Monthly Archives: August 2015

General

Bullying and Harassment

Bullying and Harassment is a constant concern for many businesses.
Einon HR has helped many of their clients by providing policies and procedures with regards to Bullying and Harassment which provide a framework (e.g. professional, polite etc). This can be referred to very positively especially if any behaviour doesn’t match up.

It is important to recognise that it is not only Managers who can be the bullies, junior members of staff can also bully their Manager.

Einon HR has also come across many instances where allegations have been made where a Manager has raised concerns over an individuals performance in a perfectly reasonably manner, however, the member of staff hearing the message did not like what they were hearing, and therefore tried to argue that the Manager was bullying them.

The workplace needs to be a safe place where members of staff are encouraged to raise concerns, and if they do observe poor behaviour they know when they raise their concerns the necessary action will be taken.

HR Tips

Dismissing staff with short service

Einon HR often get asked …. It’s risk free to dismiss an employee who has under 2 years service…. isn’t it ?
Employers often believe it is relatively safe and easy to dismiss unsatisfactory employees with under 2 years service without risk, and quite often it is. However, there are some exceptions to the rule that employers need to be aware of.

Prior to any dismissal employers should satisfy they have assessed all the risks, as certain claims can be made irrespective of length of service.

Certain dismissals are automatically unfair and there is no length of service qualification for these types of claims. These situations include, when an employee is dismissed for raising a health and safety concern, taking leave for family reasons, asserting statutory rights, which include working Time Regulations, TUPE laws, and national minimum wage etc…….

Consideration should also be given as to whether the employee could claim the dismissal was discriminatory on the grounds of sex, pregnancy, maternity, gender assignment, marital or civil partnership, race, disability, sexual orientation, religion or age.

While the employer may have a genuine reason for dismissing on the grounds of poor performance the employer needs to follow a full and fair procedure meaning if an employee bought a case of unfair dismissal then the employer would be able to show evidence that a full and fair process was followed.

Company procedures should be reviewed in order to ensure that they are not contractually binding. If the disciplinary/capability/redundancy procedure is contractual and not adhered to, there is a breach of contract risk and the ex-employee may sue for damages.

If you are faced with this type of issue Einon HR can help and support you through this, we can also review your procedures to ensure they are legally compliant and are not contractually binding. Leaving you to run your business.

Einon HR can be reached on 0776 4948898 or why not send us an email.

HR Tips

An employee has over two years service and is under notice of redundancy do we have to allow them time off to look for alternative work?

Where an employee with over two years’ service is under notice of redundancy, they have the right to a reasonable amount of paid time off to look for alternative work or to arrange training. However, despite the amount of actual time taken off, the employer is only obliged to pay the employee 40% of a week’s wage. For example, the employee works five days per week and takes three days off during the whole of the notice period to look for alternative work, the employer is only legally obliged to pay for two days because that is 40% of the employee’s normal working week. As to whether the amount of time off requested is reasonable, that will depend on the facts of each case.

News

Gross misconduct dismissal unfair for employee with 34 years clean record

In a recent case Newbound v Thames Water Utilities, the court of Appeal looked at whether an employee, who had his employment terminated for gross misconduct after a serious breach of health and safety rules, had been unfairly dismissed.
Under the Employment Rights Act 1996, misconduct is a potentially fair reason for dismissal; however, whether a misconduct dismissal is fair or unfair depends on an assessment by an employment tribunal of whether the employer acted reasonably or unreasonably in treating the misconduct as a sufficient reason for dismissal. Case law has established a ‘band of reasonable responses’ test used in answering this question.
Newbound was an experienced sewer worker who had been employed by Thames water for 34 years. He was summarily dismissed, following an investigation into an incident in which he had gone into a sewer to conduct an annual inspection without wearing breathing apparatus. This was in contravention of safety requirements involving a newly introduced ‘safe system of work’ form used by Thames Water for complex activities not covered by the usual risk assessment. The form stated that breathing apparatus had to be used and this had been made clear to Newbound by his Manager.
The employee in charge of sewer entry, who allowed Newbound to enter without breathing apparatus, was given a written warning but was not dismissed.
The court of Appeal agreed with the tribunal that the dismissal would in any event have been unfair because of the disparity of treatment between Newbound and his colleague. Unlike Newbound his colleague was interviewed prior to the disciplinary hearings and was subsequently charged with misconduct, not gross misconduct, which meant that under the employers disciplinary procedures he could not be dismissed.

This is a reminder that, while in many cases an employer will have the right to decide how best to deal with a serious breach of health and safety discipline, the particular circumstances leading up to an incident will always need to be considered. The Court of Appeal’s endorsement of the continuing relevance of an employee’s length of service is also significant.

It is advisable that any new health and safety procedures should be introduced with the backing of comprehensive communication and the necessary training to all individual employees.

For more advice please contact Einon HR 0776 494 8898