Category Archives: HR Tips for Business and Charities

What it says on the tin – some useful guidance for smaller organisations on HR and employment law topics

Let’s Settle This!

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As with much of employment law, many of the small businesses I work with have heard of Settlement Agreements but aren’t quite sure exactly what they are. Recently I’ve had a couple of cases where clients have had concerns that discussing a settlement with an employee will be interpreted as a sign of “weakness”. This is the first part of a two part post (second part later this week), which looks at what they are and when and how they can be useful.

Firstly, you may be more familiar with their old name – Compromise Agreements – which was changed a couple of years ago as many people felt that “compromise” suggested that they had somehow “given in”. They are a legally binding agreement between an employer and an employee to end an employment contract, usually in a situation where there is some dispute between them.

The advantages for employers in this situation are:

  • No risk of a subsequent employment tribunal
  • Ends the relationship swiftly, allowing you to concentrate on running the business not dealing with an employee problem
  • Avoids any potential issues of bad publicity or reputation damage

There are disadvantages however

  • You may have to pay out more to the employee than you would contractually be obliged to
  • You may be expected to contribute to the employee’s legal fees
  • You may have to make certain commitments (e.g. provide a reference) that you might not otherwise want to
  • It is voluntary – you cannot force an employee to agree to one

To be legally binding, a Settlement Agreement must be in writing, contain certain clauses and most importantly the employee must have received independent advice from a qualified solicitor*, who must also countersign the agreement. Employers do not have to have employment law advice on the agreement (though many do) and there’s no requirement for their adviser to sign. A settlement agreement does not have to be a long winded legal document however – it’s perfectly possible to create a valid one on a side of A4.

But hang on, you may be thinking – “why don’t I just dismiss the individual? After all, didn’t you say in this post that it wasn’t as complicated and scary as many employers think?”

Clearly, you can just do this – but in many situations Settlement Agreements can be the better solution for both parties. And in part 2 of this blog post we’ll show you how to negotiate one.

*A qualified solicitor is one who has specific insurance which allows them to advise on employment matters. It is designed to protect the employee in the event of negligent legal advice. There are also certain others who are allowed to countersign settlement agreements such as CAB legal advisers, or some Trade Union officials

The Clarkson Affair – what small employers really need to know

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The suspension of TV presenter Jeremy Clarkson from Top Gear, after what’s been described as a “fracas” with his producer, has caused a huge amount of discussion, media comment and online debate. (If you’re one of my non-UK readers, or have been avoiding the news for the past week, here’s a summary of the story)

In adding to the already large amounts of discussion on this story, I’m aiming to provide a reminder for small organisations of the process for dealing with such a situation – while not all that common it happens more often than you may think.

Firstly, you need be clear to all staff about what behaviour is unacceptable. Most organisations would class fighting or physical assault as gross misconduct, which is likely to lead to dismissal without notice (people sometimes refer to this as “summary” or ” instant” dismissal – however as you have to undertake a proper process before dismissing, I avoid these terms as they imply that you make a knee-jerk decision). Many organisations would also class threatening verbal abuse as gross misconduct, especially if it has (as some versions of the story suggest) a racial element.

Even if you don’t classify it as gross misconduct, it’s unlikely to be acceptable behaviour and might well lead to disciplinary action – and if you have someone  already on a final warning (again, as Mr Clarkson apparently is), further disciplinary action is also likely to result in dismissal.

If you are considering gross misconduct, you should normally suspend the individual while you investigate matters. Someone’s job is at stake so it’s important that you talk to any witnesses or consider any supporting documentation. You may also want to talk to the individual themselves as part of the investigation although this isn’t always necessary. Make sure any meetings are documented. If your organisation is large enough, get someone to carry out the investigation who isn’t connected to the incident or who won’t be involved in the final decision.

At the end of the investigation, if there seem to be grounds for gross misconduct, call a disciplinary hearing and ensure the individual has access to all the allegations before the hearing. Remember, you must allow them to put forward their side of the story or any mitigating circumstances before you make the final decision.

And if you do dismiss, then the individual must be allowed an appeal, usually to someone not involved in the final decision – although in a very small organisation this isn’t always possible, but in this case you should allow the opportunity to request a review of the decision.

Without knowing all the ins and outs of the Clarkson case (we only have partial media reports), it does seem the BBC is doing things “correctly”, even if this upsets those who want to see Clarkson either back on TV or dismissed immediately. And it’s a reminder that no matter how valuable an individual employee is to the company, they aren’t above the normal standards of behaviour.

If your company needs help with handling a disciplinary case, why not get in touch?

(NB – some may point out that Clarkson is not a BBC employee but a freelance contractor. I understand that because of the large numbers of freelance contractors in the media industry, the BBC policy is to cover both employees and contractors. However, you don’t need to follow such a process with any freelance workers you use in your business, only those who are directly employed by you)

Updated 25/3/15

The decision has been made and it seems that not only have the BBC carried out a full and proper investigation of the issues, they’ve also carried out the process in a fortnight, which gives the lie to those who suggest that suspensions and investigations drag out things unnecessarily!

What’s wrong with this advert?

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There’s been a bit of a furore on social media this afternoon about this (apparently genuine) recruitment advert:

sec-5

HR professionals will know the answer to the question in the title. Recruitment agencies should, but clearly not all do. But if you’re the owner of a small business, without a great deal of knowledge of employment law, you would expect that retaining an “expert” to assist you with filling a role would ensure that you don’t

a) Contravene the Equality Act. It’s illegal to advertise for someone of a particular sex (with some very clear exceptions) or age, yet this advert visually implies that only young women can be secretaries. As the client, you would be held liable together with the agency if an individual decided to make a claim –  and remember that even someone who didn’t even apply could make a complaint to the EHRC, which might then decide to investigate your company.

b) Send out some very negative messages about your company. The implication that women can only occupy subservient positions to male bosses is hardly likely to attract many good quality candidates, and is the suggestion that errors may result in physical punishment really the impression you want to give of how your company works?

You wouldn’t plan when advertising a job that it would result in you breaking the law or damaging your company’s reputation, yet that’s exactly what has happened here. It doesn’t matter if you or your agency think you are being “witty” by make a reference to a cult movie if your potential candidates (or indeed your customers on a wider basis) find it tasteless and sexist.

Clearly in this case the client were very badly advised by the agency concerned, who themselves seem to lack a basic knowledge of employment law or what’s often referred to as employer branding.  I’m all for doing something original and interesting to set your job advert apart from your competitors, but this isn’t the way to do it. It’s a warning to small businesses to carry out the same checks on the professional advisers you engage as you would do with anyone else you’re entering into business with.

Straw and Rifkind show the problem of managing staff with “second jobs”

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There’s been much schadenfreude in the exposure of two former high ranking government ministers, Sir Malcolm Rifkind and Jack Straw, touting themselves for business and offering to sell their “influence” to a fictitious Chinese company. (In the interests of political neutrality one is from the Conservatives, one from Labour).  It’s provoked a debate about whether MPs should be banned from holding second jobs.

MPs aren’t employees. But the same issue of whether an employee can hold a second job is one I am often asked. So what is the situation?

Firstly, you can’t impose a blanket ban on individuals doing work when they aren’t working for you. Individuals have a right to spend their time outside work in whatever way they wish, which includes earning money. However, you do have a right to ensure that they are not doing anything which could damage your business –so you can legitimately prevent them from working for a competitor, or other organisation which might want access to your commercial information (a supplier or customer for example). As with all these things, should matters be challenged by the employee, you’d need to show that there was some clear impact on your business.

You can also prevent an employee from doing other work if it would stop them from working for you. So if someone wants to do an evening job starting at 6 but isn’t due to finish their shift with you till 7, then you can of course also prevent them from doing this.

The third key area is Health and Safety, particularly (and ironically given how much some employers seem to hate them) via the Working Time Regulations. These lay down the rules about the maximum 48 hour working week, rest breaks and time between shifts. If a member of staff works 35 hours a week for you (9 to 5 Mon-Fri say) and then wants to do 20 hours a week in a bar (say a four hour shift Wednesday/Thursday/Friday/Saturday/Sunday) you could try to prevent them from doing so on the grounds that they are working 55 hour weeks possibly without sufficient rest between shifts. Again, if you can show a clear safety risk (they operate machinery for example) it’s easier to do this.

With the advent of flexible working, zero hours contracts (where all parties have pledged to outlaw exclusivity clauses that prevent people from working for someone else), increased numbers of part-time roles and the growing number of “in-work poor” mean that for many employers, their staff may well have more than one job. Managing such situations may become increasingly common.

Sacking someone? It’s just like making Risotto

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Watching one of Nigella Lawson’s cookery programmes (yes I do, what of it?) I was struck by one of her comments that when it comes to cooking, “people confuse time-consuming with difficult”.

It seems to me that this is the same mistake that a lot of businesses apply to HR – and sadly it’s an illusion that many in HR like to perpetuate.

Take dismissing someone for example. “It’s hard to do” say some small business organisations and government ministers. “It should be made easier”

Actually, it isn’t hard to do. If you have an employee who can’t do the job, regularly breaks rules, is no longer able to work for you, undertakes tasks you no longer require, or with whom your working relationship has fundamentally broken down, then you can dismiss them. The time consuming but not difficult bit is that you have to follow a fair process before you make your decision. That means allowing the individual to put forward any mitigation at a hearing, letting them attend with a colleague or union rep and, if you do dismiss, allowing them an appeal.

Even the infamous TUPE regulations, which cause so many sleepless nights for employment lawyers and HR people, are – in 90% of cases – simply a tick box exercise: Have you consulted employees at the correct time? Have you supplied employee information at the correct time? Have you informed them of any changes that may be made post transfer? Are there any disputes about whether a particular person should transfer? Are there any benefits that can’t be replicated – and what are you doing about them?

Perhaps it’s the current expectation that everything will happen instantly (although businesses moaned about employment issues long before the advent of on-demand services). Or the assumption that what we don’t understand must be “complicated” (like rocket science, which is one of the simplest concepts there is).

Making a risotto involves stirring stock into rice for around half an hour. You could bung it all in a microwave for 5 minutes but if you did you’d end up with an inedible mess. Complying with employment rules is like making risotto – it’s not difficult but you need time to get the right result.