HR advice from the Professionals

I read an interesting article this week regarding redundancies and the right to appeal. With the repeal of the statutory dispute resolution procedures in April 2009, there is now, no formal right to appeal during the redundancy process. However, our advice has always been to continue with current disciplinary and grievance procedures, as they go above and beyond the legal requirement.

This may sound like good news, making a redundancy process quicker, however a quick discussion round the office and we see that this may not be the best way to handle redundancies. Read on for our opinion on the right to appeal during redundancy.

Firstly, a redundancy is essentially no different to a ‘normal’ termination, where you are required to go through a number of key steps to avoid making it automatically unfair, offer the right to appeal to a more senior member of management or impartial Director. Therefore it is difficult to understand why due to the repeal of the dispute resolution regulations, that the right to appeal during redundancy has been removed, where all other employment rights apply.

Although an appeal process can lengthen a redundancy process, add more layers and potentially make decision making more bureaucratic, it does have it’s advantages, and bodes well for a fair and transparent process, that ACAS require. It may not be long before ACAS recognise the benefits that an appeal process brings to a redundancy situation, as we may now find, many organisations use this ‘loop-hole’ to their advantage - however could it not be to their disadvantage? Negating the need for an appeal, only heightens the risk for formal legal action. Wouldn’t you rather get any flaws of your redundancy process out in front of an appeal panel, rather than a Board room of lawyers, or even worse in a tribunal? Despite being 100% sure on the business case, there are always going to be pit falls, although often minor, in the selection process or criterion and therefore any employee selected for redundancy should get a chance to put their case forward, if they feel they have not been fully considered or unfairly selected.

In addition to this, having an appeal process in place, can often make the person taking responsibility for the initial redundancy decisions think more carefully about their choices, processes and procedures, should they have to justify their decision making to appeal boards or senior management.  It makes the process fairer, transparent and open, as employees feel that they have recourse.

Our advice is always to include the right of appeal in all termination situations, and include this clearly in your policy.

Following Sarah and Jennifer’s sunny days out with clients, we decided we should have an away day. Heather recommended Go Ape - so we made all the arrangements and headed off to Aberfoyle, on Friday 10th October. Even the rain and mist did not dampen our spirits and as the mini made it’s way north and west - the rain got heavier and the anticipation grew.

Now that we are back safely I can tell you that it was fantastic. It is very exhilarating and is a great team building event. We got very very wet as you can see from the photos!

This is Jennifer arriving on the zip wire!

The team before we got REALLY wet - arrived safely & looking forward to our adventure…………….

Becky sets off along the slippery path

Now we really are wet - but still smiling!

Sarah and Jennifer smiling in the pouring rain.

The way home is back across the zip wire over the trees, waterfall, landing on a big pile of wood chip ………

Jennifer looks happy!

Margery can’t believe she is in one piece

Sarah arrives elegantly……….

And a few action video clips!

http://uk.youtube.com/watch?v=JEGxnT11YfY

http://uk.youtube.com/watch?v=tMQVaBAF65o

http://uk.youtube.com/watch?v=Wb2PYiL1g3U

http://uk.youtube.com/watch?v=Fi_NRFoz1p0

If you want to find out more about Go Ape visit Go Ape

Some recent employment case law affecting various areas of the employment relationship:

Garden Leave : no contractual right to do so

Two employees resigned giving the required notice period, they were both leaving to join competitors. The employer had strong evidence to prove that they had taken confidential information, tools and know-how, of which their new employer was paying them a substantial amount of money for.

The employer insisted that they were put on Garden Leave, however there was no clause in the contract providing a basis for this. The court upheld that the employer was allowed to do this, despite no contractual right to do so, as it was “rendered impossible and reasonably impracticable for the employer to provide work,” as there was a breach of contract on the employees part.

Implications :

For the avoidance of doubt, ensure there is such a clause in the contract, as without this is may be difficult to insist on this provision. It may be possible where there is a clear proof of wrongdoing equating to breach of contract, but you need evidence for this!

Click here to see full article

Accruing annual leave when signed off sick – European Case Law

If your employee is signed off sick, they are still entitled to take accrued annual leave at a later date. The recent opinion of the Advocate General suggests that this may become law, even when the employee has been signed off sick for the whole of the calendar year. He said that statutory holiday entitlement was a social right. It is suggested that this may also apply when the employment relationship comes to an end, therefore paid in lieu of any outstanding holidays.

This case may also affect the right to carry holiday leave forward into the proceeding holiday year, although it is thought that the decision will not open this up indefinitely.

Click here to see full article

Spent disciplinary warnings:

An employee had been issued with a final written warning which would stay on his file for a period of 12 months. Around three weeks after the expiration of the final written warning, the employee was caught with three other staff watching TV on his nightshift. He was dismissed, but the others were given warnings.

He claimed that the dismissal was unfair, however the appeal heard that dismissal was within the reasonable range of response, and they held that the employee did NOT have a clean disciplinary record.

This case is good news for employers, however the courts have stressed not to rely on expired warnings. If you feel it necessary you can keep the warning on file for longer than advised by ACAS.

Click here to see full article

Alternative employment?

The employee was a manager for the Commission and was told that her role was redundant following re-structuring, she lodged a grievance. The employer offered her a total of three new posts, all of which she rejected. She finally claimed she was entitled to redundancy payments. The employers argued that as she had turned down three alternative employment opportunities, she had waived her right to redundancy payment.

The employment tribunal held that her refusal of the alternatives was reasonable, not because of the status of the job, but because of the relationship and lack of communication at the time, the redundancy process had become blurred.

All cases of redundancy and alternative employment must be judged on merit, and employers should remember that perception of the role and the whole process may reasonably affect the refusal. It is important to communicate and be open with employees at all times.

Click here to see full article

All text above is for information only, and not to be interpreted as legal advice.

Margery, Heather and Sarah have now completed their races with Heather coming in the fastest time of 33 minutes. All three really enjoyed the experience and are proud of the £1.5K that they have collectively raised for Cancer Research. The business also sponsored a client in the Moon Walk, who successfully completed the through the night adventure in 6.5 hours. It is great to take part in these events and to give to such deserving causes.

Margery

In October 2008, the minimum wage will increase from £5.52 per hour to £5.73 per hour.

For employers, this means that any employee over the age of 21 will receive a 3.8% increase in their hourly rate.

Workers between the ages of 18 and 21 will receive £4.77, a 17p increase, whilst 16 to 17 year olds will see an increaser of 13p to £3.53 per hour.

Meanwhile, the Government is set to crack down on employers who fail to pay employees minimum wage. The penalty fine issued for failure to pay minimum wage will be uncapped, increased from a minimum of £231.84.

Minimum wage was introduced in 1999 to provide a level playing field for competition, ensuring that companies are competing on quality of products and services, and not on low labour costs.

Minimum wage applies to all status of workers and employees, including foreign workers. However there are some exceptions to the rule, this includes apprentices under the age of 19, or apprentices in the first year of their apprentice, students on a work placement that forms part of higher or national education.

If you would like more information on minimum wage, please contact one of the Gravitate HR team or see the the link below.

http://news.bbc.co.uk/1/hi/business/7279199.stm

Keep an eye out for us in this years Race for Life, the UK’s largest women-only fundraising event.

Margery & Heather

You can find out more at

http://www.raceforlifesponsorme.org/margerymcbain

http://www.raceforlifesponsorme.org/heathermccaig