What happens if an employee is suspected of gross misconduct – when do you suspend?

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What happens if an employee is suspected of gross misconduct – do you automatically suspend them?

Does your suspension letters say: ‘Suspension is a neutral act’?

Here’s a secret. Suspension is NOT a neutral act. As we know there’s no smoke without fire. Anyone who comes into contact with that employee knows they’ve been suspended. That includes colleague, clients, customers and suppliers. They assume the employee must have done something seriously wrong and it can tarnish their reputation.

I am of the view that there are TWO, and only two, occasions when it is acceptable to suspend an employee. The threshold is low, but you’ve still got to reach it. This is where the employer reasonably believes that they need to keep the employee out of the workplace because:

1. there is a real risk the employee will interfere with the investigation; or,

2. there is a real risk the employee’s presence will damage the business interests.

This point has been looked at in the Tribunal. The most recent of which was in the Employment Appeal Tribunal last year. This case involved a school, which suspended a teacher when it was not justified. The EAT decided that their act of suspension was enough to allow the employee to resign and claim unfair constructive dismissal.

It was found that the school’s act of suspension was a breach of trust and confidence which entitled her to resign and claim unfair dismissal. It will be interesting to see how this develops with further case law as it will be reviewed again.

So make sure before you just suspend an employee think very carefully if what they have done justifies this action.

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Agency Workers

The agency workers Regulations 2010 (AWR), prevent employers from treating agency workers as a second tier worker. The AWR introduced a variety of protections for agency workers, which apply either from the start of the agency worker’s engagement or after 12 weeks.

The AWR are not triggered if the individual is genuinely self-employed or genuinely autonomous and, therefore, not working under the employer’s supervision and direction.

Day 1 rights
From the first day of being engaged by an employer, agency workers have the right to access all collective facilities and amenities in the same way as employees at the same place. Such facilities may include canteens, childcare facilities, car parking and transport services.

Agency workers also have the Day 1 right to be informed about job vacancies with the employer during their engagement.

Rights after 12 weeks
After 12 weeks of engagement, agency workers have the right to the same basic working and employment conditions as those employed directly. This includes key elements of pay. The right to the same working conditions also applies to duration of working time, night working, rest periods, rest breaks, annual leave and paid time-off for antenatal appointments.

Liability for any breach of these rights after 12 weeks is apportioned between the employer and the agency. However, the agency will have a defence if it acted on information received from the employer concerning the pay or the working conditions, even if that information is wrong.

If any Agency worker wishes to challenge the employer
The agency worker put in a written request for information to the employer. The employer has 28 days to respond in writing.

Investigations as part of the Disciplinary process

Investigations as part of a Disciplinary Process

The key test when you are considering dismissing an employee for misconduct, was established in the case of British Home Stores Ltd v Burchell (1978).
This may be an old case but we still rely on ‘the Burchell test today when we look at a conduct dismissal to see whether it is unfair under section 94 of the Employment Rights Act 1996.

The test sets out 3 key steps:

1. The employer believed the employee to be guilty of misconduct;
2. The employer had reasonable grounds for that belief: and
3. At the time the employer held that belief, the employer had carried out a reasonable investigation.

The investigation part of any disciplinary process is very important.

We have set out 10 tips for investigation as follows:

1. Follow your disciplinary procedure.
2. If you want a separate investigation and disciplinary appoint an investigation officer to carry out an investigation into the misconduct allegations.
3. Carry out the investigation without unreasonable delay.
4. Progress the investigation in a fair and reasonable manner. The nature of the investigations will depend on the seriousness of the matter.
5. Keep an open mind and look for evidence which supports the employee’s case as well as evidence against.
6. Collate all relevant facts that will be needed to take a disciplinary decision. This will include collecting documents, speaking to witnesses and taking notes.
7. Consider whether it is appropriate to hold an investigatory meeting with the employee. This is not always necessary but may be important where suspension is being considered or if there are complicated facts to investigate.
8. There is no requirement for the employee to be accompanied at an investigation meeting, although the ACAS Code does say this is good practice. You must allow a companion to attend a disciplinary meeting.
9. In most situations the employee should be given advance warning of an investigation meeting and time to prepare.
10. If you are having multiple meetings, don’t consider disciplinary action at an investigation meeting. Leave that to the disciplinary hearing.

Investigations and Disciplinary hearings should be taken one step at a time. We can assist guide an employer through this process.


When Disciplinaries and Grievances overlap

When Disciplinaries and Grievances Collide.

A significant challenge for employers to overcome when disciplinaries and grievances collide, is when an employee who’s in trouble tries to save their own skin. It’s easy to be cynical about it, that doesn’t make you a bad employer as it’s a very human response. However, your feelings of cynicism must be kept under your hat as you can’t assume anything.

There are three main things that you need to do: a) keep an open mind. b) you’ve got to deal with the grievance. c) keep up to date records of how seriously you are taking it and be prepared to justify your decisions.

There is no need to postpone the disciplinary process in order to deal with a grievance. In fact, in most cases, it makes sense to deal with them both together, especially if there’s a cross over. If you ignore the grievance, you could be in breach of the ACAS code and that may mean more compensation for an employee should action be taken by them at a later stage. There are 3 things that you could do:

1. Postpone the discussion. A large amount of employers see this as a safe option and it shows the employee you are giving them breathing space and a fair chance.

2. Carry on with the disciplinary. If the grievance is unrelated to the disciplinary, there’s no need to stop it.

3. Deal with them both together. If you are going to do this, make sure you give both the grievance and the disciplinary the time and attention it needs. Ensure that you still follow the correct procedures making sure that the employee knows exactly what is happening, and give them time to prepare before any meeting or hearing.

Perhaps most importantly, make sure that you document everything and retain all the evidence you collect in the investigation process. Don’t be tempted to rush the procedure through and be prepared to push dates back if you need to. Keep on top of things and make sure that the grievance doesn’t hold things up unnecessarily and isn’t being used as a delay tactic.

If you require our help with any form of disciplinary or grievance procedure, contact us. We’d be happy to help.

Social Media – Employers dealing with the Challenge

With such a growth in social media this has created challenges for some employers. Staff may need to use social media during the day as part of their job responsibilities as well as using private social media accounts.

Top things to consider:
1. Different employers will have different approaches to the use of social media. It would be worth having some guidelines set out in a Social Media Policy so that employees are aware of what is acceptable and not acceptable and the consequences of any breach.

2. Have you checked that your information is protected and secured?
Employees build up a list of contacts on LinkedIn and other social media sites. It can be difficult to work out who ‘owns’ these contacts so a clause in the Employment Contract making it clear is useful.

3. Monitoring
Make sure you are clear to employees that you will monitor their data from time to time. Having an Internet, Email and Computer policy setting out the guidelines is very helpful. You should have a separate employee consent form.

4. Data Protection
With the General Data Protection Regulations it is good practice to have a separate employee consent regarding the use and processing of personal data of employees. You could add this to the monitoring consent form.

5. Disciplinary Issues
There has been a growing body of case law in this area, where employees have acted in appropriately and affected the reputation of their employers by their use of social media including their private use. By having the right guidelines in place and explaining them to employees then it is easier to be able to deal with a problem if it occurs.

Social Media – the challenges in the workplace

Employers have huge opportunities with the growth in social media, which also poses challenges managing employees use.

Staff may be required to use social media as part of their work, such as marketing, and it is important to check any such usage is managed appropriately.

Should companies consider putting in a social media policy?
Different workplaces will have different views on whether to introduce a social media policy. A policy is useful to set out guidance and the possible consequences of acting in breach of the policy. It is also advisable to give your employees training on the appropriate use of social media so they cannot argue they did not understand it.

What about contacts your employees build up during work?
Employees build up a significant list of contacts and followers via social media accounts. The question often is who owns this?
Employers should think about what business information employees are gathering in social media accounts. It is useful to have a clause in your employment contract being clear of who owns these contacts and the use of social media.

It is acceptable for an employer to have a policy which allows for reasonable monitoring of internet and email use. It is wise to have this as a separate consent for employees to sign so they are clear about this.

It is expected if an employer is going to discipline someone for misuse of social media that they are clear about the guidance and the consequences of not following this. The recent case law in this area shows that employment tribunals are more likely to find a dismissal for misuse of social media to be fair in circumstances where the employer has been cleared and explained this to employees.

We can help draft a social media policy for your employees and assist with trainingData Protection2

GDPR for Human Resource Depts – 6 months to go

With GDPR (General Data Protection Regulations) coming into effect in May 2018, Human Resource Departments are gearing up for fundamental changes to Data Protection regulations.

Below are some of the key changes that GDPR brings in which are particularly relevant for HR teams:

1. The conditions for obtaining valid consents are becoming much stricter. Employers should be wary of relying on blanket consent wording in an employment contract.

2.Increased transparency obligations, with emphasis on ensuring data subjects (workers, employees, consultants) know more about their rights, such as stronger subject access rights and the ‘right to be forgotten’.

3. A greater emphasis on privacy requirements. It is useful to have a Privacy Policy.

4. A new principle of ‘accountability’ is also introduced, requiring businesses not only to comply with the GDPR principles, but also to be able to demonstrate how they comply.

5. An obligation to notify the appropriate regulator (the Information Commissioner’s Office (ICO), in the event of a data breach within 72 hours if feasible.

In our next blog we will look at the documentation to put in place in good time for the new GDPR.

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The General Data Protection Regulations (GDPR)

The GDPR is set to kick off on 25 May 2018.  It increases the obligations on all businesses to ensure the safety of personal information of individuals stored on their systems, whether they are customers, suppliers or employees.

The GDPR will apply to data ‘controllers’ (employers) and now data ‘processors’ (employees) Previously, the Data Protection Act only applied to controllers. Processors involve the storing, retrieving and erasing of data. Controlling involves manipulation in terms of interpretation or decision based data.

The GDPR applies to personal data, but the definition is wider than under the current Data Protection Act (DPA) The regulations place greater emphasis on the documentation that data controllers must keep, to demonstrate their accountability.

Many of the GDPR’s main principles are similar to those in the current Data Protection Act (DPA) So if your business is complying properly with the present law, then most of your current compliance will remain valid and can be the starting point to build from.

However, there are new elements and significant enhancements.  Your business will have to do some things for the first time, and a number of things differently.  It is essential to start planning your approach to GDPR compliance now, with the rules coming into effect in May 2018.

As a starter you will need to gain ‘buy in’ from key people in your organisation.

You may need, for example, to put new procedures in place to deal with the GDPR’s new transparency and individuals’ rights provisions. The cost of which depends on the complexity of your business.

One key new feature is having to show how you comply with the rules. Evidencing compliance is known as the ‘accountability’ principle.

Employers: we suggest as a start that you map out where you hold personal data and from there you can establish what consents and extra steps you need to put in to comply with these new Regulations.

Contact us: we can assist with GDPR compliance for a fixed fee.

Notice of Termination

Setting aside Unfair Dismissal concerns an employer needs to serve notice lawfully under a contract of employment to bring it to an end, apart from a dismissal for gross misconduct.

An employer must follow the notice periods in an employment contract and if this is less than the statutory minimum, set out in section 86 of the Employment Rights Act, then the statutory notice will apply. This is when an employee has been employed for more than two years, but less than 12 years, an employee is entitled to one week’s notice for each complete year of continuous employment.

But how should an employer give notice?

Tell them, though sometimes it is not always that straightforward. It is better to inform them in person or hand over the notice letter to them. In the case of Gisda Cyf v Barratt, the Supreme Court found that even though the employee was dismissed without notice, the effective date of termination did not take place until the employee had read the letter.

Even, if an employee is on holiday, as in the case of Newcastle upon Tyne NHS Foundation Trust v Haywood. The notice was not effective until she had returned from holiday and read the letter. Unless there is an express term in the contract which specifies when the notice takes effective an employer needs to be careful when sending the termination letter by post.

Pay in lieu of notice (PILON) clauses

This is a useful clause to bring a contract to an end, especially if you do not want an employee to work their notice. However, an employer needs to tell an employee that they are making a pay in lieu of notice in accordance with the contract of employment. In the case of Societe Generale, London Branch v Geys, the employment contract stated that the ‘[bank] reserves the right to terminate your employment at any time with immediate effect by making a payment in lieu of notice…’ . It was found that the employee would not be expected to check his bank account regularly in order to discover whether he is still employed. The contract and termination letter needed to be worded more clearly.

If an employer wants to terminate immediately and there is no PILON clause. there is a risk that the employee does not ‘accept’ the breach of contract. although this is an unusual situation it does happen that an employee would prefer to stay in work to look for another job during the notice period.

Notice pay

Notice pay is usually set out in the contract or should abide with the statutory notice period. However, there is a very strange quirk in the ERA, section 87(4) where the employer does not have to pay notice to an employee at the normal rate if they are absent for illness or family leave, where the notice to be given by the employer under the contract is at least one week more than the statutory notice.

Penalty Clauses in Employment Contracts

One area when an employment contract may be unenforceable is when there is a penalty clause which is found to be void.

Penalty clauses are rare. It is a clause where it imposes a detriment on the employee in the event of he / she breaches the contract which is out of proportion to any legitimate interest of the employer,

What type of employment clauses might be a penalty clause?

1. Repayment clauses – these may include for example the repayment of training costs, relocation allowances or enhanced maternity
pay if an employee does not stay in employment for a particular period of time. Courts normally find these clauses reasonable if they are not too excessive and the employee was clear about them.

2. ‘Liquidated damages’ – these are clauses in a service agreement, when payment is made to a director on breach of contract, change of ownership of the company or where a fixed term is not renewed. If the liquidated damages are excessive they might amount to a penalty clause.

3. Bonus clauses, if they withhold a bonus in certain circumstances

4. Clauses don’t always need to involve the payment of a sum of money to be a penalty, any benefit will do.

5. Indemnities in settlement agreements where the employee needs to repay compensation if they bring a Tribunal or breach perhaps a restrictive covenant. Such clauses sometimes are held to be unenforceable.

However, over the years the courts have been reluctant to strike down penalty clauses.

The employer and employee can assess, in advance, any likely loss that may occur if a contract is broken. If the amount is reasonable and a genuine pre-estimate of the loss, then it will be enforceable – this is known as ‘liquidated damages clause’. Much will depend on the facts and circumstances of the termination of employment, and the amounts repayable.

Contact us if you need any help with Employment Contracts