Is the Introduction of "Fire at Will" Dismissals a Good Idea?

Osborne has just proposed the introduction of “fire at will” dismissal law that will enable small employers to dismiss staff more easily.  The employment minister Norman Lamb is unveiling plans during March which would remove restrictions on laying off staff at businesses with fewer than ten employees.  It is proposed that poorly performing employees are laid off whilst the employer can recruit staff who will perform more effectively. It is claimed that current rules allow employees to “coast along” without management action.  The proposal is designed to support the “cutting the red tape challenge” and increase employment.  However, the latter is debateable whether employment legislation is contributing to increasing unemployment.
There are plenty of employers in the UK that do not currently adhere to employment law and in treating their staff poorly run the risk of incurring an employment tribunal claim during which successful employees have the right to be compensated for lost employment rights.
Should the government introduce their proposal of compensated no fault dismissals, employment rights will be diminished.  The government’s proposal is underpinned by an anticipation that the value of small businesses to the economy will increase.  However the danger of changing the law to allow easier dismissals for small companies could instead backfire and scupper the government’s plans of their contribution to economic growth.
There could be many underlying reasons of poor conduct that require deeper investigation and promotes fair treatment.   If the law is changed and small businesses are allowed to operate in a “fire at will” manner, the effects on employee morale within a company could be very damaging.  Company reputation will also suffer and have a negative impact on the bottom line.  If the dismissal has a discriminatory angle employees have the right to go to an employment tribunal regardless of length of service adding to costs.
Poor performance, regardless of company size, is easy to manage through a fair process of monitoring and support.  Practical advice can easily be sought from an HR practitioner. 
    
The government needs to carefully think about the introduction of such a proposal. Coupled with their firm intention to introduce fees for claimants to lodge an employment tribunal claim, access to employment rights for many down trodden workers will be, all but, practically removed.  This will mean going back to before the beginning of the 20th century when protection for worker rights began and will not be good for the future.   

How To Use an HR Consultant

Bringing an HR consultant into your organisation should be done to achieve a specific objective.  It may be a project that needs delivering eg a recruitment campaign, completion of a TUPE or redundancy project or to cover a maternity leave post.  Whatever the company requirement, whether linked to strategic or operational HR objective there is an HR consultant to fit the bill, whether they be a generalist or specialist.

The advantages to bringing in an external professional can be buying in specific expertise just when needed.  Many HR consultants have many years solid practical experience before launching into the world of consultancy.  They bring with them a fresh eye on the workings of your company and can often offer new problem-solving solutions to issues such as staff retention or absence and provide tailored solutions.    They are used to “hitting the ground running”, and can build key relationships quickly, establishing credibility and just getting on with the job in hand whether this be as a change agent or role caretaker or both.

Being an “outsider” an HR consultant tends not to get involved with office politics.  Their decisions can, therefore, be based on benefits to the organisation, not whether it will upset the opinions of certain individuals.  This is particularly important in any change management and organisational design project. 

Using an HR consultant can save an organisation time and money.  Time is saved by, for example, outsourcing a project that existing HR professionals in an organisation can’t spare from the usual day to day tasks; this can include delivering coaching or conducting 360 degree appraisal.  A consultant can also be brought in on an ad hoc basis when no HR expertise exists at all within the organisation eg to conduct a disciplinary investigation or provide support on a poor performance issue.  

Other cost savings can include not having a permanent member of staff on the payroll and if the work can be completed from home then office resources are saved. 

A disadvantage of using an HR consultant can, on the other hand, be the potential expense.  Depending on the level of expertise required, consultant fees can vary from £200 to £1,000 per day so companies need to consider what they can afford and negotiate the daily rate.  To avoid escalating costs consideration should be given to defining a project cost eg as with management training.     

To avoid any confusion a clear agreement and contract needs to be drawn up at the start between the company and consultant establishing clear goals with regular meetings built in to check progress.  Clear responsibilities should be allocated to avoid any confusion.  Fees and expenses need to be included as well as confidentiality issues and problem resolution.     
Before recruiting an HR consultant, a company needs to have a clear idea of what they are trying to achieve and draw up a project plan and brief for discussion.  There should also be a job description and person specification.  With the latter this provides the basis to recruit the right calibre of person.  As the need for an HR consultant can often be at short notice, companies need to consider the best place to advertise or find the right candidate and consider a more streamlined recruitment process. 
Once recruited the consultant should be provided with a robust structured induction to enable them to hit the ground running. 



What is Constructive Dismissal?

I receive a lot of enquiries from disgruntled employees looking to take their employers to an employment tribunal for constructive dismissal.  Constructive dismissal is very hard to prove. Employees must show that there was a fundamental breach of contract by the employer that leads to a breakdown in trust and confidence.  They must then show that the decision to terminate their employment was in response to the breach.  The grievance procedure should always be pursued first before terminating their contract.
When hearing a case of constructive dismissal an employment tribunal will consider the Western Excavating Test derived from Western Excavating Ltd v Sharp 1978 caselaw:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

The employment tribunal panel will have to decide whether a dismissal has taken place then will consider the fairness of that dismissal.    

A case that I successfully represented recently involved an employee complaining to her employer about the struggles she was having with her job that had been going on for months.  The employer wrote back to her advising her to get on and do her job otherwise they would be dismissed or alternatively they could choose to resign.  At the time the employer was unable to offer any work to the employee.  The employment tribunal panel decided that the employee had been unfairly constructively dismissed.

Employers – Are you Ready for the Diamond Jubilee?

Having a holiday policy in place to manage time off and leave requests will be even more important in 2012 with the Queen’s Diamond Jubilee.  The policy should be fair and consistent whilst maintaining employee morale during the festivities.  There will be an additional bank holiday on Tuesday 5 June and the Spring Bank Holiday will be Monday 4 June so potentially with an extra three days booked employees could take a nine day holiday.  It coincides with the summer half term so employers may face a huge number of holiday requests.

There is no statutory right to bank/public holidays, so the announcement of an extra bank holiday does not increase any entitlement to holiday under the Working Time Regulations. Whether an employee will benefit from the additional bank holiday will depend on the wording of their contract.  A contract which entitles a worker to 20 days annual leave + public holidays would potentially give the worker an extra day’s paid holiday whereas a contractual clause stating 28 days including bank holidays would not entitle employees to an additional public holiday. There is no legal right to be paid any extra for working a bank holiday. This will depend on the terms of the employment contract.

Employers need to consider are clashing leave requests  and ensuring sufficient cover so they need to plan ahead to avoid any pitfalls.  

Employment Tribunal Reform – An Overview

The draft tribunal regulations are being laid down before Parliament with a huge raft of proposed changes designed to make the employment tribunal system more effective and decrease the ever increasing burden on the system.


The proposals include that claims are to be lodged with ACAS to allow early conciliation before they enter the tribunal system.  ACAS will have one month (which may be extended for a further 2 weeks) in which to offer non-compulsory early conciliation, during which period the clock for the relevant time limit will be stopped. ACAS will retain its duty to provide post claim conciliation.


The use of mediation and compromise agreements is also proposed with the aim of increasing the use of alternative dispute resolution and improving the use of simplified compromise agreements where employment needs to end.


It is proposed to tackle weaker cases by introducing a fee.  Currently there is a requirement to pay a deposit order of £500 if a tribunal judge feels a case is weak and the claimant wishes to proceed.  This will become more flexible with the ability to increase an order to a maximum level of £1000.  There will also be a maximum cap on cost awards limits from £10,000 to £20,000.


With a view to shortening tribunal hearings it is proposed that witness statements should be taken as read, unless a judge or tribunal directs otherwise. Additionally, parties and witnesses attending tribunal hearings will no longer be able to claim for the payment of their expenses.  Unfair dismissal cases will normally be heard by an employment judge sitting alone.


The draft regulations include a proposal for extending the qualification period for unfair dismissal from one to two years but only for employees who commence with new employers from 6 April 2012.


The introduction of financial penalties for employers is also proposed if they are found to have breached employment rights with judges having flexibility on imposing a charge where to negligence or malice is found. 

Employers – Are You Engaging Your Employees?

Companies can easily increase their profits by actively engaging with their employees.  It makes sense that the more engaged employees are the harder they will work with the sense of a shared purpose which will ultimately benefit the business hugely.  Employees need to feel valued and that they are being listened to.  There are lots of ways an employer can improve employee engagement.
It is important to praise people and say thank you for a job well done.  Saying thank you goes a long way to increasing morale and can often work more wonders than a pay increase.  Recognising an employee’s success  can be an informal process or formally implemented with an “employee of  the month” certificate.  Ask employees for their ideas then share and implement the good ones. Provide a new and interesting project that will motivate an employee having taken the time initially to find out what they would like to do.  Find out what your employees want from an employee survey and encourage high participation to ensure “true” results which should then be used for improvements.  Think about implementing manager “back to the floor” sessions so they can experience what it was like “just being an employee” and understand current employee issues with the aim to put things right that are not working.   
Make time for fun in the workplace; organise a lunch for everyone to attend either on site or in a nice restaurant or install a TV for lunchtime viewing. Provide a nice working environment and allow employees to customise their personal space.   If deadlines or targets have been met allow employees to leave early on a Friday. Offer stress relief activities. Celebrate birthdays. 
All these ideas are either low or no cost and can make a huge difference to engaging employees to improve the bottom line.  

Tackling Racism in Football

Racism in football has been in the news several times in recent months. John Terry is charged with racially abusing Anton Ferdinand and now Mark McCammon claims he and other black players at Gillingham Football Club were treated differently to white players and is making an employment tribunal claim for racial discrimination and unfair dismissal to be heard later this year.  The Prime Minister is aiming to crack down on racism in football and will be examining the lack of black coaches, managers and referees in the game.  The Football Association are now looking at tougher punishments for players and managers accused of racist behaviour.

The Equality Act 2010 makes it unlawful for an employer to discriminate against an employee because of race. Race includes colour, nationality and ethnic/national origins.  It doesn’t matter if the discrimination is done on purpose or not. What counts is whether, as a result of an employer’s actions, an employee is treated less favourably than someone else because of race. The Equality Act 2010 Act protects all racial groups, regardless of their race, colour, nationality, or national or ethnic origins. Every part of employment is included; recruitment, terms and conditions, pay and benefits, status, training, promotion and transfer opportunities, right through to redundancy and dismissal. There are four kinds of unlawful behaviour.

a) direct discrimination – where race is an effective cause for less favourable treatment eg not being offered a job because of a particular nationality,

b) indirect discrimination – where rules or policies are applied to everyone but which particularly disadvantage members of a particular group if that can not be justified eg qualifications required for a job post which have only been gained in the UK,

c) harassment – participating in or allowing or encouraging unwanted behaviour that offends somone or creates a hostile atmosphere eg making racist remarks,

d) victimisation – treating someone badly because they have complained or supported someone bringing a complaint about discrimination eg taking disciplinary action against someone as punishment for their complaint about race discrimination.

Employers need to have a clear policy and procedure in place that gives clear guidelines for conduct and how misconduct will be dealt with.  The FA would do well to heed this advice. 

Are Zero Hours Contracts Legal?

Yes zero hours contract are legal.  They are contracts that are provided to casual and sessional workers.  They are ideal for an employer wishing to have a flexible workforce to meet fluctuating work demands.  Zero hours contracts are used extensively in the hospitality industry and social care sector.  They operate on a mutual no obligation relationship; the employer has no obligation to offer work and the worker has no obligation to accept the work.  For the employer it is advantageous to have a bank of casual staff to call upon when increased demand arises and to be sure that someone will be available to do that work.   

Zero hours contracts only command pro rata holidays in terms of employment rights and it is important to keep records of hours completed to calculate holiday pay.  Holidays can then be paid quarterly or, if appropriate, on a rolled up basis carefully following the rules for rolled up holiday pay.  Workers with zero hours contract should be used on an ad hoc basis only so that additional employment rights can not be pursued in an employment tribunal.

How Can I Grow and Improve my Business Through Better HR Management?

A company’s employees ie its human resources are its greatest asset and how they are managed can be the key to growing and improving a business; this should always be a strategic objective regardless of company size.  HR management can include recruitment, induction, performance management, health & safety management, pay and benefits, wellness, diversity, employee motivation, communication and training to name but a few aspects.  Providing leadership and promoting culture whilst adhering to employment law are also essential.
Better HR management starts with making good recruitment decisions so that you are recruiting the right quality of individual with the key skills your business needs.   A structured recruitment process is required that incorporates ability and psychometric tests along with the traditional interview.  Providing a competitive pay and benefits package will attract the right calibre of applicants in the first place; benefits can be both financial and non-financial eg flexible working is highly valued by employees with minimal costs to introduce.  A well designed, structured induction process will then settle your new recruit  into their job so they begin to quickly start performing well.  Consideration to an ongoing varied training and development plan is essential to keep the momentum going and develop key skills which will benefit both the individual and the business.
   
Employees should be managed fairly and equally by trained line managers who encourage them to get involved in the work environment through two way communication.  They should be provided with interesting work that provides job satisfaction.  Recognition for successes is important and can be provided financially or through feedback and praise so that employees feel valued.  This will stimulate their motivation to work harder.  Employees can therefore become an engaged workforce which leads to higher productivity with a huge impact on the bottom line allowing a business to grow and improve. 

Do I need a barrister to defend me at an industrial tribunal?

One of the recent search terms on my website (employment tribunals page) has been “do I need a barrister to defend me at an industrial tribunal”.  The simple answer is no you don’t need a barrister it’s whether you can afford one.  There are, however, other more cost effective options to consider.  You could always think about representing your employment tribunal case yourself.  This would be the most cost effective route in terms of finances, however, in terms of time it would be very expensive.  You will have to ensure you have your paperwork in order and that you adhere to the essential deadlines set by the employment tribunal office.  The process can be very lengthy and time consuming depending on the issues related to the case.
As an alternative if you don’t have the time you may like to instruct a solicitor to represent your employment tribunal case,  however, although this would be time effective the financial costs of using a solicitor could be very high as they often charge by the hour for their time.  You would also need to check that they have the experience of representing in court – some don’t. 
A more cost effective solution both in terms of your time and money would be to instruct an HR consultant experienced in the tribunal process with a demonstrable track record of undertaking employment tribunal work.  An HR consultant can often offer more flexible charging terms.  They should be able to coach you seamlessly through the process keeping you fully informed as to what is happening at each step, but not involving you until really necessary.  They should also be able to undertake the paperwork processing, liaison with the other parties, ACAS and the tribunal office, negotiation settlements then providing effective representation during the hearing if things go that far.