advice on whether what is being offered is appropriate and consider if you wish to negotiate any changes to the Agreement. If you are interested in entering into a Settlement Agreement (whether on the terms that have been proposed or on different terms) you should make an appointment as soon as possible with our specialist employment law team to talk this through. We are happy to meet face to face or by telephone, Skype or video conference if that suits you better.  It is best not to agree any deal until you have taken legal advice. Please do let us know If there is a date that the Agreement is to be signed by. It is helpful also for us to see a copy of your contract of employment, if you have one. You may be concerned about the costs of getting legal advice on the Settlement Agreement: your employer should pay a contribution to your legal costs to get the Agreement properly signed, given that this is a legal requirement for the document to be valid. Check the terms of the Agreement to see what contribution has been offered. If you already know you don’t want to sign the Agreement or you decide after taking advice that you don’t wish to, there is absolutely no obligation for you to do so. Our specialist employment law team can help advise you on your best course of action and whether you have any claim against your employer that you may want to pursue. Do be aware that if a Settlement Agreement is not signed, your employer will not pay a contribution to your legal fees and you would need to pay them yourself. Do discuss this with our team if you have any concerns in this regard. Chris Morse, a Legal Executive within the Employment Team talks  through some of the key issues and what you should be considering on an agreed exit or Settlement Agreement in the following video: https://www.youtube.com/watch?v=6aWyNvmbt-c&index=14&list=PLswGrmy74-BQ2Gb_8LpnZR78k4SkL6xby

It’s important to realise you are not alone and that there is legal protection which can be sought. The key steps to take are:

1. a)      Tell the person bullying or harassing you to stop;
2. b)      Tell your manager and record your concerns in writing;
3. c)      Take specialist legal advice to best protect your legal position and to find a solution before your health is impacted (or impacted further).

Bullying doesn’t (on its own) give you a legal remedy, but your employer has a general duty of care to look after your health and safety, including from psychological dangers. If you are being bullied, harassed or victimised related to a ‘protected characteristic’ (such as your race, sex, disability, age, sexual orientation, or religion/belief) then discrimination law gives you further protection. The same key steps above apply.