Free Guidance
We are Plymouth's Employment Law Experts. Please see our free guidance below:
Bullying and Harassment
Whether you are an employer facing a grievance or an employee finding your working life intolerable, bullying can be a major headache.
When we come to work most of us just want to do a good job. The more conscientious we are, the more sensitive we are to criticism. Many allegations of bullying seem quite minor in themselves – not being included, being overloaded, being criticised unfairly, and so forth – but all these things build up to become demoralising, then upsetting, and then finally it all becomes too much and can lead to being off sick with stress.
Once this situation has developed it is often very difficult to change, and all too often it ends with a resignation and a claim for constructive dismissal, or the employee is dismissed because of the long-term absence from work. From the employer’s point of view, all this is unhealthy, time-consuming and bad for business.
The first step for an employee is to raise a grievance, which is normally done by writing a letter to HR or the appropriate manager. This can be a daunting step in itself. If it does not make things any better, the employee may feel they have no alternative to resigning. If the bullying has been serious, and the employee resigned promptly in response, they could have a claim for constructive dismissal.
There is also useful free guidance available from ACAS in their guide for employees on bullying and harassment and their guide for managers and employers for stress related absence, additional help is available from ACAS, and the HSE, who have a guide to stress.
Discrimination
At its heart, discrimination law is about making sure that employees are treated fairly.
Blatant forms of discrimination are largely a thing of the past, and so claims of discrimination are now almost always about subconscious attitudes, or the unintended effect of particular working practices.
An obvious example is a claim for sexual harassment. This does not have to involve allegations of stalking or overtly sexist remarks – it could be a much more ordinary situation, like a mother returning from maternity leave part-time and being overloaded with work because her manager is not really happy with the arrangement.
Or it may be that a company prefers to recruit young women for its sales team, rather than a middle-aged man, and so is guilty of discrimination on grounds of age and sex. Examples of claims for discrimination are endless.
Many of us, whether we like it or not, tend to recruit in our own image; we tend to think that the ideal person to work in my team is someone just like me – and that brings with it assumptions about age, sex, race, sexual orientation and so on. In an extreme case it can show itself in a preference for someone who went to the same school.
Discrimination law is a large field, which has been ploughed many times over the last ten years. For general guidance, ACAS produce this useful guide and there is a good deal of advice on the BIS website on how to prevent discrimination.
But if you have a particular situation to deal with, there is really no substitute for face to face advice.
Tribunals
Nearly all employment cases - including all unfair dismissal and discrimination cases - are decided in employment tribunals.
If you are involved in one, the case will usually be decided in the tribunal nearest the workplace. The main one locally is in Exeter but occasionally hearings are held in Plymouth, Taunton, Truro or Liskeard.
The panel consists of three people. The chair of the panel is a solicitor or barrister of at least five years’ standing. This is the Employment Judge. As well as the Judge, there are two lay members. One of them has background from the employer / personnel side of industry, and one of them has background from the employee / trade union side of industry. They are all, of course, required to be neutral, but this arrangement helps to ensure balance.
An employment tribunal is like a court, but it is a little less formal. Everyone sits down at tables, with some rows of chairs at the back. The tribunal panel sits on a slightly raised platform and there are no wigs and gowns. Nevertheless, an employment tribunal has some formal procedures. Witnesses must take the oath or promise to tell the truth. There are formal rules about the order of events and who can speak.
The original intention was that employment tribunals – or industrial tribunals as they then were – would be informal hearings, at which a disgruntled employee could have his complaint heard without fuss or formality, and certainly without lawyers. For that reason, legal costs could only be recovered in the rarest of cases, and this is still true today. But with every passing year the amount of employment legislation has grown, and now it is very difficult for an individual to present his or her case at a hearing, particularly when it comes to cross-examining their former boss. The widespread use of lawyers at employment tribunals reflects this degree of complexity, and shows that it is generally cost-effective for both parties to get legal help.
Families and Pregnancy
A number of family-friendly initiatives were introduced by the Labour government from the late 1990s onwards, and which are now well-established - rights to paternity leave, parental leave (for mothers and fathers), emergency dependents' leave and adoption leave, together with regular increases to maternity leave and pay.
In this area, there is plenty of government guidance setting out the most recent rules and rates of pay in each area. It is worth bearing in mind though that the right to leave and the right to pay in each case are quite separate. Maternity is an obvious example. The right to maternity leave and the right to maternity pay are in different pieces of legislation, so although maternity leave divides into six months “ordinary maternity leave” and six months “additional maternity leave,” the right to statutory maternity pay runs out after 39 weeks (9 months).
The latest figures and rules on entitlement can be found here – Direct.Gov guidance on work and families.
There are also a number of other issues to be aware of with pregnant staff, such as the need to carry out a risk assessment, for which further guidance is available here: HSE guidance for new and expectant mothers.
Redundancy
Few firms have been unaffected by redundancies in the last few years. For managers trained when the emphasis was all on retaining and motivating people, this has been a massive culture shock.
Where a whole business or department is closing down, it may be obvious where the axe has to fall, but often it is a case of selecting a number of staff from a group. This has to be done as carefully and scientifically as possible to avoid a finding of unfair dismissal. As a minimum, we recommend that the process will last a couple of weeks which is a testing period for managers and staff alike. First the bad news has to be broken to those who are at risk and the selection process explained. Individual consultation meetings follow, to consider any suggestions for avoiding redundancies, such as going part-time, job-sharing or taking pay cuts. If this does not do the trick – and it rarely does – then a selection exercise has to be carried out, scoring those involved against the criteria that seem most important to the employer. Those provisionally selected will then need the chance to see and comment on their scores at a further meeting, and of course a right of appeal. Where more than 20 staff may be dismissed, more extensive group consultation rules apply.
If you are embarking on this process in the near future, there is some general guidance is available here:
EHRC Booklet: A short guide to managing the downturn and preparing for recovery.
It may well be sensible to take face to face advice on the appropriate procedure for your situation. This is one of the most difficult and demanding HR procedures to carry out correctly, with severe penalties if it is mishandled.
Flexible Working
Flexible working has proved to be enormously popular; not just with new mothers returning from maternity leave but with young parents generally. In an age where often both parents work, maintaining a work/life balance has become a major concern.
From the employee’s point of view, a four-day week or mornings-only routine has much to recommend it. For employers on the other hand, it is a mixed bag. On the plus side, it is very good for retention. Staff with a really suitable arrangement like this are unlikely to be moving elsewhere. But on the down-side, the rent has to be paid five days a week, not just mornings; and the heating and lighting will be on, machinery running, desks and computers sitting idle, while the employee is at home. It all seems rather inefficient.
The Flexible Working Regulations set out a procedure for resolving these tensions. The main elements are that the employee sets out a written request for reduced hours – most employers have a standard form, and the employee should include details of how the new system would work in practice from the business’s point of view – a meeting is held, the proposal is either accepted or rejected, and there is a right of appeal. If the request is refused, the employer has to do so on one or more of eight statutory grounds, which include the burden of additional costs, or the impact on quality or performance.
A refusal can be risky, especially for a mother returning to work after maternity leave. If the company insists on the old full-time hours, this may be met with a resignation, and if the company cannot justify its refusal, it will amount to sex discrimination and unfair dismissal.
All too often, however, requests for flexible working are very inflexible requests for particular reduced hours, and a company can justify its stance by offering some flexibility. It may, for example, not be practical to have someone go home at 2.30 pm if that would leave no one on reception. It may be difficult to recruit someone for the rest of the day. But the company could consider a job-share arrangement, mornings and afternoons, or perhaps a three-day week instead
Following the procedure is straightforward, and there is plenty of useful guidance available, e.g. The BIS: Guide to flexible working and work-life balance.
The negotiations, however, call for some give and take on both sides, and you may need help deciding where to draw the line; i.e. what might be justifiable in an employment tribunal.
Get in touch to discuss how we can help you by calling 01752 663295.