Category Archives: Contractual

Staff Handbook: Handy or a Hindrance?

staff-handbookSUMMARY: Employer’s bid to change its staff handbook is rejected by the Court of Appeal… Read on to stop this happening in your organisation.

Staff Handbooks are a great way of telling staff what you expect from them at work and how they will be treated in return. A constantly evolving handbook with inherent flexibility to adapt to organisational change can be a very effective people management tool.

To ensure there are no limitations on an employer’s ability to make changes, the handbook should be a guidance document, which does not form part of the contract of employment.

In a recent dispute about a change to an absence management process the Court of Appeal confirmed that the employer could not unilaterally implement a change to that process even though it was contained in the handbook. The relevant process was contained in the part of the handbook which was stated to have contractual effect and therefore the employees’ consent was necessary.

The following are some simple do’s and don’ts to avoid this problem happening:

DO check whether your existing staff handbook is contractual or non-contractual.  Sometimes a handbook will state that part of it is contractual and part of it is non-contractual.  It is easier to amend a handbook (or parts of it) that are non-contractual than those that are contractual. If the contractual status of the handbook is unclear, consider seeking legal advice.

DON’T amend your handbook if it is (or parts of it are) contractual without consulting with staff to reach agreement. There may be an obligation to enter into a more formal consultation process if more than 20 employees are affected and/or there is a recognised trade union. If you are unsure about your consultation obligations, consider seeking legal advice.

DO consider putting in place a completely non-contractual handbook if you do not already have one.  This would avoid the worry of having to consult with staff every time a change is made; notification to staff would suffice.  Staff would still be bound by the policies in a non-contractual handbook because they have a duty to obey lawful orders.

DON’T forget to review contracts of employment at the same time as a contractual staff handbook, especially if you are looking to remove the contractual parts of the handbook; if some elements need to remain contractual relocate them to the contract.

Get your staff handbook right and it will definitely be handy rather than a hindrance.

Case

Department for Transport v Sparks and others [2016] EWCA Civ 360

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce 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.

Misconduct & Punishment in Employment

Punishment at workSummary: Disagreement between employer and employee is as old as the very concept of Master and Servant itself. As a general rule, where disagreement ends with an employer forming the view that an ending of the relationship is the outcome it desires, there are some mandatory steps that will need to be addressed.

An employer seeking to dismiss an employee will generally have to consider 2 key areas of law:

  1. the first answers the question, what if anything is owed to the employee as a result of the ending of the employment? – the contractual question;
  2. the second, is the dismissal fair in all the circumstances? – the protection afforded to the employee by Parliament; the statutory question.

The first question is arguably the one to answer. Consider the case of an employer wishing to terminate the employment of an employee for misconduct who has a contract entitling them to 6 months’ notice. Except for where the misconduct is of such an extreme nature that it amounts to gross misconduct, ending the employment without payment is likely to give rise to a successful breach of contract claim.

In a recent case, the High Court decided that an employee who sent a pornographic e-mail from a work account had committed an act which entitled his employer to dismiss him without paying him the 12 months’ notice to which he was entitled. This was in spite of the fact that the sending of the e-mail was discovered some 5 years after it had been sent and only as part of a fishing exercise conducted by the employer, specifically to find a reason to dismiss.

It is extremely important that an employer intending to dismiss in these circumstances does not, after discovery of the conduct, behave in a way that would lead to a view that it had waived its right to dismiss in these circumstances.

By contrast, whether or not the dismissal was fair, in all the circumstances, would largely depend on the procedure leading up to the decision to dismiss. In short, did the employer have a reasonable belief in the guilt of the employee based on the employer having undertaken a reasonable investigation? Finally, whether the decision to dismiss in those circumstances, as opposed to applying some other sanction, was reasonable.

Tackling the risk of a successful unfair dismissal claim is a juggling act requiring an employer to engage in a fair procedure free from bias, permitting the employee an opportunity to properly understand the allegations, to address them and to be accompanied if requested.

Having managed all of that, dismissing the employee as a result of the allegations must, on an objective view, be action that a reasonable employer would take. Applying this thinking to the case mentioned above, while the age of the offence might not matter, particularly if the employer had no knowledge of it, the decision to go on a fishing expedition to find misconduct that would allow an employer to dismiss for gross misconduct and in so doing avoid the obligation to pay notice, may very well be considered unfair. This is so even if in so doing the employer would not be in breach of contract.

Other considerations:

  • Ensure that if contemplating dismissing for gross misconduct, and your policies define types of conduct that you consider fall within that category, the current offence does not fall outside it. In a recently decided case where a tribunal found the dismissal of an employee to be unfair, one of the factors that influenced the finding that the dismissal was unfair was the fact that the employer’s policy stated that the offence which the employee was facing would be dealt with by a maximum sanction of a written warning.
  • Ensure that you follow your own laid down procedures.
  • Ensure your investigation is thorough, including follow up investigations.
  • Ensure the process is well documented including witness evidence and statements.
  • Wherever possible, ensure that each level of the process is chaired by someone different.
  • Permit an appeal.

Above all, obtain proper advice and support.

Contact Details

For more details 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 4th Day of Christmas…

4th Day of ChristmasOn the 4th day of Christmas my employee said to me… “I can’t get to work because of the snow.”

Although unseasonably mild now, chances are some parts of the country will experience travel disruption due to snow over the coming months and operational efficiency may be significantly affected if staff cannot get to work.

Proactive employers should develop a strategy for responding to this possibility which should include the following key considerations:

  • Health and safety

Health and safety may be called into question where employees indicate that it is too dangerous to travel but are required to continue with their journey and, as such, should not be ignored. Employers need to be aware that employees are protected from detrimental treatment and dismissal for raising concerns on health and safety grounds; raising such concerns could also trigger protection under the whistleblowing legislation.

  • Pay

Usually if an employee is unable to get to work there is no automatic right to be paid. However, before deciding this, existing contractual, collective or custom and practice arrangements already in place need to be considered to establish what rights employees have in relation to pay in such circumstances. Equally, if employees have to be sent home as it is not practicable or safe for the business to remain open, those employees with contractually guaranteed hours or salary will still have the right to be paid unless the contract provides otherwise.

Employers should always check for appropriate clauses in contracts before deducting pay for non-attendance.

  • Flexibility

Taking a flexible approach to working hours and the place of work may be a possible solution for some employers, examples of possible approaches include:

  • homeworking;
  • allowing employees to work at another site, which is more easily accessible;
  • allowing staff to make up the missed hours;
  • treating the time as annual leave; or
  • offering time-limited paid leave.

This approach will however need careful planning and communication to avoid future pitfalls.

Whatever your business strategy, planning ahead will be key to minimising business disruption and at this stage it may be useful to involve employees in the process as they too could provide valid solutions to the problem.

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.