Richard Wyatt Haines Post Event Thoughts

Confidence boosting! That is the way to describe the outcome of focus on employment law in the February event.

So often, executives in the sector are unsure of what to they can and cannot do as they strive to lift the performance of their employees and achieve their goals. However, as a result of our session, every delegate is much more confident about:

• What they should be doing
• What they should avoid
• How they can protect themselves, and
• How they need to develop the skills of their managers.

Why did we achieve so much? Quite simply, it was because of the very clear and insightful input of Simon Sanger-Anderson from Tozers solicitors and the novel use of actors to bring the whole topic alive. We saw our restaurant manager Philippe and his relationship with Gwen evolve over the passage of time and eventually implode. Every step of their tumultuous journey was instructive, both because of the issues uncovered but also because of the proximity and relevance of it to the lives of every delegate in the room.

On the legal front, the main issues that we identified were (courtesy of James Westwood at Tozers):

Consultation

• Legal duty to consult employee(s) where material change to terms and conditions.
• Applies to all businesses. Additional obligations where the business proposes making 20 or more people redundant at one time or within a 90 day period.
• ‘Material change’ may be a change to hours, location, responsibilities or pay.
• Proposed changes must be agreed and employee given opportunity to discuss.
• If agreement not reached new terms may be imposed after correct consultation and a compliant process if the business need for change can be established.
If employee refuses to accept he/she can be lawfully dismissed on grounds of Some Other Substantial Reason (SOSR).

Custom and practice

• Non contractually agreed manner or condition of working can become an implied term of contract if permitted for a sufficiently long period.
• Clear contractual terms will usually override attempts to imply a contrary term.
• No fixed amount of time, but could apply after as little as one year dependant on the term in question.

Disciplinary procedure

Options available:

Ø Verbal Warning
Ø Written Warning
Ø Final Written Warning
Ø Dismissal

• No obligation to give a verbal warning first.
• The sequence need not be strictly followed. The level of warning can be chosen according to severity of matter.
• Summary dismissal (without warning) permissible in cases of gross misconduct.
• Specific requirements are set out by the Employment Act 2002 (Dispute Resolution) Regulations 2004 - a 3 step procedure:
o Notification of hearing
o Hearing
o Appeal

Disciplinary hearing

• Written notice must be given making clear that a formal disciplinary procedure.
• Reasonable notice must be given (at least 3 days).
• Range of possible outcomes should be advised.
• Issues outlined and right to bring representative advised (colleague, union rep, family member – not legal rep) – evidence to be provided in advance.
• Hearing conducted by someone other than investigator if possible.
• Verdict delivered in writing and right to appeal advised.

Grievance procedure

• Employee must set out in writing.
• Meeting should be held, the person being complained about does not need to be present.
• Outcome notified in writing and right of appeal advised.


Penalties
• 2-4 weeks pay if no statement of main terms provided and a tribunal claim is started.
• If unfair dismissal is claimed a basic award can be paid based on weekly net pay (capped) x weeks service x age multiplier similar to redundancy calculation.
• Compensatory award based on losses to the tribunal hearing and potentially beyond.
• Maximum compensation of £63,000 for unfair dismissal claims (which do not also involve a discriminatory aspect in which case £unlimited).
• Awards can be increased or decreased by 10-50% based on a parties failure to comply with the statutory dispute resolution procedures.


Miscellaneous

• Employers should provide all staff with at least a set of main terms of employment. A contract of employment will provide greater protection to the Employer.

Thank you to Simon Sanger-Anderson from Tozers www.tozers.co.uk and Barbara Darnley and Stephen Earle, our actors from edc inter/play www.edcinterplay.co.uk, for bringing alive the topic and issues.

What was clear throughout was that to be successful in this area and ensure that employment law doesn't get in the way of your goals you need a combination of:

• Sound legal principles
• Good people management practices
• An ability to work with the many vagaries of human nature

Effective application of the last two items on this list is likely to mean that you will need to have less recourse to the first.