FAQs

Employers often believe that all communications with HR Advisers are confidential and do not have to be disclosed. This is not the case and this is a major drawback of using an HR Advisor or Consultant rather than a solicitor. HR consultants are not able to claim “legal privilege” as they are not solicitors. It is now very common for an employee to make a Subject Access Request (GDPR) from their employer.

In this request an employee is entitled to see any emails or other documents which contain their personal data. This would include advice provided by an HR Consultant.

This can be extremely problematic for an employer as very often your discussions with HR are the last thing that you would want an employee to see.

There are a number of different types of individuals and entities offering HR advice to employers. These include; individual HR consultants, HR Consultancy companies and Solicitors.

HR is complicated and to do it properly requires a detailed knowledge of employment law. Successful employee cases in the Employment Tribunal often comes off the back of unwise HR decisions.

There is no distinction between legal and non legal work when it comes to HR. Every aspect of HR is employment law.

Any workplace issue such as a grievance, sickness issue, disciplinary etc is always governed by employment law and there are many areas where it can go wrong. Using an employment lawyer reduces these risks.

Dealing with HR issues causes a significant drain on management time. Using an employment lawyer reduces risk and frees up time.

One of the little known benefits of using a solicitor is that all of your communications with us are confidential as they are covered by “legal privilege”. This is not the case with HR advisers and HR Consultancies.

Employers often believe that all communications with HR Advisers are confidential and do not have to be disclosed. This is not the case and this is a major drawback of using an HR Advisor or Consultant rather than a solicitor. HR consultants are not able to claim “legal privilege” as they are not solicitors. It is now very common for an employee to make a Subject Access Request (GDPR) from their employer.

In this request an employee is entitled to see any emails or other documents which contain their personal data. This would include advice provided by an HR Consultant.

This can be extremely problematic for an employer as very often your discussions with HR are the last thing that you would want an employee to see

More often than ever employees are raising Subject Access Requests in which they can request all data containing their personal information. Access to your discussions with your HR advisers is often not something you would want your employee to see.

Workplace bullying is a deeply toxic and damaging issue within any organisation.

The way that you deal with workplace bullying is to ensure that the organisation has a culture which seeks to prevent any form of bullying. This is achieved through things like policies, training and awareness of mental health.

Despite the best will in the world any organisation can face these types of issues. It is the nature of people that these kinds of behaviour manifest from time to time.

As an employer its important to create a culture in which individuals feel comfortable raising concerns and that they will be listened to.

Very often an issue is first raised with the employer in the form of a workplace grievance against another member of staff. However, it can also arise out of a number of scenarios such as a disciplinary case or ill health issues.

The key ingredient is to ensure that the complaint is captured and dealt with. Generally this involves commencing an investigation to ascertain the facts. This can involve interviewing witnesses and obtaining documents. A meeting should be held with the complainant to sensitively gain as much information as possible.

Careful consideration should be given to suspending the accused employee if necessary to protect the complainant. However, suspension should always be proportionate and carried out as a “neutral act” i.e. without guilt having already been decided.

The outcome of a workplace bullying investigation can have a number of outcomes. These include:-

1. Disciplinary action against the perpetrator.
2. Mediation.
3. No case to answer.

After any workplace bullying issue it is always good practice to look ahead and find ways to avoid similar issues happening in the future.

Unfair Dismissal awards at the Employment Tribunals consist of two elements; the basic award and the compensatory award.

The basic award is based on length of service, age and wage. It is calculated in the same way as a redundancy payment. The current maximum basic award is £19,290.00.

The compensatory award is a loss of earnings claim based upon how long it takes you to find another job. It is subject to a cap of 12 months earnings up to a maximum of £105,707 (increased from £98,878 in 2023).

The Claimant has to “mitigate their loss” which means actively trying to find another job. In the Employment Tribunal a Claimant would have to demonstrate what they have done to find another job.

If the Claimant found another job immediately after being dismissed they would not have any financial losses.

You’re a whistle-blower if you’re a worker and you report certain types of wrongdoing. This will usually be something you’ve seen at work – though not always. The wrongdoing you disclose must be in the public interest. This means it must affect others, for example the general public.

Employers often think that whistleblowing sits at a very high level involving things like corruption. This is not the case and whistleblowing relates to the breach of any legal duty. It can therefore stem from more ordinary and everyday complaints. For example an employee who is concerned about tripping hazards in the shop where they work could be seen as a whistle-blower.

This can be problematic for employers who often neglect to understand that the whistle is being blown. This can then lead to dangerous and costly complaints in the employment tribunal.

When an employee blows the whistle it is necessary to deal with the issue in a very similar way to how you would approach a workplace grievance. You need to meet with the employee, obtain documents, speak to witnesses and investigate fully. If you don’t do these things you risk significant breaches of employment rights.

The outcome of a whistleblowing procedure may be that there is no case to answer or it could lead to some further action such as recommendations, potential disciplinary action or some other steps.

You have to treat all whistleblowing issues carefully. Even if the employee is wrong about the alleged breach of a legal duty they still have legal protection as a whistle-blower.

In practice this means that they should not be unfairly treated as a result of blowing the whistle. So long as an employee has an outstanding whistleblowing disclosure you need to make sure that nothing you do could look like a detriment. This could include things like poor performance sanctions.

You need to be even more careful if you dismiss an employee who has made a whistleblowing case. If the employee is able to show that the dismissal was linked to the disclosure they can bring a claim for automatic unfair dismissal. This is a particularly dangerous claim for an employer as there is no cap on damages and an employee does not need two years’ service.

Any employee who has over two years’ service has the right not to be unfairly dismissed.

This means that if any dismissal of an employee, who has more than two years’ service, must be for one of five statutory reasons;

1. Conduct
2. Capability

III. Redundancy

1. Statutory reason
2. Some Other Substantial Reason

If the employee does not have two years’ service you do not have to base a dismissal on one of the above statutory reasons. You can dismiss the employee as long as you do so in accordance with the terms of the contract of employment without risk of an unfair dismissal. However, there are other types of claims which an employee could bring such as discrimination, whistleblowing etc.

If we are dealing with an employee who does have two years’ service in order to have a fair dismissal you need to have two elements; a fair reason for dismissal (one of the above statutory reasons) and a fair process.

Using an example. An employee has been employed for three years and you are concerned that they have bullied another member of staff. In this case you would have to undertake an investigation to establish the facts. This would involved keeping an open mind and obtaining documents, speaking with witnesses etc. After this you may decide that there is a case to answer and so you would convene a disciplinary hearing and allow the individual to have a representative present.

As an employer you would then have to think of an appropriate sanction. If you decide to fire the employee in question, they may subsequently bring an unfair dismissal claim.

You would have to demonstrate that there was an issue with conduct (i.e. bullying) and that you undertook a fair process. If these elements are not present you would face a finding of unfair dismissal.

There is a significant amount that can go wrong for an employer during a dismissal process and it its important to get the correct approach.

It is only employees with over two years’ service who have the right to a redundancy payment.

When an employee has more than two years’ service if you feel that their role is redundant you must go through a very regulated process.

The two elements to making somebody redundant are

1. There must be a genuine redundancy situation
2. You must go through a fair process.

Whether there is a genuine redundancy situation will depend upon the specific facts. The test if particularly complex and legal advice is extremely important in any redundancy situation.

The process itself is very much concerned with consultation. An employer needs to demonstrate that they have kept an open mind about making who is made redundant at the start of the process. Who leaves the business by way of redundancy should never be a foregone conclusion.

The process broadly involves: –

1. Informing staff that there is a risk of redundancy.
2. Deciding upon which individuals are any risk of redundancy.
3. Meeting with staff individually to consult with them about the redundancy situation and any possibly alternatives.
4. An employer must then develop “selection criteria” to decide who remains within the business.

Selection criteria is a way of deciding who will be made redundant. The criteria must be fair, objective and non-discriminatory. What specific selection criteria you use will depend upon the specifics of the business.

Once you have applied the selection criteria each employee will have a specific score. Based upon this score you will then decide who will be made redundant.

An employee who has been made redundant will have the right of appeal.

If an employee believes that there was no genuine redundancy and or the process was flawed they will likely bring a claim of unfair dismissal.

As an Employer you must be so careful about what you say. This is because conversations, emails etc can be used in an employment tribunal.

This can make it hard to have difficult conversations with staff.

An off the record chat means that in certain circumstances an employer can have an open conversation with an employee. This is a good thing to be able to do.

For example if you were an employer dealing with employee poor performance. Rather than having to go down the route of a capability process you could have an off the record chat with the employee and explore whether they would prefer to leave the organisation.

Having this type of conversation would be inconsistent with a fair capability process as the employer should not make their mind up at the start of a process.

So, the law allows you to have an off the record chat. However, you must be extremely careful.

It is not enough simply to pull an employee to one side and say that you want an off the record chat. The law says that there needs to be an “existing dispute” what this means is an issue which requires settling. So essentially you cannot do it out of the blue.

So, in the example of a capability situation you would want to ensure that the process has started.

You should also use the words “without prejudice” but can then go on to explain that this means “off the record”.

There is another way of having an off the record chat which doesn’t require an existing dispute. This is commonly called a “Section 111A” conversations. You would need to say that you would like to have a without prejudice conversation under Section 111A. This approach can be quite dangerous as if an employee can show that there is any “improper” conduct on behalf of the employer that the off the record protection goes away.

A Settlement Agreement (sometimes called Compromise Agreement) is an agreement between an employee and an employer regarding the termination of employment.

It will contain essential terms such as; date of termination, outstanding holidays, notice and any compensatory payments.

They are used in several circumstances but essentially happen when the employee and employer agree that employment will come to an end without having to go through a process.

Settlement Agreements often come off the back of workplace processes such as; redundancy, disciplinary, grievance, capability.

Mostly it is the employer who suggests the possibility of a Settlement Agreement to an employee. However, they can also be requested by an Employee.

Employers cannot “out of the blue” offer a Settlement Agreement proposal to an employee. If you wish to raise the option of a Settlement Agreement with an employee, you need to ensure that any communications are genuinely off the record.

In order to do this, there needs to be an “existing dispute”. This means that there needs to be some type of process which has started. Using the example of a redundancy situation, you would need to have already warned employees about the redundancy before having a conversation.

You have to make sure that all communications are marked “without prejudice”. You also have to use this wording before speaking with the employee on an off the record basis.

In the case of a redundancy situation, it is common for a Settlement Agreement to contain a “compensatory payment”. This is an amount which can be paid tax free (up to 30k) to the employee as compensation for loss of office. Say for example an employee was entitled to £5000 as a redundancy payment, the employer may offer £6000 through a Settlement Agreement. If an employee understands that they do not want to go through a redundancy process this may be enticing.

The benefit for the employer is that they don’t have to go through the redundancy process with the individual with all the risks that it carries.

An employer has to provide an employee who has been employed for longer than one month a written statement of employment particulars. This must be provided within two months of starting work.

The statement must include the following details:

1. the employer’s name
2. the employee’s or worker’s name, job title or a description of work and start date
3. how much and how often an employee or worker will get paid
4. hours and days of work and if and how they may vary (also if employees or workers will have to work on Sundays, during the ‘night period’ or take overtime)
5. holiday entitlement (and if that includes public holidays)
6. where an employee or worker will be working and whether they might have to relocate
7. if an employee or worker works in different places, where these will be and what the employer’s address is
8. how long a job is expected to last (and what the end date is if it’s a fixed-term contract)
9. how long any probation period is and what its conditions are
10. any other benefits (for example, childcare vouchers and lunch)
11. obligatory training, whether this is paid for by the employer

Depending upon the job role you may decide that you need to include additional terms.

How much sickness absence is too much will depend upon the individual circumstances.

There is no set rule for when sickness becomes a problem. Some employers have certain trigger points to identify when sickness becomes an issue. The Bradford factor is frequently used and provides a result based on the frequency and length of an employee’s absence during a defined period, usually 52 weeks.

Keeping careful records is very important. Make sure that you keep a record of all absences so that you have very clear evidence. Also, return to work meetings should be undertaken as a matter of practice. They don’t need to be long meetings and are about recording the nature of the absence and whether it is likely to recur. In practice they also discourage individuals from being dishonest about sick leave.

If you reach the point where the sickness absence is a becoming a problem, you may consider undertaking a process.

If you are considering dismissing an employee because of their sickness record much will depend upon whether they have more than two years’ service. It is only when an employee has more than two years’ service that they have unfair dismissal rights.

In practice, this means that in the case of an employee with more than two years’ service you must go through a capability process before making a dismissal. If you don’t do this any dismissal will be unfair.

If the employee has less than two years’ service you could dismiss them without a risk of an unfair dismissal claim. However, caution should still be applied as the individual, with less than two years’ service, could still have rights to bring other types of claims such as discrimination, whistleblowing.

Issues with disability discrimination would only arise if the employee met the definition of a disabled within the Equality Act. An employee who is going through a stressful period in their life may not be considered disabled. However, an individual who has been suffering with stress and depression for more than 12 months and who receives treatment may be. The important thing is that each case is different.

A capability process is essentially a procedure which the employer may decide to use when sickness starts to be as a problem.

If you have to dismiss an employee who has a poor sickness record to avoid an unfair dismissal claim you would have to show that you have acted reasonably and been through a fair process. {SEE UNFAIR DISMISSAL}

There is an important difference between somebody who may be suffering with a period of stress in their life and an employee who has a long-standing mental health problem.

If an employee can show that they have mental health problem which “substantially affects” their “ability to carry out day to day activities”. This would mean that they are classed as disabled.

Disability is a protected characteristic and consequently any employer needs to ensure that the individual does not suffer discrimination. If the employee would not be classed as disabled, then there is no duty to make reasonable adjustments. Clearly though working sensitively to understand concerns and offer support is important.

Example:

A worker informs their employer that they are struggling with their mental health. The employee feels that working from home would help them.

The employer does not necessarily have to agree to this request but it needs to be carefully considered.

If it is identified that the employee suffers from a disability (WHAT IS A DISABILTY) then you would have to consider whether their request is a “reasonable adjustment”. In order to do this you would have to consider the extent to which the employee working from home would affect the business.

This would entirely depend upon the individual requirements of the business. It may be an unreasonable adjustment if there are clear reasons why the role cannot be undertaken at home. You would need to go through these reasons with the employee. In some instances, the employee may raise the request as a flexible working request in which case you must follow a more set procedure (WHAT IS A FLEXIBLE WORKING REQUEST)

It becomes problematic for an employer when an employee with mental health problems is not performing at work. Employers often feel reluctant to act about the poor performance due to sensitivities regarding the issues which the employee is facing. However, performance issues can and should still be addressed, the key is how you manage them.

An employer’s obligation is to make “reasonable” adjustments. That does not mean that an employer has to agree to any adjustment. In particular, an employer does not have to accept poor performance because an employer has mental health problems however, they must ensure that they deal with the issues fairly.

If it gets to the stage where an employer can no longer support the individual, then it may be necessary to commence a capability procedure. This may be because the employee is making mistakes or has a poor sickness record. If ultimately the employee is dismissed you would need to ensure that a fair procedure is followed {WHAT IS UNFAIR DISMISSAL}.

In cases in which an employee does not suffer from a disability and has less than two year’s service you may consider dismissing the individual. This is because you do not have the right to bring an unfair dismissal claim if you have less than two years’ service {CAN I DISMISS AN EMPLOYEE WITH UNDER 2 YEARS SERVICE}. Also, if the employee is not classed as disabled they would not be able to bring a discrimination claim.

The consideration of what is reasonable will depend upon the particular circumstances.