The Ministry of Justice has announced that it is introducing an online service for the payment of employment tribunal fees. According to the announcement, the facility to pay online will be available from July 2013. This suggests that the new fee structure proposed shall be introduced then.
At the moment it costs nothing to bring an employment tribunal claim, but following consultation in 2011 the government is introducing the new fee structure so as to be in line with other court processes where fees are paid. Currently it costs £84m to run the tribunal system funded by the tax payer; the government aims to reduce this burden whilst still promoting justice for all. However many on low incomes are not required to pay full court fees so the government will be reviewing this for employment tribunal claims.
The introduction of fees is part of the government’s plan to promote early resolution encouraging people to look for alternatives to using the court system. Alternatives would be mediation, ACAS conciliation or directly negotiated settlement.
Fees will be payable in advance and there will be a two stage process; a fee will be paid to start a claim off and another fee will be due to be able to go forward with a hearing should that be necessary. The level of fee will be dependent on the type of claim being brought. For level 1 claims that include unlawful deductions, holiday pay, notice pay, redundancy pay the issue fee shall be £160 with £230 hearing fee. For level 2 claims that include unfair dismissal and discrimination the issue fee shall be £250 and hearing fee £950.
In cases where more than one claimant is bringing the same claim the fee structure makes provision for this and has suggested fees accordingly.
Level 1 claims
Two to ten claimants
11 to 200 claimants
201 or more claimants
Level 2 claims
Two to ten claimants
11 to 200 claimants
201 or more claimants
With the Employment Appeal Tribunal the issue fee shall be £400 and hearing fee £1200.
Other fees linked to the process are as follows:
An application to set aside a default judgement– The fee would be £100 which would be payable by the respondent.
An application to dismiss a claim following settlement or withdrawal– The fee would be £60 although it has been recommended that when a party withdraws their claim the respondent should not have to pay to get their claim dismissed.
An application for judicial mediation– The fee would be £600 and is payable by the employer.
A breach of contract counter claim– The fee would be £160 payable by the employer.
An application for a review of a tribunals decision or judgement– The fee for this would be £100 for level one claims and £350 for level two claims.
The government has recently announced the implementation of a new independent assessment and advisory service to get long term sick employees back to work. In effect this will be a government run occupational health service.
It has long been recognised that employees who go off sick for longer than four weeks can end up being off work for a huge length of time; occupational health can help manage the situation providing much needed advice and a defence to employers should ultimately they be faced with a possible employment tribunal if the employee is dismissed.
In my work as an HR consultant, I have always recommended to my clients that when they receive a fit note that indicates the employee requires more than two weeks off sick that they seek occupational health support asap with the agreement of the employee. The quicker the situation is dealt with in this manner the quicker the employee can be brought back to work in my experience. The worst thing to do is to ignore the problem as it will only escalate.
The first step would be to set up a meeting with the employee which could be in their home, in the company office or in a neutral venue. They should have the opportunity to be accompanied and should they choose a family member or friend, this should not be discouraged. They may feel they need that extra support if they are truly experiencing difficulties.
The employee should cooperate with the company requirements to find out more information about their health with the support of occupational health. If the employee refuses to sign the consent form required under the Access to Medical Records Act 1988 that will allow the occupational health advisor to contact their GP then they need to be made clearly aware that their persistent absence could result in their termination. Employers should beware of conducting hasty terminations in such circumstances and should wait until sick pay has been exhausted otherwise could be faced with a breach of contract claim.
Occupational health can be used to determine whether the employee is covered by the Equality Act 2010 in terms of disability and whether any reasonable adjustments need to be made. They can provide an assessment on the prognosis of the likelihood of return to work perhaps recommending a phased return. They will produce a written report, that is shared with the employee, which will provide the basis of a next meeting with the employee with a view to getting them back to work. Their service can also be invaluable with cases of intermittent absences eg Monday/Friday syndrome. They can help decide whether an employee is “swinging the lead” or may have a genuine underlying problem. An independent occupational health advisor is more preferable than an employer contacting an employee’s GP with their agreement. Whereas occupational health will act in the interests of the employer, the GP will act only in the interests of their patient; the GP might not be forthcoming with information requested of them.
According to the government only 50% of large companies and 10% of small companies have access to an occupational health service, however, there are many independent occupational health advisors in the UK who provide an excellent service to help employers with managing difficult sickness absence cases. Many HR consultants work closely with preferred occupational health providers who they trust. For a minimal cost their services are invaluable compared to managing a costly employment tribunal case due to badly managed sickness absence. Employers can terminate employees who have been experiencing severe sickness absence under capability, but the process must be managed fairly and legally.
In aid of Comic Relief last week the BBC has aired Celebrity Bake Off where each day four celebrities have showed off their baking skills with one celebrity being judged the winner. It has been a highly entertaining programme watching the celebrities struggling with the requirements of delivering signature bakes, a technical challenge and show stopper cakes to be scrutinised by judges Mary Berry and Paul Hollywood.
On Tuesday the line up of celebrities included Warwick Davis who began his career in Star Wars. He suffers from spondyloepiphyseal dyplasia congenita that causes his dwarfism. Warwick cooked delicately iced biscuits, a delicious bakewell tart and a wonderous three layered gateau; to ice the gateau he had to use a ladder. However, his baking was demonstrably a cut above the rest including the very competitive Duncan Banatyne and quite rightly he won the competition.
On Wednesday Ellie Simmonds of Team GB fame who won four gold medals in the Paralympics swimming appeared. She has dwarfism. She made flavoursome chocolate and orange scones, chocolate eclairs and a gateau. She regularly bakes at home and for her team mates and again produced some outstanding baking that won her the competition.
This programme was great to watch as it focused on everyone’s baking abilities and was level playing field in that respect. The two shorter celebrities had to have raised staging to accommodate their shortened height but that was the only reasonable adjustment made.
To a certain extent programme follows on from the outstanding achievements shown by the disabled athletes who took part in the 2012 Paralympics showing how anyone can excel at what they do and shine in their abilities given the chance.
Employers should take more note of what disabled people can do rather than focusing on what they can’t do. It is a shameful statistic that only one in ten disabled people are in work according to a report commissioned by the Equality and Human Rights Commission in 2012. One in six people who become disabled lose their job within the first year and that figure doubles after two years. This is a real shame as the talent pool could be widened if employers could only overcome the barriers to providing support and their prejudice. Legislation only goes some of the way in helping the situation.
Most disabled people do not want to be singled out for special treatment and many prefer to keep quiet about their condition. This is sometimes possible with disabilities that are not visible such as dyslexia and epilepsy, but it is not possible with an obvious physical disability. Therefore, the mindset of UK employers needs to be changed. This can be done by having more disabled people demonstrating their talents in the spotlight as we have witnessed this week.
HR support doesn’t need to be in the form of an HR department. Whilst that may suit large organisations which employ lots of staff, with a small company it is just not necessary because there is often no need and it is considered too costly even to employ an HR Manager. However, there will be situations that arise whereby even a small company will need HR support or employment law advice from time to time. These days there are many providers of independent HR support and advice – large independent call centres, call centres linked to chambers of commerce, employment lawyers and independent HR consultants to consider.
Even the internet can be used to source HR advice, but employers must beware of failing to correctly understand the information they obtain and then acting inappropriately. I recently heard about a business owner who wanted to dismiss a senior member of staff for poor performance. The business owner had not spoken to the employee about this at all. Instead he sought a template document off a business related website that informed the employee he was being invited to a meeting in order to be dismissed. If the business owner had sent that letter then he could have ended up with a costly employment tribunal, however he did actually speak to an HR consultant before doing so and was given correct advice on how to proceed.
The choice of HR support will depend on what type of service a company is looking for. A call centre HR service provider may be able to offer telephone HR advice but the chances are that different call centre operatives will pick up a call related to an ongoing situation, therefore, there will be advice from various advisors which may not always be good. By choosing either an independent HR consultant or an employment lawyer a more personal service is provided and by speaking to the same person each time an HR issue arises a relationship is built up. The advisor will get to know about the business and possibly the more problematic members of staff, therefore the advice will be more tailored.
The budget available for HR support could determine the type of HR support service required. In general the larger HR advice providers may charge a large annual sum for retained HR support and lock companies into lengthy, inflexible contracts. This is because they will have much higher overheads eg building and staff costs. Likewise employment lawyers, traditionally have a high fee structure. Perhaps the cheapest option could be an HR consultant who has lots of practical HR experience and good employment law knowledge. If they are CIPD qualified this is a good indicator that they have met the rigorous standards of the Chartered Institute of Personnel and Development and will provide a good standard of advice.
There may be bolt on services that an employer may require in addition to telephone and email HR advice. For example there may be the requirement for HR documentation such as employment contracts, employee handbooks, job descriptions and scripts. Large HR service providers may provide online access to template documentation that can be easily downloaded. However it is important to ensure that back up advice is available on the use of such documents to ensure that they will be used appropriately and legally. An independent HR consultant or an employment lawyer should be able to provide a similar service on an as required basis, but again the cost should be established.
Whilst a call centre can provide excellent HR advice on the phone and via email in the majority of cases they can not provide any on site HR support. Sometimes employers may need the back up support of an HR professional on site to help them with a difficult employee situation eg to have coaching with a disciplinary hearing and note taking or to assist with recruitment. Few employment lawyers provide this service, however, a flexible HR consultant would more than likely be able to assist.
So when considering sources of HR support and advice there are key points to consider. The most important thing for companies to remember is to get HR assistance when they are unsure of how to proceed with an employment problem otherwise it could cost them dear in an employment tribunal.
The MOD has just announced that there are to be 5,000 more redundancies in summer 2013. This follows a gradual reduction in the number of troops the UK maintains, with yet more to come so that by 2020 there will only be 10,000 in total. This is all part of a drive to help cut the deficit.
When managing redundancy there are key things that the MOD along with any employer needs to know.
1. Ensure the Redundancy is Genuine
An employment tribunal can investigate whether the redundancy is genuine, ie the real reason for dismissal so do not be tempted to dress up a performance or capability dismissal as a redundancy. This could result in a finding of unfair dismissal. Before starting the process assess if you could avoid making redundancies by considering whether cutting overheads or restructuring via salary cuts, shorter working weeks, job shares or unpaid sabbaticals could save jobs. You could also consider offering voluntary redundancy with a possible enhanced package to encourage employees to come forward. The needs of the business are the most important thing however and you do not have to give voluntary redundancy if you wish to keep valuable members of staff who volunteer.
2. Ensure you follow your own redundancy procedures
If you have a company redundancy procedure, make sure you follow it. An employment tribunal will be very interested in whether you have a policy and that you have followed it. If you don’t follow it you could be penalised for doing so.
3. Ensure you have you worked out your pools for selection
Ensure the proposed restructure is set out so it is clear from which departments or groups of employees redundancies are being made. Consider which jobs are at risk and identify the groups of employees who are doing similar jobs where the redundancies may be made (the pool).
4. Ensure selection criteria for redundancy is fair and objective
Devise a redundancy matrix to select who may be made redundant using selection criteria which is capable of being measured. It must be non-discriminatory. Reflect the needs of the business when selecting who may be made redundant. Selection criteria can include skills, experience and performance. Sickness absence can be taken into consideration but be careful in case there may be disability discrimination slant on that.
5. Ensure you consult correctly
Consultation should be meaningful and correct. Once you have identified which employees are at risk of redundancy, they should be advised of this and told the length of the consultation period; this will vary depending on the proposed number of employees possibly being made redundant. With less than 20 employees the consultation period is not stipulated in employment legislation so the timeframe can be flexible, however, do not rush this process. With 20-99 employees the consultation period must be 30 days before the first dismissal. With 99+ employees the consultation period is currently 90 days but from April 2013 this will be reduced to 45 days. It is important to include employees on long-term sick leave or maternity leave in all consultation discussions. Employee consultation meetings should be face to face and should be a two way process.
6. Consider Ways to Avoid Compulsory Redundancy
Discuss and give serious consideration to any suggestions made by employees that you have not considered – eg early retirement, freeze on overtime, ban on recruitment, terminate agency temps. Employees can sometimes come up with some creative ideas.
7. Look at suitable alternative employment
With each employee at risk of being made redundant if possible try and look for alternative employment elsewhere within the company – this is sometimes more possible with larger companies. It must be deemed to be mutually suitable with a four week trial period being offered to consider suitability by both employer and employee. If the trial period does not work out the employee may be made redundant with compensation if appropriate. If the employee refuses to accept reasonable suitable alternative employment they may lose the right to redundancy compensation.
8. Ensure you correctly calculate redundancy payments
Don’t forget to work out the cost of contractual notice or payment in lieu of notice and redundancy payments. Statutory redundancy payments are based on length of service, age and salary, subject to a current statutory cap of £430 a week; this will rise to £450 from 1 February 2013. Employees need to have two years continuous service to be eligible for redundancy pay. If the employee earns less than the statutory figure then you calculate the figure based on gross actual pay. Check employees’ contractual, policy and custom and practice rights to redundancy payments as there may be a right to enhanced redundancy payments. Untaken holiday also need to be calculated and paid. Bonus and commission payments may also be due. Notice pay will also need to be calculated if the notice pay is not being worked. Redundancy pay is untaxed up to a maximum of £30,000, however holiday pay, notice pay and bonus’ are taxed.
9. Set up a Dismissal Meeting
If compulsory redundancy can not be avoided organise a dismissal meeting and confirm the details in writing giving the right to be accompanied. Confirm the decision to terminate employment during the meeting and follow up with a confirmation letter.
10. Give the Right to Appeal
The termination letter should set out the terms of appeal to a more senior manager providing the right to be accompanied.
When applying a genuine occupational requirement in a job advert employers must be wary to ensure there is clear justification for its inclusion otherwise they could be liable for a discrimination claim.
Genuine occupational qualifications (GOQ) were first introduced in the Sex Discrimination Act 1975 which included a list of when they could be applied. They existed when there was a requirement for a particular job to have a person of a certain gender that would allow the employer to choose one applicant over another.
The Equality Act 2010 introduced a single ‘occupational requirement’ (GOR), which applies to all of the protected characteristics. Under this an employer must simply show that the requirement to discriminate is a ‘proportionate means of achieving a legitimate aim’. The list of genuine occupational qualifications outlined in previous legislation was done away with.
Now if a discrimination claim is brought, the burden of proof is on the employer to prove that a GOR is justified. There are some areas of work where discrimination in favour of a particular protected characteristic is permitted on the recruitment, transfer, training, dismissal or promotion of certain roles, with different tests applying, depending on the strand of discrimination law.
An employer must decide whether a GOR may apply before advertising the job. In very limited circumstances if an employer can shoe that someone with a protected characteristic (on grounds of age, gender, disability, gender reassignment, marriage and civil partnership, race, religion/belief, sex ur sexual orientation) is central to a particular job then an employer can insist that only someone with that protected characteristic is suitable for the job. All roles in an organisation must be considered separately. If there is a GOR relating to one role, it will not necessarily apply to all roles within the organisation. GORs should be reviewed each time the job becomes vacant, as circumstances may change. If only a few tasks require that the employee have a particular characteristic, an employer should consider whether duties could be reallocated so to other employees who do meet the requirement.
There is no definitive list so if unsure employers should take legal advice. Examples of GORs are a black actor required for the play Othello, the justification for this would be authenticity purposes. A female worker for a domestic violence unit; the justification being the women are seeking refuge from men. A same sex lavatory attendant; justification being privacy and decency. An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other people whose preferred language is BSL.
The recent case of Stuart v London City Airport has highlighted the importance of undertaking a reasonable investigation before an employer takes action. In this case the employer failed to investigate the conduct of an employee who the employer considered had stolen goods.
The employee was a grounds services agent who entered the duty free store within the airport to buy some presents. Whilst he had the goods in his hand he got involved in a conversation with a colleague which took him outside of the store without paying for the goods. He was then apprehended for removing the goods without payment. A store assistant had told the store manager the employee concealed the goods under his jacket before he left the store, however, they were never interviewed as part of the internal investigation or called to give evidence at the employment tribunal. The employer did not consult the CCTV footage nor interviewed the staff member who had beckoned the employee outside of the shop in order to have a conversation.
The employment tribunal found that dishonesty had occurred but the claimant appealed and the EAT found that the employer should have carried out a fuller investigation given the gravity of the situation before making a decision. The investigation was not considered reasonable. The outcome from the EAT was that a new employment tribunal hearing should take place to determine how far the claimant contributed to this dismissal.
The purpose of an investigation is to establish the facts of a case. This can be in the case in instances related to a disciplinary, bullying harassment, grievance and even sickness absence.
It is always best to make an initial plan by deciding how best to gain the evidence. This should include who should undertake the investigation, who should be interviewed together with what documents and evidence need to be obtained.
In determining who should undertake an investigation, ideally the investigators should be totally independent from the situation and the individuals involved. Ideally there should be two investigators, one person to ask the questions and the other to take notes as it so difficult to take and take notes at the same time. In a large organisation this can often be an independent manager supported by an HR representative. In a small organisation this can often be difficult due to manpower resources, but it is preferable that senior members of staff undertake the investigation. It is best to provide investigation training so that inexperienced investigators understand what to look out for and how to question witnesses. As an alternative it is possible to draft the assistance of specialist investigators or an experienced independent HR consultant. Speed is of the essence to ensure that evidence isn’t destroyed or key facts forgotten. It is always important to have an open mind.
The first step would be to interview the employee at the centre of the investigation. With a disciplinary situation it would be the employee whose conduct is in question or with a grievance it would be the employee who has submitted the grievance. The interview should be held in private with confidentiality at the forefront of proceedings. It is a good idea to allow the employee to be accompanied even at this stage particularly if detailed in company procedure.
Questions that tease out the main issues should be asked, ideally using open questions (who, what, when, where, how, why) to elicit information). If there is a note taker they need to remain alert to capture the answers; it can sometimes be difficult to concentrate. Unless they have fast shorthand skills, it is impossible to capture dialogue verbatim therefore it should be done as accurately as possible. It might be necessary to ask for the dialogue to slow down so that important points are logged. Nevertheless, questions that require a yes or no answer should be captured. It is important to remember never to put words into the mouth of the person being interviewed. A set of questions can be prepared before the interview that can be supplemented as the interview proceeds.
It is a good idea to take regular breaks which help take stock of information gathered and to refresh the mind. Some interviews can go on for hours so breaks are vital. Tea and coffee should be available.
All witnesses should be interviewed the in same manner. If fresh witnesses or new names are mentioned as the interviews take place it is important to interview these as well. It might also be necessary to interview witnesses more than once if new facts or discrepancies arise.
The whole point of the exercise is to leave no stone unturned to ensure that there is ultimately no miscarriage of justice.
All interview notes should be neatly typed up and ideally statements signed and dated by individual witnesses. With some large organisations an overall report is produced to decide a case to answer and/or to inform a hearing.
An investigation should be reasonable, but where an employee’s job is at risk and an employment tribunal claim possible, it is important to ensure that a thorough job is done.
The worst of the winter weather has hit the UK hard with icy temperatures and snow. Yet again millions of workers are struggling to get to work, some don’t make it at all.
So what are the obligations of an employer in bad weather situations? Above all the health and safety of employees is paramount and an employer shouldn’t expect employees to risk their lives getting into work with icy and possibly snow-blocked roads. Also there may be bus and train cancellations that will impact on an employees ability to get into work. However, there is no obligation for an employer to pay an employee who does not turn in.
In this day and age with electronic devices freely available, many jobs can be done at home using the PC and mobile phone. Due consideration to this should be made instead of insisting employees try and get into work. After all home-working can be very productive, therefore, it would be a good idea to organise IT systems so that work can be picked up remotely. For other types of organisations where employees have to be present, it might be a good idea to consider whether if customers or clients are usually present on site whether they too will be affected by the bad weather. In such circumstances it might be a good idea to close up the business completely until the weather has calmed down somewhat. Flexibility should be the key wherever possible with work location and working hours.
For such eventualities it is important to have a bad weather policy in place that covers bad weather situations so that employees and managers know where they stand.
The policy should contain information on requesting the employee to communicate with their employer in situations were they are affected by adverse weather conditions so their employer can be informed of what is happening. Furthermore the employer needs to know of any implications this could have on work deadlines, etc. and be able to provide permission for home-working where relevant.
Information on the pay situation in such circumstances is important. Employers need to provide clear information on whether they will pay or not if staff can be attend work. The employer may consider providing no pay or giving the employee the option to take holiday.
It has just been revealed under the Freedom of Information Act that eleven civil servants at Iain Duncan Smith’s department for work and pensions have been sacked for using Twitter or Facebook with 116 DWP employees who have faced disciplinary action for blogging and social networking offences since 2009 and being issued with a variety of warnings.
The DWP said use of Twitter, Facebook and other social media sites was “completely restricted” for most of its workers. The only employees allowed to use the sites are those who have a “genuine requirement for access”.
This news shows how important it is for organisations to have a robust social media policy in place as part of the employee handbook. By having a written policy on using social networking, an organisation can help protect itself against liability. A well written policy can give clear guidelines to managers and employees on what is acceptable and help provide definition between private and work lives. An employer should encourage responsible use of social media if access is provided to social networking websites. However employees need to know that their employer will look at all their postings in accordance with data protection monitoring rules and should be aware of these consequences. A clear link to the disciplinary policy is essential with guidance on how it will be applied.
A policy should encourage good practice and include details on network security, acceptable behaviour on the use of internet, emails, hand-held technology, the use of privacy settings and the use of blogging, tweeting and online chat rooms. Issues of confidentiality and a ban on representing the organisation when not permitted to do so should also be covered as well the use of company logo and branding. Guidance on the avoidance of harassing, obscene, defamatory, threatening, or other offensive content in all social networking should also be included. It is important to point out the requirement not to criticise or damage the organisations reputation in any way.
Social media is here to stay so confident businesses need to set the ground rules on behaviour. If used in a negative way social media can be an enemy but if used in a positive manner, as it was originally designed to do, supported by a robust policy, it can be used to harness employee engagement.
By having a social media policy in place it can provide defence at an employment tribunal and mitigate any risk for employer and employee.