Not able to do the job?

Vega
Recently a client of mine came to me saying they had just received a solicitor’s letter claiming that someone they had hired and dismissed within two months was dismissed because he suffered from a disability. They wanted to reach a settlement. The truth was that he was dismissed because he had claimed at interview that he had a certain set of skills, and it had become abundantly clear that either he had lied at the interview or he had not appreciated what they were asking for (it was a technical job).
The problem was they hadn’t told him that. They just told him he wasn’t up to the job and told him to clear his desk. Unfortunately, there was no record of this conversation, and unknown to the management there had been a bout of office “banter” a couple of days before which the employee felt was having a go at people with his particular disability.
A perfect storm really and I have to say the cost of settling was much less than the cost and disruption that would have resulted if a claim had been made. So that’s what they did. So why when they had a perfectly good reason to let him go, did they not fight the case?
They didn’t know about the office “banter” and they also didn’t know about the individual’s disability (although it could have been argued that they should have realised). The point is from the ex-employee’s point of view he had not been told what he was doing wrong and just a couple of days before he was sacked he had been upset by some comments in the office which he felt referred to him. So, he had put two and two together and come to the conclusion that the dismissal and the comments were related. Actually, if you put yourself in his position it was not an unreasonable conclusion to come to.
The legal situation was also pretty worrying. If someone has less than two years’ service you are allowed to dismiss them for any reason you like provided it is not one of the “protected” reasons. For example making a health and safety complaint, asking for a payslip, having a protected characteristic under the Equalities act (sex, race, marital status, sexuality, religion, disability etc.), in short being dismissed in contravention of, or for asserting a statutory right.
The other legal point is that if someone makes a claim under Equalities legislation, it is for the employer to show that the employee had not been discriminated against. If they cannot then the tribunal is entitled to find in the employee’s favour. In this case our assessment, based on the facts, was that the employer would lose the case if it came to a hearing. Also the cost of settling was less than the cost of defending the case not to mention the disruption that would have been caused to a small company.
The message here is simple, in most cases even if someone joins you and quickly shows themselves unable to do the job you have employed them to do, they should always know what they are doing wrong and be given time to get it right before they are dismissed. You should also keep a record of them being told. It’s actually common sense really, but it can get lost in a busy workplace.
It also would have helped if they had called us before dismissing this employee!
By the way the picture is just a nice scene to help you feel good, it’s also where I wrote this blog so I can feel a little bit smug!

Not in the right place

What do you do when you are talking to a manager about how you can help them do their job better and they spend 80 minutes of a 90 minute meeting in tears?

Clearly the opportunity to help them do their job is limited as in between the snuffles and sobs they tell you that everything is OK and in fact it’s getting better. Really, so how do you behave when things are really bad?

Well some people are just in the wrong job and for whatever reason they will not accept this. At this point the Directors have to take a hard decision. Problem is that if you are in one of the public sector arenas you have been tied down by endless procedures and policies that just prolong the torture. Plus if you go down the procedural route it’s quite likely that the manager will get combative and you not only have a performance problem, you also have a growing antagonism between the directors and their manager, not good for the organisation or for the rest of the staff.

Whenever I post something like this on Social media I am usually met with the response that  you can avoid problems like this by always treating people with respect, agreeing an “action plan”, reviewing it on a weekly basis, giving the person achievable targets and getting their “buy in” to the solutions orientated process that has been set up. All very well as long as you’re happy to ignore the staff that have to fill in for the underperforming manager while you go through this process – who are becoming increasingly frustrated by your lack of care for their predicament.

Getting the manager’s cooperation in working towards an “action plan” can be a good way to deal with things when the manager takes up the position; but most of the time we are brought in long after things have gone wrong. If you want to make an analogy, it’s a good idea to teach people how to swim when they are in a training pool and supported, if you see them drowning you don’t spend time coaching them, you pull them out of the water.

So in short as a director or senior manager you have to think of all your staff when dealing with issues not just the one who is having a problem, which sometimes means making hard decisions.

When a poor performer goes off sick

A client of ours runs a care home. They were concerned about the performance of the home manager and had issued her with a warning to improve things. The manager then went off sick (genuinely). Whilst signed off sick she had a meeting with our clients and expressed a desire to return to work on a phased basis.

Due to the nature of her illness and the continuing health problems she and her support worker said she had, our client had concerns about her ability to do the work, and an overriding concern about the welfare of the residents. However, as she was still signed off as unfit to work it was a hypothetical discussion.

We advised our client to seek permission from the home manager to write to her GP and Consultant for medical reports relating to the prognosis for her and what, if any, assistance she might need as and when she was deemed fit to return. We also asked whether she would be considered disabled under the Equality Act 2010. Her Consultant failed to comply with the request and her GP replied based on an administrative role only so a follow up letter was sent to ask for clarification. No response was received.

When she had been off sick for a few months she raised a grievance about several issues but mainly saying that it was discriminatory not to allow her back to work and make adjustments for her disability. She also put in a Tribunal claim on a similar basis. That is a scary situation but we advised a calm, measured approach as we believed the employee was trying to scare our clients into paying her off.

Contact with her had become very difficult and she refused to attend any meetings to try to resolve matters. Having been given a date for a medical capability hearing she said she was returning and did supply a letter from her GP saying she could return but she was still covered by a sick note. Her sick note expired and no further note was submitted and she did not return. We advised and drafted a letter setting out what would happen if she remained absent with no sick note and also reminded her that there were potentially serious outstanding disciplinary issues to be addressed when she did return, which now included some questions about what had been put on social media about the care home.

As soon as she received that letter her legal representative contacted ACAS asking them to contact us to negotiate an exit package. We managed to broker a deal which cost our client half what the employee would have got had they dismissed her or had she resigned and also saved them the legal costs of either a Tribunal or a settlement agreement by asking ACAS to broker the agreement.

Sometimes it’s better to play the long game-it takes nerve and you need to be sure of your facts but we knew this was a case of who blinked first and gauged it right.

There were a number of lessons from this

  1. Don’t get side-tracked by issues that don’t exist, in this case the attempt by the employee to raise the issue of disability.
  2. Sometimes you only find out what’s going on when the manager concerned is off site, although the owners knew things were not as they should be, it was only when the manager was not at work that the staff started to feel able to talk about the problems the manager was causing.
  3. Don’t get scared by advocates or solicitors who threaten you. In this case the issue was simple. Was she fit for work or not.
  4. Keep notes of all meetings and stay in touch with the employee.
  5. Keep your eye on what you want to achieve. In this case it was pretty clear that both employer and employee wanted to go their separate ways. Our client felt that their employee was exaggerating her condition (which could have been for a number of reasons), the problem with this approach from the employee’s point of view is that there is no obligation on an employer to keep someone in a job that they are unfit to perform.

Whatever you do, don’t go to court

I’ve used this phrase more often than I care to remember, both to potential claimants and to employers. Unless you are a particular kind of person, an employment tribunal is not a pleasant place to while away the hours and days.

From the point of view of the employee, you never get what you really want, either in terms of money or justice. Also you end up focussing on an unpleasant part of your life when it would be much more fulfilling to look forward to the future. From the employers point of

View the cost of settling is usually no more expensive than the cost of fighting and winning a case, especially when you take into account the time spent on a case and the disruption to the company. I understand that sometimes an employer will want to make a stand so that people who have worked for you don’t make a claim just for the hell of it. But the number of times that happens is rare.

So what is the alternative? These days you can opt for a settlement agreement (formerly known as a compromise agreement) which is a well tried approach that both protects the employer from future legal action, and draws a line under the issue for the employee. However if you choose this route, be prepared to haggle (a very “un-British” thing to do) because most employees will get legal advice and will reject the first offer and ask for more.

So here are a few guidelines if you are an employer and you want to try for a settlement agreement:

1)      Start low, end low. Don’t offer a high settlement figure in the hope your employee will settle quickly. They will nearly always assume you have more money, and ask for more. A good rule of thumb is to calculate how much they would get if they were made redundant. You can check this on the ACAS website (www.gov.uk/calculate-your-redundancy-pay).

2)      Don’t make threats. If your employee has accepted that a settlement agreement is a good idea, they have already made the mental leap that they are leaving, they can still change their mind and antagonising them is a good way to achieve this!

3)      Put deadlines on offers, but be flexible. Often an employee’s advisor cannot comply with a deadline because they have other work commitments.

4)      If you do feel you are being “mucked about” be prepared to get the employee back to work when negotiations have stalled. The employee has already decided that they want to leave so coming back to work is the last thing they want to do.

5)      Don’t get hung up on side issues like the wording of references or confidentiality agreements, they rarely make a difference in the real world and can delay an agreement. And finally…

6)      Don’t get too emotionally involved, this is just business and you need to look to the future.

Obviously there will be occasions when these guidelines don’t apply or need to be “bent” a little, but the key to all of this is to make sure you have an advisor who is not only on your side but is also prepared to tell you the truth when you least want to hear it.

Financial penalties on losing respondents at tribunal

The introduction of the new Enterprise and Regulatory Reform Act 2013, which is due to come into force on 6th April, adds a new section into the Employment Tribunals Act 1996.

This gives Tribunals the authority to impose financial penalties on employers who are found to have breached an employees’ employment rights and where the Tribunal considers that the breach had one, or more, ‘aggravating features’.

There is no definition of what constitutes an ‘aggravating feature’ but explanatory notes provided with the Enterprise and Regulatory Reform Act 2013 suggest that where actions are deliberate, negligent or malicious, where the employer is a larger organisation with a dedicated HR team or where the same right had been repeatedly breached were all likely to be treated as ‘aggravating features’. Pursuing an unreasonable defence or otherwise conducting proceedings in an unreasonable manner may also result in a fine. The Tribunal has discretion to take into account the duration of the breach and also the behaviour of both parties.

A penalty will not automatically be imposed just because an employer loses a claim, as was originally suggested prior to consultation, but if a penalty is imposed it will be 50% of the award with a minimum penalty of £100 and a maximum of £5000 per claim, even if there are several claimants. The Tribunal can also decide to impose a fine in cases where the claimant wins but does not get any financial award.

The penalty is payable to the Secretary of State in addition to any compensation awarded to the claimant. If you settle the fine within 21 days you will only have to pay half of it.

Changes to Tribunal Rules – Early conciliation

New legislation comes into force on 6th April. The official title of it is ‘The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014’-quite a mouthful but in brief the aim is to resolve as many employment disputes as possible without the need for an Employment Tribunal.

Anyone considering making a claim against their employer will be required by law to contact ACAS before they can proceed to a Tribunal. It will be a quicker, cheaper and less stressful way of resolving a workplace dispute.

As you probably already know, an employee has 3 months after the event they are complaining about to lodge a claim. When they contact ACAS , the clock effectively stops ticking for up to a month, with provision for a further 2 weeks if ACAS think the claim will be settled soon,  to allow time for the 2 parties to reach agreement.

If ACAS don’t think a settlement is possible they will issue an Early Conciliation certificate. This act starts the clock running again and confirms that the potential claimant has been through the required process. To lodge a claim at Tribunal claimants will need the reference number from their certificate.

The Early Conciliation service is free to both parties and either the claimant and/or respondent can decline ACAS’s services at any point. The ACAS conciliators are impartial and have up to date knowledge of the law to help to clarify the issues as soon as possible.

This legislation changes the rules relating to Employment Tribunals to facilitate the introduction of Early Conciliation.

It is hoped that Early Conciliation will save time and legal costs estimated at £64.6m a year and deliver a net benefit of £37m. There will be a further saving of £2.6m due to the impact of having fewer Employment Tribunal claims.

Please call if you have any questions .

TUPE. The revised 2006 Regulations and the new 2014 Regulations which came into force on the 31st January 2014.

Sometimes we have no choice other than to get all formal and legal and this is one of those times. The law has changed and you need to know about it so that you will be able to decide whether it applies to you or not. If you think it does, then get some advice because it is a complex area which we are happy to help you with. There are massive text books on this subject alone so we can’t possibly cover it all in a short article but we have tried to outline what the law says, how it has changed and what to look out for so that you know what questions to ask.

Some of you will have heard about TUPE and had experience of it, but for those who haven’t it means ‘Transfer of Undertakings (Protection of Employment)’.

In broad terms the purpose of this legislation is to preserve the continuity and terms and conditions of employment for employees who transfer to a new employer when a ‘relevant transfer’ takes place.

This can happen when a business or undertaking, or part of one, is transferred from one employer to another as a going concern (often known as a ‘business transfer’) and can include situations where 2 companies cease to exist and combine to form a new 3rd company. The identity of the employer must change for this to be deemed a ‘relevant transfer’.

This law also covers situations where work is contracted out or where the contracted work is reassigned to another contractor or is brought back ‘in house’. This is called a ‘Service Provision Change’.

These 2 categories are not mutually exclusive. It often happens that a transfer is both a ‘business transfer’ and a ‘service provision change’, particularly when work is being outsourced.

For TUPE to apply the activities carried out before and after the transfer must be more or less the same and must be carried out by an ‘organised grouping of employees situated in Great Britain which has as its principle purpose the carrying out of the activities concerned on behalf of the client’. That grouping may be a small as 1 person employed by a contractor, as is often the case with cleaning small business premises.

Unfortunately there are a lot of grey areas in this legislation which means that some of the terms used in it do not have a clear definition and can only be decided by a Judge. The new law hasn’t really helped with that I’m afraid and in fact, not that much has changed in practice as most of what

is now included in the legislation was happening anyway because case law had padded out what was a very brief piece of legislation when it was first introduced.

So what has changed?

It has been clarified that where a Service Provision Change has taken place, the activities carried out before and after the change must be fundamentally the same. So, for example, if you tender for a contract that used to provide cleaning services to a block of offices, TUPE will only apply if you are contracted to provide cleaning services. You will then have to follow the procedures laid down to take on the staff and maintain their terms and conditions of employment.

It has always been the case that you could not make changes to employees’ contracts, or dismiss anyone who has TUPE’d in to you if your reasons are related to the transfer of undertaking. This has been clarified a little and now says that contracts cannot be changed if the changes are solely or principally because of the transfer. However, you can still make changes where the sole or principal reason for the change is an economical, technical or organisational reason entailing changes in the workforce. Let’s say you make a particular type of door and your main competition is in the same county and they offer to sell their business to you because it’s not their core product. You have up to date computer controlled equipment and they don’t so their process has required more staff to make fewer doors than yours does and you don’t need their staff and yours to double production. So you have to take on all their staff but you can then look at making some of the now joint workforce redundant for technical (more advanced production methods), economical (economies of scale) and organisational ( you don’t need as many people in some jobs, some jobs don’t need to be done and there are new roles too) reasons. What you can’t do is only select those who have transferred to you or that would be solely or principally because of the transfer and as such, unlawful. Remember you still need to follow a fair and legally compliant redundancy process. Changes which seek to align terms and conditions between existing staff and transferred staff would be unlawful as they are solely because of the transfer.

It may be that the transferred staff need to move to their new employers premises to continue working and so the law now says that a change to the location of the work is now covered by the phrase ‘entailing changes in the workforce’ and can be done without anyone saying it is solely because of the transfer. Of course, staff can choose not to transfer and if they do so they will be deemed to have resigned. However, if the change of location is major and makes it too difficult or expensive for an employee to transfer then they may claim constructive dismissal and if the tribunal deem that the changes constituted a ‘substantial change in working conditions’ and the employer is found to have acted unreasonably, they may win.

If more than a year has passed since the transfer and the employer needs to vary terms of the contracts of employment that were incorporated from collective agreements they can do so as long as the employees are no worse off overall.

There is a new provision that in some circumstances, rights to terms and conditions provided for in collective agreements which were entered into after the date of the transfer do not transfer. This is so that preferential changes to contracts which would have to be honoured by the new employer cannot be made to give the transferring staff an advantage that they would not have had but for the transfer. I have seen additional holiday added in, company sick pay provisions, pay rises etc. Such changes do not normally have to be matched by the new employer.

If you are what the legislation terms a ‘micro business’ with 10 or less employees you will not have to elect representatives to carry out your statutory duty to ‘inform and consult’ the staff who will be affected by the transfer but can do so directly by treating each employee as a representative for themselves. This duty to inform and consult involves making sure everyone knows what is happening ,and when, as soon as you know, along with any measures you expect the new employer to take including possible redundancies.

There is a legal requirement for the existing employer (the transferor) to provide the new employer (the transferee) with relevant information about the business and its staff. This is commonly known as NELI which stands for Notification of Employee Liability Information and includes all the details of the contracts of employment, employees details, any collective agreements, records of disciplinary action taken and grievances raised, details of any legal action taken by an employee in the 2 years prior to the transfer and any legal action that the transferor believes may subsequently arise. The deadline for providing this to the transferee used to be 14 days before the actual transfer but has now been increased to 28 days. This will give the transferee more time to check the data provided and have a better understanding of what they will be taking on should they proceed with the planned transaction. If the transferor fails to comply with this requirement and does not provide the information the transferee can take them to a Tribunal and may be awarded compensation of at least £500 per employee unless the Tribunal thinks this would be unjust if, for example, an honest mistake had been made rather than deliberately withholding information.

There has been an amendment made to the Trade Union and Labour Relations ( Consolidation) Act 1992 so that a transferee can start to consult on proposed collective redundancies (applicable where there are 20 or more staff) before the transfer takes place. The transferor must agree to this happening.

 OTHER THINGS TO BE AWARE OF.

If you are tendering for a contract with the public sector the rules are much the same but be aware that there is separate specific guidance for transfers of admin functions and what to do about pension provision. We can point you to the appropriate Government documents.

It is usual for the transferee to ask for the contract to contain an indemnity to protect them from any losses which would otherwise have been incurred by any wrongdoing by the transferor such as breaches of contract or employment law.

The transferee must make sure they know in advance what their liability relating to pension provision will be as if the transferred employees already have a pension scheme then the transferee will also have to provide one and may have to match some of the provisions including the previous employers’ contributions in some circumstances. This can be a substantial cost and can affect the profitability of a new contract so make sure you look into this well in advance. If the transferee has already had to comply with auto enrolment then the new employees will also have to be enrolled when they transfer.

If the transferor is insolvent there are separate arrangements to assist a new owner who tries to rescue the business which, depending on the circumstances, may mean that not all the debts transfer and some changes to terms and conditions may be allowed if this will keep the business afloat.

CONCLUSION

Well I did warn you! I could go on-and on and on and on but that’s probably enough to be going on with. If you have any questions just give us a call.

Just a Thought

Over the last few months I have found myself being asked about the “right” way to manage staff given the amount of employment regulations that are in place at the moment.

I generally give two possible scenarios, but these are at the extreme ends of the spectrum.

Company A prides itself on its employee engagement and bends over backwards to accommodate their staff. They have an HR department which is fully integrated with the management structure, they are cautious when taking decisions that could have a detrimental effect on their employees, not just because they want to avoid a claim to an Employment Tribunal, but also they genuinely believe it’s the right thing to do.

Company B is much more active in their decision making, if an employee isn’t coming up to standard they terminate the contract there and then without much ceremony. They also only have the minimum paperwork for their employees with no staff handbook  or policies and procedures to speak of or employee engagement initiatives. Communications are left to individual managers who report directly to the owner of the business.

Clearly there are many variables in between these two extremes, but I have worked with and for both types of company. In truth I cannot say which type of company I prefer.

The more “HR” based model certainly had a greater sense of  Job security, but I found the high level of consultation frustrating (people who know me won’t find that a surprise). However what I found most disturbing about this model was the tendency to find cliques forming, whilst the consultations took place.  These cliques had a habit of excluding those who did not fit in with their view of a situation, and this could go on for a long time.

In the second more “activist” example the “politics” was much  clearer, but you could find yourself out of a job with no idea  what you had done to deserve it, so no opportunity to address any   behaviour or performance issues.

So from an employees point of view it depends on your  personality which is preferable. However from a purely commercial point of view, is there a preferred  option?

The truth is there’s no hard evidence either way. The” HR” method involves far more management effort and (possibly) increases the likelihood of you winning at an employment tribunal. Also even if you win in court you still have the same legal costs as if you lose. AIso the very fact that you take so long over a decision may cause the employee more stress, thus Ieading to a greater likelihood that a claim will be made in the first place. The other model may mean you have more awards to pay out. But surprisingly the number of claims may be lower, because the shorter timescales mean that the employee’s levels  of resentment don’t have time to build up and they move on much more readily. I suppose the analogy is that of removing a sticking plaster. If you pull it off quickly it’s more painful for a short period of time. If you pull it off slowly it hurts less but the pain Iasts longer. It’s up to you which you prefer.

So I suppose in truth there is no right or wrong way to deal with these issues. However what I have found is that you deal with them in the way that suits your personality, you are less likely to take them by surprise!

 

What to do when a problem employee resigns

A lucky escape or a ticking time-bomb?

I came across a situation recently when an adviser told an employer not to accept a resignation as the employee was undergoing a disciplinary procedure and there was a risk of a constructive dismissal claim. The situation quickly degenerated into the employer demanding the employee come to the disciplinary hearing, and the employee refusing on the grounds that he had left and was no longer an employee. This impasse continued for 3 weeks until the employer and their adviser finally “caved in” and accepted the resignation.

I don’t know about you, but I have better things to do with my life!

In my opinion I would always be guided by the following principles

a)      Consider if they leave they ore outside your organisation and you can get on with running your business

b)      The likelihood of a claim to an employment tribunal is greatly increased by management dithering so act decisively

Let’s look at two possible scenarios:

1. The employee resigns saying they want to move on and makes no mention of any disagreement between you and them. If they are genuine, then accepting their resignation is the quickest and easiest way of bringing the issue to a conclusion. If however they are being deceitful and they are planning to make a claim for constructive dismissal once you have accepted their resignation, then the very mature of their resignation weakens their case. This always presumes there is not a massive trail of correspondence where they accuse you of everything from breaching their contract of employment to the collapse of English Test Cricket!

So even if the employee was off sick or subject to a disciplinary hearing, accepting the resignation is probably the most sensible thing to do. Indeed refusing to accept the resignation could turn a perfectly amicable end to a relationship into a row which nobody wins. It may also raise in the mind of the employee that you have something to hide and it might be worth making a claim, where previously they had not even thought to do so.

2. The employee resigns claiming you have acted unreasonably, leaving him or her with no option that to resign with immediate effect. Even in these circumstances it is not always wise to refuse  to accept the resignation as they are likely to make a claim anyway, so we might us will get on with it and not prolong the agony.

If someone has resigned from your business and you are worried about it, give us a call.

Don’t end up paying more when staff resign

A client of mine was just opening up her salon for the day when one of her employees came up to her and said she had been offered another job. My client was distracted by a customer who had come in early for a treatment, so when the employee offered to work her notice she just said don’t worry just finish off today if you want.

Two weeks later my client received a call from ACAS ( the government body that deals with employment disputes) saying that the ex-employee had been in touch asking them to mediate in a dispute, as she was about to make a claim for two weeks money from my client for non-payment of holidays and statutory notice.

The employee had accrued three weeks holiday but had only taken 2 weeks off and she had offered to work her notice. The problem is the employee was correct and my client had to pay up. Had my client said “Don’t worry you’ve got some holiday left just take that instead of working your notice” she may have saved herself a week’s money if the employee had agreed to take the holiday, even better she could have insisted that her member of staff take holiday if she had the right clauses in her employment contracts.

So two lesson here

1)      Make sure you have a clause in your contract that states that an employee may be required to use up any untaken holiday during their notice period.

2)      Never say “Don’t bother to come in” to an employee unless you like throwing money away!