A strong HR function needs to be supported by legally compliant and clearly written employment documentation.
A failure to regularly take stock and ensure that these documents are fit for purpose can undermine the strategic aims of your HR team and managers. Out of date documentation will impact on operational efficiency, limit managers’ ability to manage and increase the likelihood of legal claims and financial penalties.
Disputes can be minimised if up-to-date contracts, policies and procedures are in place and are effectively communicated to the workforce. Employers who want more certainty should ensure their risk management programme includes an annual audit of employment practices and documentation.
The annual audit
A successful audit will identify whether the documents comply with current legislation and reflect current working practices.
FG Solicitors’ specialist independent audit continues to highlight the following problem areas which are often overlooked:
- Legislative changes have not been addressed
Developments in legislation and regulatory requirements can bring about additional obligations which need to be managed:
- Even now employment documents do not reflect current rights and obligations under the revised data protection laws (and GDPR). Employees who manage data need to know what is required of them to minimise the risk of a data breach or in the event there is a breach, they need to know what to do. The maximum penalty for a breach is the higher of 20 million Euros (or equivalent in sterling) or 4% of the total annual worldwide turnover.
- Modern slavery and human trafficking legislation is also often overlooked. Many organisation will not be required to publish the mandatory modern slavery and human trafficking statement, as the £36m turnover threshold is not triggered. It is however essential that steps are taken to tackle slavery and human trafficking within any business and in its supply chain. Many customers now only want to do business with suppliers who can demonstrate that they are safeguarding against modern slavery. Given the broader commercial considerations, a good starting point is a policy in an employee handbook supported by a statement demonstrating the measures that have been taken.
- Managers are still unsure about family friendly rights. In the absence of clear policy guidance mistakes are frequently made in relation to dependent care leave rights and flexible working applications. The highly publicised and complex shared parental leave regime, which gives employees who are parents a new, more flexible way to take leave in the first year after the birth or the adoption placement of a child are often overlooked in employee handbooks. A misunderstanding about rights and obligations can lead to costly disputes.
- Poorly drafted post-termination restrictions
It is only when a valuable client is lost, an entire team follows their former manager or confidential information is misappropriated, that an employer reaches for the employment contract in search of much needed protection. The discovery is usually that there is little or inadequate protection for the business. An investment in carefully drafted post-termination restrictions and confidentiality provisions that are likely to withstand judicial scrutiny are a powerful weapon when the business is under attack from an ex-employee’s competitive activities. Clauses that deal with garden leave, payments in lieu, the use of social media and intellectual property are also an effective means of protecting the business and should be incorporated in the employment contract.
- A lack of contractual flexibility
A common mistake it to make the employee handbook contractual so that it forms part of the employees’ terms and conditions. This is not a wise decision as there will be a legal obligation to follow rules and procedures, which may not always be convenient. It may also be difficult to make changes in response to business change without employee consultation.
While employee engagement about changes to contractual terms is always preferable due to the legal risks associated with varying contracts unilaterally, an express provision setting out the circumstances where changes may be made will always put the business ahead.
A lack of flexibility in the documentation can make it harder to respond to unexpected events or specific HR and employment issues.
Employers who want to be confident that they are complying with their legal obligations should ensure that their employment documentation is both legally compliant and business relevant.
If you want to know more about our HR and employment law document audit and have more certainty when managing your business, please contact a member of the team at FG solicitors by sending an email to email@example.com or by calling 01604 871143.
A landmark case
For the first time in 100 years the Supreme Court has scrutinised an employee non-competition clause. The focus in the case of Egon Zehnder v Tillman was on how the clause had been drafted and whether it was unreasonable.
What was under the spotlight?
Ms Tillman a long standing member of staff in the recruitment business of Egon Zehnder decided to leave and join a competitor. The employment contract contained a relatively standard post-termination restriction preventing Ms Tillman from working for a competitor for a period of six months. More specifically, she agreed not to “directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company…”
Key considerations for the Supreme Court
The central issue was whether the non-competition clause was unenforceable; Ms Tillman argued that “interested in” prevented her from holding even a minor shareholding in a competitor, which would be an unreasonable restraint.
All post-termination restrictions are treated as void on public policy grounds. An employer must therefore ensure that a covenant goes no further than is reasonably necessary to protect its legitimate business interests; these interests are commonly confidential information and trade secrets, client/customer relationships and the workforce.
There are specific elements of a covenant that will be scrutinised when there is a dispute over the reasonableness of the restriction. Common elements being the duration or geographical scope of the provision. One other key factor often relied upon is whether any words which render the covenant unreasonable can be severed from the restriction to render the rest of the covenant enforceable.
As the lower courts could not agree on whether the clause in Ms Tillman’s contract was reasonable, the Supreme Court was required to intervene and decide whether the words “interested in” rendered the clause completely unenforceable or alternatively, by severing the offending words left Egon Zehnder with the protection of the remainder of the clause.
The Supreme Court considered the clause and concluded that the inclusion of the words “interested in” rendered the clause unenforceable as an unreasonable restraint. It confirmed however that by removing the offending words, Egon Zehnder was left with an enforceable non-competition clause.
The clarity from the Supreme Court should give employers more confidence when it comes to enforcing employee post-termination restrictive covenants. In the future, the courts will be prepared to cut out offending parts of a clause so that what remains becomes reasonable and enforceable.
Employers should not see this case as a green light to introduce wider and more restrictive clauses in the hope that if there is a dispute, the courts will apply a similar approach to the one adopted in this case.
The courts will never excuse poor drafting and will not re-write a clause; severance will only be used if the remaining parts of a clause make sense without adjustment to the overall effect of the restriction. Given this, severance should only be relied upon as a last resort, as it may not provide an absolute solution to restricting the competitive activities of an ex-employee.
The priority for employers
Employers should make properly drafted post-termination restrictions a priority and avoid a one-size fits all approach. To provide greater protection, regular reviews throughout the employment relationship are also important to identify if new restrictions need to be introduced in response to business change and job promotions.
If you want to protect against post-termination competitive activities, please contact a member of the team at FG solicitors by sending an email to firstname.lastname@example.org or by calling 01604 871143.
Riaz Bowmer – Consultant Solicitor at FG Solicitors
25 May 2018 marked a watershed in privacy and information rights with the implementation of the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
Getting privacy right is more than ever a top priority for businesses who will need to continually change to meet the demands of the new laws.
Many people are aware of the new rights the GDPR brings, with increased protection for the public and increased obligations on businesses.
People increasingly want to know how their data is being used, and how it is being safely managed.
Year one of the GDPR has seen people realise the value and potential of their personal data. There is a greater awareness of the law, in particular the data rights of individuals, and a greater awareness of the role of the regulator where rights aren’t being respected.
In year two of the GDPR businesses will need to shift up a gear from their initial focus on baseline compliance to full knowledge and accountability of the risks to individuals in the way they process data and how those risks should be mitigated. Those with primary responsibility for this must be well supported and resourced from the top down with a culture that everyone has some responsibility for data protection.
The push to be ready for the GDPR prompted organisations to make significant changes in quick time. There is still a long way to go to truly embed the GDPR and to fully understand the impact of the new legislation. In an Information Commissioners Office (“ICO”) survey nearly 50% of respondents faced unexpected consequences as a result of the GDPR.
The ICO have said they will continue to focus on the areas identified as their regulatory priorities. These include: cyber security; AI, big data and machine learning; web and cross-device tracking for marketing purposes; children’s privacy; use of surveillance and facial recognition technology; data broking; the use of personal information in political campaigns; and freedom of information compliance.
So, what do businesses need to focus on? Perhaps it should be the adoption of a mind-set that the personal data they control or process is not theirs and it belongs to the data subjects. They must treat the data as something they are taking care of and are responsible for and not something that they own. The data needs to be secure at all times with the right protection in place to ensure only those who should use it or see it can do so.
Some practical matters to look at following initial compliance programmes may include:
1. Policies and procedures
Do your current policies and procedures need amending to ensure an on-going culture of data protection responsibility? These then need to be disseminated to the business, implemented, monitored and enforced.
2. Customer / supplier relationships
Do your contracts with your customers and your suppliers comply with the requirements of the GDPR? These may then need to be amended and brought into effect.
3. Privacy Impact Assessments
Do you understand the circumstances in which you are required to undertake Privacy Impact Assessments and are you set up to carry them out?
4. GDPR training
Do you have a programme for ongoing and periodic staff training? The IOC will want to know about what training has been undertaken if anything does go wrong.
5. Security breaches
Do your staff know what to do if there is a data security breach or if a Data Protection Authority commences any investigation or action?
Data Protection is now an integral part of a business’s operations and compliance should be viewed as a strategic advantage and not a problem that continually has to be managed. For guidance and support contact a member of the FG Solicitors team.
Is quitting a job without giving notice acceptable? No…there are only few occasions where an employee is justified in shouting “I’m off”, grabbing their bag and heading for the exit.
Whether there is a longer notice period in the contract of employment or notice falls within the statutory framework, it is a reasonable expectation that an employee will provide a written resignation confirming the date they intend to leave, which reflects the relevant notice provision.
In some cases, a quick exit may be advantageous for an employer, as it avoids formal action being taken to remove an underperforming or misbehaving employee, or if there is little point in the employee staying on. Often, however, employers are left frustrated when a member of staff leaves without giving notice as their unplanned departure can be disruptive and costly. This scenario unfortunately appears to be happening more frequently. In a marketplace where there is competition for talent and fewer employers are taking up references, departing employees may be prepared to shrug off their responsibilities for new ventures as their actions are unlikely to jeopardise their new employment.
Whilst leaving without giving notice may be a breach of contract, one of the main problems is that an employee cannot be forced back to work. Employees are, however, often unaware they can instead be sued for damages. A claim for damages may be worthwhile if the premature departure has caused financial loss, i.e. when a new starter has to be paid more to secure their appointment. Should there be a significant commercial threat because the new employer is a competitor, or if there is a risk that confidential information could be misused, an injunction may be an option. At this point, a well drafted contract of employment may be invaluable and provide the foundations for taking further action in the courts. The employee could be stopped from working for the duration of their notice period, or even longer if there are valid post-termination restrictions in the contract. Allegations of inducing a breach of contract are also a risk for the new employer.
Contractual documentation should not be underestimated when it comes to reminding employees of the possibilities should they breach their contract. The financial consequences of a breach of their obligations can be highlighted. Benefits could be at risk if there are properly constructed “bad leaver” provisions. Although often thought to be unenforceable, withholding or recoupment provisions in the contract of employment that act to compensate the business if there is a legitimate interest in having the contract performed may be permissible; the amount due cannot be punitive and must be commensurate with the loss suffered.
Until an employee is unwilling to give contractual notice, the full commercial and financial risks to a business may have been ignored. From a risk management perspective, envisaging and planning for such a scenario will help identify what those risks look like. Effective policies and contractual provisions can then be introduced to control the risks. In our experience, employers who have given this some thought are more likely to be make the employee think twice before they head for the exit without a thought for their contractual obligations.
Over 11 million days each year are lost due to work-related stress according to the Health and Safety Executive. The true socioeconomic impact of these lost days each year is probably not fully quantifiable but the scale of the loss must mean the impact is significant. Employers can therefore no longer afford to ignore this problem and focus just on physical well-being.
Unfortunately, the law on stress is not set out in one place and is piecemeal, which means it is often difficult for employers to fully appreciate the scope of their obligations. Duties are set out in various pieces of legislation, including The Health and Safety at Work etc Act 1974, the Working Time Regulations 1998 and the Equality Act 2010. A further dimension is added as employers also have implied duties, including the obligation to provide a safe system of work. Taking these duties as a whole, employers must however ensure that their staff are not exposed to excessive levels of stress when at work.
A nod to these legal duties in terms of working practices may minimise the risk of a legal claim but may not provide the support staff need. In tackling the issue, management needs to address the main contributors to workplace stress such as excessive workloads, long hours, bullying and harassment; all these factors should not be ignored as they have a negative impact on staff retention and engagement, absence levels and productivity.
Given the scale of the problem, employers do need to act. A shift in approach does not need to involve a large amount of time and resources. As a starting point, there are some simple but effective strategies that can be adopted:
- Have clear polices which create a supportive working culture and provide managers with guidance as to how to deal with performance management, bullying and attendance issues.
- Encourage more conversations about stress. Talking will help you to understand the causes and therefore put in place the right support when it is most needed.
While these simple steps may provide a solution today, employers will also need to gear up and look to the future.
Management research and HR studies are identifying that changing demographics mean employers will need to consider new ways of supporting staff by being more aware of their needs and wishes to create the winning workplace. One thing is clear, employees want to ensure that they have both the mental and physical wellbeing to work for as long as possible in the most productive and efficient way. To attract and retain the best talent, ways of providing the right workplace culture to support employees in fulfilling these aspirations will need to be at the top of the HR agenda.
In line with these findings, the government wants to encourage more discussions about disability and health conditions in the workplace. The introduction of a framework for reporting on disability, mental health and wellbeing for larger employers although voluntary is one step in that direction.
If work related stress is the growing epidemic that the level of lost hours is indicating, then employers need to act now.