Outdated or non existent employment contract and employee handbook
This is one of the main reasons I am contacted by small and medium sized businesses. It is quite easy for existing documents to get out of date as the employment law changes frequently. Despite the implementation of the Employment Rights Act 1996 that requires an employer to provide a new employee with employment terms and conditions (contract) within eight weeks of starting employment, many business still do not do so. Failure to provide this document can lead to compensation equivalent to up to four weeks pay in an employment tribunal. An employee handbook sets out the guidelines and rules that all employees have to adhere to and should be drafted in accordance with current employment law. Outdated policies could lead to wrong actions being taken against an employee and a possible employment tribunal.
Lack of understanding with employment law
Since the 1990s there has been a steady stream of laws related to employment that have been implemented in the UK. Employee issues such as disability, pregnancy, discrimination, health and safety and pay can be complex to deal with. Many laws now contradict one another and it takes an employment law specialist to unpick the essentials for any given employee situation. The cost of failing to understand current employment law could lead to an employment tribunal.
A disciplinary matter needs urgent attention
From time to time a serious situation may occur in the workplace and it is important that, even if it is minor, that it is dealt with quickly. Certainly in agross misconduct situation it is often essential to suspend an employee or employees as soon as possible whilst a thorough investigation takes place. Time is of the essence to ensure that any important evidence is not hidden or destroyed. It is important to take urgent advice where you feel you are lacking experience of how to adequately handle these matters.
An employee is not performing well
So many businesses have under performing employees that they fail to deal with. Unfortunately this can impact on profits and employee morale. It is not nice for fellow employees to see a poorly performing colleague not being dealt with by management. The matter should be dealt with in a structured legal framework to try and get the employee back on track. It can be time consuming to deal with but ultimately the employee can be fairly dismissed if a performance management process fails.
You have no time to deal with employee matters
Dealing with employee issues can be very time consuming. With a problematic employee you have to meet with them and keep a paper trail of what you have done to try and manage the situation. Most business owners prefer to keep their focus on the business which is time consuming enough without have to deal with problematic employees which is where HR can help.
Reflecting on the many HR issues I have helped my clients with I have noticed a common theme of basic mistakes many employers make. They are quite simple to put right, but can be costly if they are ignored.
1) Not issuing an employment contract and employee handbook
Many businesses that employ staff still fail to provide employment terms and conditions within eight weeks of a new employee starting in accordance with the Employment Rights Act 1996. A contract (employment terms and conditions) can contain basic policies such as grievance and discipline so an employee handbook may not always be necessary if there are only one or two members of staff. However if there are five or more employees it might be a good idea to develop a small employee handbook to provide guidance on various HR procedures. It is important to remember that if an employer ends up in an employment tribunal and has not issued a contract then should the employee win their case an award can be made of up to four weeks pay for the lack of this document.
2) Not undertaking a thorough investigation
With many HR issues it is really important to do a thorough investigation to avoid a miscarriage of justice further down the line. An investigation may be necessary in relation to disciplinary matters, capability, bullying & harassment and sickness absence. An investigation should uncover the full facts that will inform a decision of whether to take action against the employee or not. If an employer has dismissed an employee for gross misconduct without undertaking a full investigation they could end up losing an employment tribunal.
3) Failing to take action with bullying and harassment
Let’s face it dealing with bullying and harassment in the workplace is not pleasant and many employers turn a blind eye to the plight of employees who speak of being bullied and harassed. If an employer does not ignore the problem, many pay lip service to undertaking a full investigation and dealing with any perpetrator. Whilst bullying per se can not be pursued in an employment tribunal, employers need to be aware that if the harassment can be pinned on a protected characteristic and proven in an employment tribunal, an employer may lose their case.
4) Failing to manage poor performance
This is another issue that employers tend to shy away from. Perhaps it is because they would prefer not to sit down with the employee and speak about the performance issues face to face and they fear possible conflict. Us British are not very comfortable with delivering bad news. However, poor performance is a financial cost to businesses – direct costs are loss of productivity and profit and indirect costs of morale of those employees who watch the poor performer not being dealt with.
5) Failing to manage sickness absence
Intermittent or long term sickness absence is not easy to deal with. With intermittent absence it is important to watch out for trends eg Monday/Friday syndrome and nip things in the bud before they get out of hand by having an informal conversation to begin with about the problem. With long term absence many employers don’t think they can intervene when their employee sends in a sick note that means they will be off for weeks. However it is important to deal with the situation as soon as possible by meeting with the employee to find out what is happening. After all an employee is being paid to come to work so an employer needs to know the prognosis for the future and how quickly they will return to work, if at all. They may need the support of an occupational health advisor preparing a report that will help an employer manage the situation. Research shows that the longer an employee is allowed to remain on long term sick without it being dealt with the longer they will be absent. If an employee is off so long they eventually exhaust sick pay an employer may consider termination.
6) Failing to manage a disciplinary situation
Disciplinary situations in the workplace can range from misconduct to gross misconduct, but nevertheless need to handled and quickly. If the situation is gross misconduct, then the employee may need to be suspended to get them out the workplace, prevent any conflict or further wrong doing. A thorough investigation should then be completed as quickly as possible followed by a fair hearing allowing the employee to have their say with the right to a companion. The outcome should be confirmed in writing with the right to appeal. The disciplinary situation needs to be fair and reasonable to avoid a compensation award in an employment tribunal.
7) Not consulting in relation to a redundancy situation
Consulting about redundancy is part of the legal process and consultation should be meaningful. The number of staff at risk of redundancy will dictate how long the consultation period should be. From April 2013 if there 100+ staff the consultation period shall be 45 days. With 20-99 staff the consultation period is 30 days and less than 20 employees there is no set time frame. However with the latter the consultation period needs to be reasonable and I would advise that at least a week is provided between the last consultation meeting and notification of dismissal depending on the number of staff to be consulted with. Failing to consult will attract a protective award in an employment tribunal.