Category Archives: Statutory right

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.

On the 5th Day of Christmas…

5th Day of ChristmasOn the 5th day of Christmas my employee said to me… “My childcare arrangements for the Christmas holiday period have just fallen through.”

An acceptable solution to help the employee, particularly if time needs to be taken off at short notice, may be readily identifiable.  If this is not possible, the employee may have to rely on the statutory dependent care leave regime to take time off.  The right would be triggered where the breakdown in child care arrangements was unforeseen and is an emergency.

Unless the contract of employment provides otherwise, the right to such leave is unpaid.

The employee is unlikely to be able to use dependent care leave to cover the entire school holiday period.  The right is to a reasonable amount of time off – normally a day or two is anticipated to allow the employee to sort out the emergency and make alternative arrangements.  Each case is likely to be different and needs to be considered on its own set of facts. In considering what is reasonable and necessary the following is relevant:

  • the nature of the emergency;
  • the relationship between the dependent and the employee;
  • the extent to which the employee can call upon someone else for help or make alternative arrangements; and
  • the length of time the employee had to explore alternative arrangements –  the longer the time the employee had to explore alternative arrangements, the less likely it would be necessary to have time off.

The operational needs of the business and any disruption caused are irrelevant considerations for an employer when determining if leave should be permitted.

To request this type of leave the employee is required to:

  • tell the employer as soon as possible the reason for the absence;
  • indicate how long they expect to be absent; and
  • provide sufficient information to establish the right to take dependent care leave.

To enable employees to understand the parameters of this statutory right, and to ensure that any request for this type of leave is dealt with fairly and consistently, employers are advised to have a clearly communicated policy. As a minimum this policy should address the following:

  • when an employee may take unpaid time off to care for their dependants, who may not always be children;
  • the process for requesting the leave;
  • details of the evidence required to support the request;
  • any sanctions for abusing the policy; and
  • details of the other rights available including  unpaid parental leave, annual leave or flexible working arrangements.

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.

On The 3rd Day of Christmas…

3rd Day of ChristmasOn the 3rd day of Christmas, my employee said to me… “I need to leave early tonight to go and watch my child’s nativity play.”

The following factors should be considered by an employer before deciding whether to refuse a request to allow an employee to leave work early to witness their child’s BAFTA performance:

  • The employee has no automatic right to leave early in these circumstances unless the contract of employment provides for this; and special care and attention should be given to those contracts which include flexi-time or time off in lieu arrangements. Otherwise, the employee is likely to have to rely on the employer’s goodwill, a special leave policy or take annual leave, with the latter being the most likely option.
  • Employees have a statutory right to annual leave and may ask to take the leave as holiday.
  • If an employer operates a “leave policy” (in the contract of employment or staff handbook) requests not made in accordance with the policy can be more readily rejected. For last minute leave requests, the most obvious reason for rejecting it is that the employee has given insufficient notice.
  • If the request is rejected, it is prudent for a number of reasons and not least from a staff morale perspective, to provide the employee with an explanation.
  • Employees may take sick leave if the request is refused. Therefore an essential tool in managing this scenario is a publicised absence management procedure, which includes reporting requirements and back to work interviews.

The employer may however exercise their discretion and agree to the request. In this instance an employer should be mindful that all such similar requests should be dealt with fairly, consistently and in a non-discriminatory way. It is also advisable that, by exercising a discretion, it is made clear to the employee that it is not intended to create any future rights. The employee should also be notified and agreement obtained if one of the following is proposed:

  1. the leave is to be unpaid;
  2. the annual leave entitlement is to be adjusted to reflect the time taken; or
  3. the time will need to be made up.

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.

Can I bring a friend?

16229690_m - CopySUMMARY: Employers are increasingly expected to be flexible when allowing employees/workers to be accompanied.

The right to be accompanied at a disciplinary hearing

Given the recent decision of the High Court (Stevens v University of Birmingham) which indicated that an employee should have been permitted to have a professional representative present at an investigation hearing and changes to the ACAS Code of Practice on Disciplinary and Grievance Procedures and the non-statutory guidance, employers are often left bewildered as to who the employee/worker should be permitted to bring with them to a disciplinary hearing.

The statutory right to be accompanied applies where the employee/worker is invited to attend a disciplinary hearing.  Disciplinary hearings for the purpose of this right are those hearings that could result in:

  • a formal warning being issued;
  • the taking of some other disciplinary action.  For example, suspension without pay, demotion or dismissal; or
  • the confirmation of a warning or some other disciplinary action.  For example, an appeal hearing.

The right applies to capability as well as misconduct hearings.  It does not apply to investigatory meetings.

Choice of companion

The following is a summary of who can be a companion:

1. An individual employed by the trade union of which they are an official

The employee/worker does not have to be a member of the trade union to which the official belongs.

2. Any other official of a trade union

See immediately above.  This person has to be certified by the trade union as having the experience/training to act as the companion.

3. A work colleague

  • The work colleague will have the right to paid time off during working hours.
  • The work colleague must not be subject to any detriment or dismissed because they have acted as a companion.
  • The choice of the work colleague does not have to reasonable – the employee/worker can choose whoever they wish.  It used to be thought that if the work colleague was at a remote geographical location, an employer could veto the employee’s/worker’s choice, but this is no longer the case.

4. A person to support the employee in difficult circumstances

These difficult circumstances are limited and are likely to include:

  • a companion who can translate where English is not the employee’s/worker’s first language; and
  • a companion to assist where the employee/worker has a disability or has mental health issues.

5. A lawyer

There is no general right to bring a lawyer to a disciplinary hearing.  There may however be:

  • a right under the contract of employment; or
  • a right as a result of the Human Rights Act 1998 where the outcome of the disciplinary proceedings would have a “substantial influence” on a decision of a regulatory body (or similar) that could bar someone from their profession.  For example, the medical, legal or accountancy profession.

6. Any person specifically identified in a policy/procedure/contract of employment

Employers should always check to establish whether their own policies/procedures/contracts of employment provide for different types of companion.  For example: a family member, a legal representative or a friend.

A flexible approach

Employers should also note that an employee has a statutory right to ask for a meeting to be rescheduled if necessary in order for his or her chosen companion to attend as long as the alternative date suggested is within five working days of that proposed by the employer.

Employers are increasingly being called upon to permit employees and workers to bring along individuals who do not fall within the traditional companion category.  Whilst employers can reject an employee’s/worker’s choice of companion in some cases, employers should be aware that tribunals appear to be expecting employers to take an increasingly flexible approach to the persons permitted as companions.

Employers should take advice if they are unsure as to whether they should permit the person an employee/worker has asked to be accompanied by and should ensure their own policies are clear on this point.

Cases

Stevens v University of Birmingham [2015] EWHC 2300

Contact details

For more details about permitted companions for employees/workers at meetings please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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