AN INTRODUCTION TO EMPLOYMENT LAWBecoming An Employer Or Guiding

A Small Business

Aims & Audience

1. Small businesses may view it to understand areas of risk;

2. Non-specialist solicitors (or paralegal/new qualified) will get something out of it;

Businesses fall into two distinct types

With Legal Knowledge.

Address the issues of employers obligations;

Have contracts of employment;

Have policies and procedures;

Have staff/management handbooks

Limited or NoEmployment

Knowledge. No contracts; Poor management

control of staff; High

sickness/absence rates;

Poor profilbility

Do all businesses need advice?

WHY THEY NEED SOMETHING

WHY THEY NEED A LAWYER

Recruiting the right people for the right roles;

Legal compliance – staying out of trouble;

Profits are linked to people and performance.

Three scenarios when they seek advice:-

1. Tribunal Claim threatened or issued;

2. Management Consultant engaged to develop the business grow;

3. Business is growing/shrinking.

If your client gets this wrong?

Risk of professional embarrassment; Risk damaging the business;

What to do....

The starting point with employment law is always have what you have done documented:-

1. Offer of Employment Letters;2. Contracts or Statement of Terms;3. Have policies in a Staff Handbook – have a

Managers Operations Manual to support this and aid day to day staff management;

4. Document and take notes at any discussions with staff – what was said, why, agreements reached.

What to do....

5. Have redundancy and disciplinary criteria documented;

6. Get staff to sign, acknowledge and agree handbooks, policies and agreed actions;

Recruitment

Are you recruiting employees fairly? Are you selecting people you like or

people you need? What is the job description? What is the person specification? Have you applied these to the applicants?

How to do it.....

Focus on the skills needed – what would make your business better?

Objective criteria – what is needed?Experience of in...Qualification in...

Continued

JOB SKILLS PERSON SPECIFICATION

How will they work? Factory

floor/office/from home; Sales? Admin?

Management? Junior? Apprentice?

What is the core skills that are necessary?

What additional skills would be nice?

Specific qualification?

Specific skills? Experience and level

of expertise? Industry knowledge What you need from

the employee and why?

Discussed if possible with team.

How to do it.....

Think it through Talk it through Make notes of the job available and tell

applicants about it Make notes of the personal qualities

needed and assess the applicants against it

Practically.....

Get someone in to review and assess your current position and how best to improve it;

That will mean training those with day to day people management duties, those who deal with grievances and discipline and having standard documents left with you to limit the management time necessary to maintain the new standards;

In SME’s this often means training the owners and helping them benchmark performance of employees to maximise profit.

Offer Letters....the foundations of the employment house.

Confirms the job offer obviously; More than that it manages expectations on

both sides – Is working in an SME really for the prospective employee? What about the pressures? Lack of benefits?;

It creates the focus to confirm and clarify things i.e. job role, pay, payment date, bonus structure, line management;

It helps also create a job description (which probably should have proceeded all of the above and the recruitment process but......);

Statement of Terms – Section 1 Employment Rights Act 1996

Most lawyers think of law as contractual rights. In employment the statutory position is the important one first and foremost – contract just adds the extras on to the basic compliance position.

A Section 1 Notice contains the minimum criteria. There is no excuse for not using them because they are freely available on line and formulaic. (See Business Link Website);

Good advisors will add to this as a base point though. Senior staff will need more detailed contracts of employment. This is were employment lawyers come into their own;

The Notice

Provided to new employees within 8 weeks of commencement of employment;

Employers who fail to do so may have a Employment Tribunal award compensation against them as part of other claims(Currently - between 2 and 4 weeks pay);

Contents – Statutory Minimum & Recommended combined

The Parties; Date employment commenced; Job Title & Duties; Location; Confidentiality Hours of work; Pay;

Contents Part 2

Holidays (28 days minimum for full time workers);

Public holidays (and effects on part time workers to comply with case law and regulations);

Pensions; Sickness and Injury; Termination of Employment;

Contents Part 3

Post Termination Restrictions (if new Employee. Existing Employees take specific advise);

Data Protection Notice (and consent); Collective and Workforce Agreements (if

none state none); Company Handbook Signature to acknowledge receipt.

In an ideal world......here or in induction document.

Restrictions after termination of employment;

Grievance and Discipline (into company handbook);

Acknowledgement of receipt of training on discrimination, company processes and health and safety policy.

Policies

These are best placed in a non-contractual Staff Handbook drafted to the legal minimum and/or the levels in force with your firm;

Review is likely to be needed every April and October when the law changes in respect of most employment obligations;

Most reputable suppliers will charge a flat fee for the handbook and a modest update price going forward;

Policies

Health & Safety; Data Protection; General Standards of behaviour/dress; IT; Internet; Telephone and Mobile Telephone; Capability Procedure;

Policies - continued

Discipline; Dismissal Redundancy; Grievance Procedure; Harassment; Whistle blowing; Personal Property;

Policies continued

Personal Transactions – Friends and family advice;

Retirement Procedures; Training and Professional Development; Appraisals; Working Time Policy; Equal Opportunities; Parental Leave;

Policies Continued

Maternity; Paternity; Adoption; Compassionate Leave Policy; Flexible Working Home/Remote Working

The work involved

If coming at this having not done anything for some time it can be intimidating;

It is a ongoing issue hence you need to put into place cost effective solutions.

Here’s Why.....

Personnel Management.

Staff need clear line management;

To understand their role;

To be challenged and motivated;

Getting rid of the weaker elements of man management and supervision increases staff morale.

Business Reasons. Your staff are how

you make profit (even if you sell widgets they make/sell/distribute them);

Your profits too; Good management

equals enhanced performance.

Types of claim

Wrongful Dismissal. Contractual in nature; Not statutory; Dismiss within terms

of the contract or a claim exists to restore former employee to position prior to breach i.e. lost wages/benefits/notice.

Unfair Dismissal. Employees only; Automatically

unfair are maternity, flexible working, part time working, asserting a statutory right (health and safety etc), trade union membership.

Unfair Dismissal continued....

In other cases:- 12 months service is required; Forced resignation; Termination by the employer without a

good reason and without following a fair procedure (such a discipline or redundancy);

The test is “within the band of reasonable responses open to the employer”;

Redundancy

Employees should be selected for a redundancy fairly;

Objective reasons must exist for selecting that employee and/or the roles being made redundant;

It is not “your role” but “a role” that needs to go and fairly reviewed one must be chosen and here’s why. Consultation and appeal avenues must be provided to prevent unfair dismissal.

Discrimination

As employers we must prevent discrimination on the grounds of age, race, sex, disability, religion, sexuality or because of parental status;

That means treat fairly; It also mean being proactive to ensuring

equality by training and raising awareness amongst staff and managers of the issues;

Document the policies, the training and the preventative steps;

Discipline

The law changed on the 6th April 2009 (again) on this point. As a minimum:-

Discipline must be fairly imposed; A procedure must be followed; Investigation then decision – assumptions

are not acceptable; Employees have a right to know why they

are being disciplined, the evidence (and the chance to challenge it), the right to appeal.

Grievances

Like discipline subject to recent changes; The focus now is less procedural and

more about solving the issue but you need a process to gain the facts, the evidence the trust of the parties;

Enhanced ACAS focus but as yet it is to soon to say if this is helping.....

Conclusion

Document every aspect of the employment process;

Set up records and personnel files; Review the approach at least annually; Use expert help to set up the systems,

policies and documentation.

About the speaker

Founded Boutique Employment & Business Support Law Firm Bennett’s Legal in 2009;

Clients include other law firms, management consultants and various businesses an industries including healthcare, SME’s and sport clubs.

Bennett’s Legal operate nationally from a West Midlands base see www.bennettslegal.co.uk or call 01743 453 161