Category Archives: Bullying

Protected Conversations Must Remain Secret

SUMMARY: Learn more about protected conversations with your employeesPrivate conversations

In 2013 there was a welcome change, which now enables employers to have what are called protected conversations with their employees about ending the employment relationship.  Previously, employers had been nervous about having such conversations, due to the risk that an employee would later rely on what had been said as evidence in an unfair dismissal claim.

Since then employers in some circumstances have been able to speak more freely with those employees who are not considered to have a future with the organisation, usually because their performance or conduct is substandard. Once the discussions have started, there are likely to be two outcomes:

  1. The employee agrees to leave and their departure is managed with a settlement agreement to remove the risk of any tribunal claim. To learn more about settlement agreements, please click on the following link – http://www.fgsolicitors.co.uk/news/settlement-agreements-a-perfect-ending/
  2. The employee declines the offer of an agreed departure.  If that is the case, the employer can then go back to its internal procedures to manage the situation. If the employee is subsequently dismissed, the following protection arises so that there can be no reference to either:
  • the content of any settlement offer or the pre-termination discussions; and/or
  • the fact an offer has been made or pre-termination discussions have arisen. This level of protection has recently been confirmed by the Employment Appeal Tribunal, which explained that an employee should not be able to refer to the fact discussions have taken place pre-dismissal in an unfair dismissal claim.

Clarification was also provided that the protection extends to any internal discussions between different managers and human resources.

Protected conversations are potentially a safe way of managing straightforward people management issues. Employers however wanting to have such discussions should be aware of the following:

  • The protection is lost if either party engages in improper behaviour including for example, bullying, harassment, discrimination, victimisation, physical assault, or undue pressure.

Telling an employee that the capability or conduct procedure will be invoked if terms cannot be agreed would not be improper behaviour.  Stating that the individual would be dismissed if they do not agree to leave would be improper behaviour.

  • The employee should be given a reasonable period of time to consider any offer and take advice; ten days is usually considered to be reasonable in most cases.  Although there is no statutory right to be accompanied at any meeting where a protected conversation takes place, as a matter of good practice an employee should be entitled to be accompanied by a work colleague or a trade union representative.
  • The protection will only apply in respect of “ordinary” unfair dismissal claims. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing or health and safety), or any other claim such as discrimination or breach of contract, the protection afforded to pre-termination negotiations will not apply.  This does therefore create inherent uncertainty in the effect of initiating a pre-termination negotiation until an employee commences proceedings, or decides not to do so as settlement terms have been agreed.

If you consider that you may want to have a protected conversation with an employee, it is preferable to take legal advice before doing so.  This will ensure that you are confident that a protected conversation is the right way forward and if not, what other ways there are to managing the situation.

Contact Details

To explore how protected conversations and settlement agreements can provide solutions to workplace problems – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Top Tips for Effective Performance Management

efficacy_levelSUMMARY: Getting the best from its greatest asset, its staff, should be every organisation’s goal. This can be achieved using a combination of strategies including recruitment and retention; training and staff development, as well as performance management strategies.

We have produced a list of some simple dos and don’ts for dealing with the performance management of staff:

DOs:

  • DO take a proactive approach and seek to resolve performance management issues at an early stage. One way for achieving this is conducting regular meetings with staff at which performance management issues (as well as other general matters) can be raised informally.
  • DO investigate why the employee’s performance is falling below the standard expected; for example, consider whether the employee is dealing with an increased workload or dealing with non-work related issues which are impacting on their performance. Always consider the employee’s explanation for performance issues and identify if other policies are triggered such as health management, stress management or bullying and harassment policies.
  • DO make sure an employee is aware of the standard expected of them and give them a reasonable opportunity to meet those standards. Any goals set to underpin performance expectations should be SMART and supported by the provision of training and/or managerial support where appropriate.
  • DO use probationary periods effectively and consider extending these periods if performance is an issue. Ensure that review meetings are scheduled at appropriate intervals throughout probationary periods.
  • DO review your procedures and processes for managing poor performance on a regular basis to ensure they are in accordance with current case law and legislation.

DON’Ts:

  • DON’T use the annual staff appraisal to address performance issues. Also ensure that, where performance is discussed as part of the staff member’s appraisal, it gives an accurate picture of their performance.
  • DON’T forget to keep records of all discussions and correspondence relating to an employee’s performance – this includes both the informal and formal elements of the performance management process.
  • DON’T confuse performance management policies and/or processes with other policies and/or processes such as sickness absence or disciplinary policies and processes. Check whether your organisation has a separate policy for performance management or take advice on which policy is adopted in these situations.
  • DON’T forget that the ACAS Code of Practice on Disciplinary and Grievance Procedures applies to dismissals for poor performance. Failures to comply with the Code can result in uplifts to compensation being made where there is a failure to follow a fair procedure and the employee successfully claims unfair dismissal.
  • Finally, DON’T be afraid of tackling poor performance but DO ensure your strategy for doing so is legally compliant.

Contact Details

If you would like more information on performance management, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

On the 8th Day of Christmas…

8th Day of ChristmasOn the 8th day of Christmas my employee said to me…. “I didn’t enjoy the Christmas party as one of my colleagues kept harassing me.”

With the ever increasing demands of work the Christmas party is a great way to say thank you to staff. Most employees, when entering into the party spirit, will remember that there is a need to convey some semblance of good behaviour; sometimes, however a small number of staff are forgetful of this and lose all sense of propriety. In most instances their behaviour will be mildly amusing or annoying but in some cases it can become offensive and distressing.

Regardless of whether the party is away from the workplace and/or not in work time, employment law will still apply. This means employees who behave inappropriately towards their colleagues can be held accountable for their behaviour. Additionally, employers can be held responsible for the conduct of an employee towards a colleague where bullying, harassment and discrimination is involved.

It is therefore important to take seriously complaints of this type and not treat them any differently because the behaviour complained of occurred at a social event. Ignoring such a complaint could lead to a costly employment tribunal claim and reputational damage. Key considerations for an employer wishing to minimise these risks include:

  • Ensuring the complaint is dealt with quickly and impartially under the grievance procedure – the procedure should include the usual stages such as an investigation, meetings and an appeal.
  • Taking disciplinary action if the complaint is upheld.

However, proactive employers can also take preventative steps to minimise the risk of complaints in the first place, such steps can include:

  • Implementing and communicating an equality and harassment policy.
  • Providing equal opportunities training.
  • Dealing with complaints fairly and effectively.

Implementation of these simple steps should enable everyone to focus on the true purpose of the event and have fun at this time of year.

Contact Details

For more details about the issues in this article please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Is Caste Discrimination a Workplace Consideration?

 

DiscriminationSUMMARY: Chandhok and another v Tirkey establishes that race discrimination can include caste discrimination.

Caste discrimination in the workplace

The recent Employment Appeal Tribunal (“EAT”) decision in Chandhok and another v Tirkey (“the Tirkey case”) caused a bit of a stir. Whilst many of us focused on the significant award of nearly £184,000 made to the claimant, a domestic worker, in relation to her minimum wage claim, the case was of greater importance as it considered the issue of caste discrimination in the workplace. Until now there has been much debate as to whether a worker who had suffered caste discrimination had the right to legal redress.

Caste usually refers to social levels in certain cultures and racial groups. The impact is that individuals’ positions in society are fixed by birth or occupation and are hereditary. For example, an individual’s caste could be determined by the occupation of their forefathers.

In 2010 the Government-commissioned report on caste discrimination (“the 2010 report”) recognised that caste discrimination could be an issue for employers. This was the case even though from a legal perspective the concept was not expressly addressed in the Equality Act 2010, which only makes reference to “race” which includes “colour; nationality; ethnic or national origin”.

Examples of workplace caste discrimination

The 2010 report did however provide examples of workplace caste-based unfair treatment, bullying and harassment. These included:

  • Exclusion from work social events and networks.
  • Humiliating behaviour such as “women of so called upper castes not taking water from the same tap from where the so called lower caste person drinks”.
  • Bullying and harassment by superiors which also affected promotion, task allocation and dismissal.  Examples given included:
    • Not permitting someone of a low caste to take holiday when requested.
    • An individual being promoted to manager but his team not accepting his authority because he was of lower caste than them.
  • Recruitment – if employees are taken on by recommendation, this could be because they are of the same caste.
  • Task allocation – a higher caste manager was alleged to allocate better paid work to higher caste employees.

The equal treatment principal

Whilst employers are fully familiar with the legal requirement that all workers must be treated equally regardless of a protected characteristic under the Equality Act 2010, caste discrimination has always been a grey area.

Caste discrimination is a type of race discrimination

The Tirkey case has however provided some long awaited clarity, confirming that caste discrimination can be classified as a type of race discrimination. This case also provides a clear (if extreme) example of caste discrimination in the UK – on the particular facts it was found that Ms T was the victim of unlawful harassment on the ground of her race (as well as other successful claims).

The facts of this case are as follows:

  • Ms T worked for Mr and Mrs C as a domestic worker. Her caste (which is inherited and immutable) is the Adivasi, which is known as a “servant caste”. Adivasis have been recognised as being at the lowest point of almost every socio-economic indicator, and are frequently equated with Dalits (once known as “untouchables”). Ms T claimed that Mr and Mrs C treated her badly and in a demeaning manner, and that this was in part because of her low status which was infected with considerations of caste.
  • The employment tribunal was told that over a four and a half year period Ms T:
    • worked an 18-hour day, seven days a week;
    • slept on a foam mattress on the floor;
    • was prevented from bringing her Bible to the UK and going to church;
    • had her passport held by Mr and Mrs C and she had no access to it;
    • was not allowed to call her family; and
    • was given second-hand clothing instead of choosing her own clothes.

This is (we hope) an extreme situation which does not involve a normal employer/employee relationship. Employers should however be aware that caste discrimination can and does occur in many business situations.  The 2010 report stated that caste awareness in Britain is concentrated amongst people with roots in the Indian subcontinent, who comprise five per cent of the population.

Equality and diversity initiatives can be beneficial

Employers with robust management initiatives around equality and diversity should be in a position to prevent unlawful discrimination on the grounds of a worker’s caste.  Main considerations for any equality and diversity strategy should involve the following:

  • Having a top level commitment to equality and diversity in the workplace.
  • Ensuring there is an equal opportunities policy in place which makes it clear that discrimination, bullying and harassment will not be tolerated. Employees should be made aware of the existence of the policy and the likely sanctions for breaching it.
  • Making sure equality training is an integral part of any training programme.
  • Analysing business decisions and practices which could have the effect of discriminating on the grounds of any protected characteristic including race (caste).  Areas for review include: discipline and grievances; recruitment; promotion; pay and reward; terms and conditions; and access to training.
  • Investigating complaints of discrimination, bullying and harassment under the grievance procedure or, where relevant, the anti-harassment and bullying policy.
  • Having strategies which ensure that the workforce is diverse and is representative of the areas/communities from which it is drawn.
  • Monitoring the effectiveness of the equal opportunities policy.
  • Taking remedial action where inequality is identified.

Those businesses that strive to remove workplace bias will find themselves much better off in terms of staff morale, productivity and access to untapped talent.

Cases

Chandhok and another v Tirkey [2015] IRLR 195

Contact details

For more details about discrimination in the workplace, developing workplace equality and diversity strategies and training please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Thank you for attending our Seminar!

Effective Discipline & Grievance Processes

Thank you to all those who came to our Effective Discipline and Grievance Processes Seminar, which was held on 15 September in association with the CIPD Bedfordshire Branch.

The event was well attended and provided an opportunity for organisations to meet up and obtain a useful insight into effective discipline and grievance processes as well as gain practical guidance on difficult cases.

Floyd Graham was the featured speaker and struck a chord with many of the attendees from whom we have received some great testimonials via our feedback questionnaire.

If you missed the event and would like to receive a copy of the presentation slides for the event then please contact us via the details below:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

Performance Management Seminar – 15 September 2015

Performance Management

Effective Discipline and Grievance Processes for Performance Management:  Practical Guidance on Difficult Cases - in association with: CIPD Bedfordshire Group

Date: Tuesday 15th September 2015

Time: 9:30am – 13:00pm

Venue: Elstow Playing Field Association Main Hall, Wilstead Road, Elstow, Bedford, MK42 9YP/YF

Cost: Free with buffet lunch included

In association with the Bedfordshire CIPD Branch we will explore how you can apply the law effectively to support  performance management particularly focusing on dealing with difficult cases. The  session will provide insights into how investigations and disciplinary hearings should be managed when allegations of unfair discrimination, harassment or bullying are being considered. We will then explore best practice guidelines when hearing grievances arising from protected disclosures/ whistle-blowing.

To book your place at our Performance Management seminar, please contact us using the details below:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

FGazette April 2014

April 2014 FGazette

Welcome to the latest edition of FGazette! The quarterly newsletter of FG Solicitors – Lawyers for today’s employers.

We are delighted to present the April edition of the FGazette, which focuses on Discrimination.

If you have any problems viewing this link, please contact us on 01604 871143 or fgmedia@fgsolicitors.co.uk

Whistleblowing Update

17663630_sSUMMARY: The Enterprise and Regulatory Reform Bill is currently progressing through Parliament and proposes three significant changes to the current whistleblowing legislation. The recent case of Onyango –v– Adrian Berkeley t/a Berkeley Solicitors has also widened the concept of a protected disclosure to include a disclosure made after an employee’s employment has terminated.

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