Law Express

Unfair Dismissal

2012-04-16 13:18:39

Increasing the qualifying period for unfair dismissal

What does that mean?
It means that in order to be able to bring a claim for unfair dismissal or constructive unfair dismissal, an employee will usually have to have been with you continuously for 2 years.

Does the increase apply to all my employees?
No. Only employees who start on or after the 6 April 2012 will be subject to the new 2 year qualifying period.

So that means I can just sack new employees up to 2 years after they joined and they can't claim unfair dismissal?
No. There are lots exceptions where employees can bring a claim even if they have not been employed for the qualifying period.

For example, an employee could still claim if they believe they have been dismissed because of a protected characteristic (discrimination), or because they were a whistle blower, or because they were involved in certain trade union activities. These are just three examples, there are many more exceptions.

You also need to take into account an employee's notice, both statutory notice (which can count towards the qualifying period) and contractual notice, which may or may not count depending on how the dismissal is managed.

In addition, sometimes it is difficult to work out an employee's continuous service – for example, if they have been moved around between related companies or have had time off for a variety of reasons.

We hope this ezine has been useful.
If you have any questions you can call Law Express on 01275-378727.

The cost of being Social

2012-03-06 09:11:48

Discipline and Social Media

Social media can mean using the internet, sending emails, texts, and posting on blogs or websites such as Facebook, or using Twitter. We have been getting a steadily increasing number of calls about social media, from both employers and employees.

Do you have a social media policy and do your employees understand it?

A good policy is an employer's first line of defence. We consider what should go into such a policy in our podcast. Any policy should be clear about the standards of behaviour you expect from your employees, and the potential consequences if they behave inappropriately.

It is not enough to have an excellent policy; your people need to know about it and to understand the consequences of using social media inappropriately. If the employee is unaware of the potential consequences, it will be hard to justify any disciplinary action.

Who posted/emailed inappropriate comments/material?

Sometimes offending material is created by third parties, such as friends or relatives of employees. Employers do not have control over third parties and it is rarely appropriate to hold employees responsible for the actions of other people.

Where the offending material includes confidential information you may be able to discipline the employee for providing that information, or where there are issues of harassment or bullying, for encouraging that behaviour. It may also be possible to discipline your employee for bringing the company into disrepute.

However, third party situations are very difficult, and you should always take appropriate advice on your specific circumstances.

When and where did the inappropriate use occur?

If an employee behaved inappropriately in work time or using work resources it is easier to discipline them. In situations where the behaviour took place out of work time and/or using private equipment you will always need to think about whether it is appropriate for you, as an employer, to become involved.

In assessing whether it is appropriate to discipline, you need to take into account your social media policy, in what way the incident was connected to the workplace and the impact on the work place. For example, you may need to act to prevent harassment of other employees as you have a duty of care towards them.

Was it a private or a public communication?

Recent cases on social media have asked whether communications were intended for public or private use. Where something is intended for public use (for example, an open blog, public Facebook post or a email intended to be forwarded) then it is easier for employers to intervene, as the employee is considered to have given up their right to privacy.

Are you reacting reasonably?

It is very easy to overreact to comments on social media. However, it is important to keep things in perspective. Always ask yourself what the real impact of a comment is likely to be. A good rule of thumb is to treat "real world" and "cyber" behaviour in the same way. If you would not discipline for a throw away comment at a party, think carefully about whether you need to discipline for a throw away comment in an electronic forum.

Of course, there can be serious impact from comments made with social media - damage to reputation, breach of confidentiality, bullying, harassment and even discrimination claims. Employers need to tread a careful line between protecting their business and their employees, and accepting that employees have a right to privacy, and to their own opinions.

Acting proportionately and consistently is key to striking that balance. Having a comprehensive social media policy and applying it consistently will really help when you face social media issues. We talk more about developing a social media policy in our podcast.

January Blues

2012-01-12 12:34:24

We get a lot of calls about sickness absence, especially in January. So, to help with any January Blues out there we thought we would set out 5 top tips for managing this touchy issue.

1. Do not let lack of time or worries stop you monitoring and managing.

Sickness absence needs to be monitored and managed. Sometimes employers are very wary about managing employee sickness, or feel they just don't have time. Employers are concerned about disability discrimination claims or being accused of harassing sick employees. While these issues always need to be considered, it is important that fear of them does not prevent effective management of sickness absence.

2. Monitoring is vital.

It is important that you know who has been off sick, and for how long. This can alert you to any problems with employees or in the workplace and, if you identify any issues, you can then go on to address them appropriately. Employers should always keep accurate, written records of sickness absence.

If sick leave is monitored, it can be useful to look at any patterns of sick leave applying to a particular employee or to the workforce as a whole. For example, regular absences on Monday or Friday, or higher levels of absence after pay day might be an indicator that sick leave is being abused.

3. Policies and Procedures.

Employers should have clear and appropriate policies and procedures dealing with sick leave and sick pay. It is important that these policies are followed, because if they are not it can cause significant problems if you want to enforce them later. For example, if the employer does not enforce a policy that, unless there is a very good reason, the employee must phone in by a certain time if they are sick it becomes difficult to discipline that employee for not following that procedure.

Another common issue is lack of clarity when applying discretionary sick pay policies. For example, generous employers who have discretionary sick pay policies, but have always fully paid employees who are off sick can find it difficult to stop making those payments. If an employer makes such payments it is important it is clear that any payment is discretionary and may not continue.

4. Consider each case appropriately.

For example, short term and long term sickness absence needs to be treated differently. You may want to consider having different policies for regular short term and long term absences. You need to be careful to handle each case sensitively and appropriately and to think carefully about how you apply your sickness procedures. Sometimes a "one size fits all" approach is appropriate, but it is always safest to look at each employee's issues and consider their particular situation.

5. Try and understand the underlying cause of any absence.

Key to managing sickness absence is understanding the underlying cause of the absence. It is vital than an employer understands whether the employee has just been ill, or whether he or she has a disability (in which case different rules apply, including the requirement to make reasonable adjustments), a problem at home or work that is causing them to take excessive time off, or is abusing the ability to take sick leave. This means that you can then manage the situation appropriately. For example, if the underlying cause of the absence is a problem at home, it could be more appropriately dealt with as compassionate leave rather than sickness absence.

We consider some of the questions we're often asked about sickness absence (and say a brief word about the latest government review on the subject) in our podcast – you can listen here.

Whistle Blowing

2011-11-17 13:28:30

Blowing the whistle
- Protected Interest Disclosures

Most people are aware of whistle blowing - Neville Thurlbeck, the former News of the World chief reporter has been one of
the latest high profile employees to claim he was a whistleblower. Leaving aside the newspaper headlines, what is whistle blowing
and what might it mean for you and your business?

What is whistle blowing?
Whistle blowing is when a worker or employee makes a qualifying disclosure. A qualifying disclosure is a disclosure which raises concerns about how an employer is conducting their business. It can be written or verbal and needs to be made in good faith.

Concerns that are covered include criminal offences, health and safety issues, failures to comply with legal obligations, miscarriages of justice, damage to the environment and information tending to show that any of these things are being concealed.

A qualifying disclosure can cover not only things that have happened, but things that are likely to happen or are currently happening. For example; it could be that a crime has been committed, is likely to be committed or is being committed, or that evidence of a crime is being concealed.

Qualifying disclosures are usually to be made to the employer or an appropriate "prescribed person". A prescribed person can be a regulatory body like the Health and Safety Executive, or a professional body. There is a list of prescribed persons on the public concern at work website http://www.pcaw.co.uk/. Sometimes a disclosure to the media or police will be covered, but the legislation encourages whistleblowers to go to their employer first unless they have a good reason not to do so.

That all sounds very legal. What does it really mean?
It means that if an employee or worker goes to their employer, or to a prescribed person or an appropriate external person/organisation with a qualifying disclosure the law gives them protection.

If their employer treats them badly because they blew the whistle, the employee or worker could have a whistle blowing claim.

What sort of bad treatment are we talking about?
The law talks about "suffering a detriment". A detriment can be anything that disadvantages the whistleblower. Examples of detriment include; not being promoted (or being sidelined in any way – to a distant regional office or to a type of work), being denied unpaid leave or holiday, being excluded from meetings or company social events and of course, being dismissed.

What if the whistle blower is mistaken?
They still get protection. The key element is good faith– if the person believes there is an issue and raises it in good faith, they are usually protected. In some circumstances, such as where someone makes a disclosure outside their organisation (e.g. to the media), additional requirements apply, for example, the disclosure must not be made for personal gain.

How can we keep our company safe?
You should take any concerns raised very seriously. You should investigate them appropriately and take action if necessary, including reporting to appropriate professional and/or regulatory bodies. For example, an accountant discovering professional misconduct might need to report it to their employer, their professional body and, if it is criminal in nature, potentially to the police. In most situations, the worker/employee would tell the employer, who would then take any further steps necessary.

You could also consider having whistle blowing polices and procedures and providing information and/or training for your workers and employees so they know what to do if they have any concerns.

Whistle blowing is a huge and complex subject.
We covered the basics in our ezine and we're going to
use this podcast to explore a few areas in more depth.

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Answers on a Podcast

2011-10-17 12:25:11

Explode the myths - try our
employment law quiz.

When it comes to employment law, employers often make the same mistakes. Try our (tongue in cheek) quiz, then listen to our podcast where we give the answers and explode the myths.

What does probation period mean to you?
a) Supervision after someone's been released from prison
b) A Time where a new employee is more closely monitored
b) to ensure he or she is right for the job.
c) The try out period before someone becomes an employee.

You can just get rid of an employee until they have been employed by you for a year.
a) Yes. That's right.
b) No. That's wrong.
c) It's sort of right, but there are some exceptions.

What is a SILON?
a) A robot at war with humanity in Battlestar Galactica.
b) Like a PILON, but the employee only has the right to salary in lieu of notice,
b) not payment including any benefits.
c) No idea. I'll listen to the podcast.

Can you force an employee to work their notice period?
a) No. That's slavery.
b) Yes – they have to work their notice.
c) No, but you might be able to sue them for damages if they refuse.

Myth or Fact? Listen to the podcast for the answers.
See if you got the answers right on our Employment Law quiz.