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8
Aug 18

Posted by
Jennie Hussey

Back to Basics - Disciplinary Steps & Sanctions

Another question that comes up from time to time is how and when to initiate the disciplinary procedures - How many warnings can an employee receive before being dismissed? When do I give a final warning? Can I fire my employee for committing an offence of gross misconduct?

The first step is always to inform the employee of issues that you may have, even minor issues; whether it is with their job performance, their time keeping, or even a breach of company rules, by means of informal counselling. The employee must be given the appropriate time/measures to defend themselves or at least be given the chance to rectify the problem. Prior to taking the decision to invoke the disciplinary procedure, the employer must ensure that the situation has been thoroughly investigated.

The following disciplinary procedures should apply in matters of discipline; constant repetition of minor offences, willful negligence or unsatisfactory performance or complaints, that are found to be proven against the employees.
The stages in the procedure are as follows:

• Stage 1 - Verbal Warning
• Stage 2 - First Written Warning
• Stage 3 - Final Written Warning                                                                                                                        The final written warning will state clearly that the next stage may be termination of employment if conduct and/or performance does not improve.
• Stage 4: Action Short of Dismissal
In exceptional circumstances, and depending on the individual case, The Company may exercise its discretion to suspend with or without pay. Demotion to a lower position or rate of pay and transfer to another position may also be considered. This is action short of dismissal.
• Stage 5: Dismissal
In an instance of gross misconduct, a full investigation will be conducted and a disciplinary meeting will be held. This will follow the normal procedures outlined above, but the outcome, if found to be gross misconduct, will almost certainly result in dismissal due to the serious nature of the situation.

At each stage in the procedure a disciplinary meeting should be held, where all the facts will be considered and any mitigating circumstances discussed, as well as timelines imposed for improvements, etc. Where a warning is issued, a copy will be placed on the employees personnel file for a defined period. All warnings issued under this procedure will state clearly that the employee will be liable for further disciplinary action should their performance not improve or should there be a further breach of company rules or procedures. In the event of no further transgression occurring and the performance improving, the warning will be removed after a period of no more than 12 months and the employee’s file will be clear. The employee will also be advised of his/her right to appeal against disciplinary action taken.

This is an area where employer’s need to tread carefully, at all times fair procedures must be applied and the company’s’ policy regarding disciplinary steps and sanctions should be adhered to. Once these steps are followed there is no reason why an employer cannot dismiss an employee without repercussions. Most employers tend to fall down and lose Unfair Dismissal cases brought against them, not because they didn’t have disciplinary procedures in place, but because they did and they failed to actually follow them.

Bright Contracts has a very robust Discipline and Grievance Policy set out in its Handbook with all the relevant procedures that an employer needs. To download a free trial of Bright Contracts click here. To request an online demo of Bright Contracts, click here.

 

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Posted in Dismissals

17
Apr 18

Posted by
Laura Murphy

Pay in Lieu of Notice (PILON) – Do you need to review your employment contracts?

Changes to the way in which termination payments are taxed came into force from 6 April 2018.

From 6 April all notice pay is to be treated as earnings and subject to tax and national insurance contributions – irrespective of whether or not there is a pay in lieu of notice clause (PILON) in the employment contract, this effectively removes the distinction between contractual and non-contractual PILON.

As a matter of best practice, we would certainly recommend that going forward all employment contracts contain a PILON clause.

In fact, in light of these recent changes, not having a PILON clause now will only leave you at a disadvantage. If you were to process a payment in lieu of notice without a contractual right to do so it could leave you at risk of not being able to rely on any post-termination restrictions such as non-competition clauses and confidentiality. Processing a PILON without a contractual right to do so would be considered a breach of contract. This is because you would be in breach of contract by making the payment and would therefore result in you not being able to rely on any of the other contractual clauses.
Contracts of employment created in Bright Contracts will contain a PILON clause by default.

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Posted in Contract of employment, Dismissals, Employee Contracts, Pay/Wage

16
Apr 18

Posted by
Jennie Hussey

Tribunal claims up 90% since abolition of fees

The Ministry of Justice (MOJ) has published figures showing a massive 90% increase in single claims lodged at employment tribunals in the last quarter of 2017 compared to the last quarter of 2016 - the Supreme Court ruled tribunal fees to be ‘unlawful’ during last summer and abolished them going forward.

The MOJ has cited the reversal of fees as the cause of this rise in cases, as employees are no longer put off making claims and using the tribunal process.

The most recent quarter has also shown a 467% increase in multiple claims, filed by more than one complainant. Some of the major supermarkets, Tesco, Morrisons and Asda have all faced multiple pay claims in the last few months, with Tesco facing up to £4bn in fines from a single group claim.

With the abolition of the tribunal fees came a refund scheme which saw 3,337 claims processed for refunds of fee payments to the value of nearly £2.8m between October and December 2017. There is four years worth of fee payments that could be claimed for refund, adding to the growing headache that is the whole tribunal fee’s debacle.

All of this is putting significant pressure on the tribunals who had, after the fee’s were originally introduced, reduced staff numbers and had their funding cut, is now having to deal with huge backlogs and delays. The increase in employment tribunal claims since the removal of the tribunal fees indicates just how important it is for employer’s to have in place proper policies and fair procedures in relation to their employee / employer relationship.

To book a free online demo of Bright Contracts click here.
To download your free trial of Bright Contracts click here.

 

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Posted in Company handbook, Contract of employment, Customer Update, Dismissals, Employment Tribunals

5
Jan 18

Posted by
Laura Murphy

What lies ahead for employers in 2018?

2018 looks set to be another busy year. We take a look at some of what’s coming down the pipeline.

April 2018 - Gender Pay Reporting

Private and voluntary sector employers in England, Wales and Scotland with at least 250 employees will be required to publish information about the differences in pay between men and women in their workforce, based on a pay bill ‘snapshot’ date of 5 April 2017, under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. The first reports must be published by 4 April 2018.

Legislation in Northern Ireland mirror the above, except they also include fines of up to £5,000 for non-compliance, and a requirement to report on ethnicity and disability pay gaps, as well as gender.

April 2018: Termination Payments

The government plans to make changes to the taxation of termination payments from April 2018. The proposals include:

• removing the distinction between contractual and non-contractual PILONs (payments in lieu of notice) so that all PILONs are taxable and subject to Class 1 NICs]
• ensuring that the first £30,000 of a termination payment remains exempt from income tax and that any payment paid to any employee that relates solely to the termination of the employment continues to have an unlimited employee NICs exemption
• aligning the rules for income tax and employer NICs so that employer NICs will be payable on payments above £30,000 (which are currently only subject to income tax)

A government consultation on the issue closed in October 2016.

April 2018 – Restricting Employment Allowance for Illegal Workers

The government plans to introduce a further deterrent to the employment of illegal workers. From April 2018, employers will not be able to claim the Employment Allowance for one year if they have:

• hired an illegal worker
• been penalised by the Home Office
• exhausted all appeal rights against that penalty.

A consultation containing draft regulations closed in January 2017.

25 May 2018 – General Data Protection Regulations

The much anticipated General Data Protection Regulation will come into force from 25th May 2018. For those who haven’t already started preparing, now is the time. The GDPR will apply to ALL companies and sole traders that process personal data, the definition of personal data is broad and can include anything from a name, an email address or an IP address.

With possible fines of €20 million or 4% of annual turnover – which ever is higher, businesses need to sit up and take heed.

For further information of GDPR sign up to our employers webinar here or read our blog here.

To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here
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Posted in Customer Update, Dismissals, Employment Update, GDPR, General Data Protection Regulation

6
Nov 17

Posted by
Jennie Hussey

How to Avoid Harassment in the Workplace

The recent allegations against Harvey Weinstein in the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.

In the UK, the Equality Act 2010 prohibits sexual harassment, defined as conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples might include unwelcome sexual advances, displaying pornographic images, or sending emails containing material of a sexual nature.

Employers in the UK are responsible for their employees’ actions in the course of their employment, even if such actions are taken without the employer’s knowledge or approval. Employers should be able to demonstrate that all reasonable steps to prevent the employee from taking discriminatory action were taken, in order to build a successful defense.

Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.

There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:

A Bullying and Harassment policy

  •  to protect the dignity of employees and to encourage respect in the workplace

An Equal Opportunities policy

  • to create a workplace which provides for Equal Opportunities for all staff

A Whistleblowing policy

  • to enable staff to voice concerns in a responsible and effective manner.

Transparent and fair procedures throughout

Disciplinary action

  • A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.

Provision of on-going training

  • At all levels within organisation

Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Bullying and Harassment, Company handbook, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook

25
Oct 17

Posted by
Lauren Conway

Government have launched Employment Tribunal fee refund scheme

Following the ruling in July this year which saw the Supreme Court rule employment tribunal fees as unlawful, the Government is now ready to start repaying the thousands of people that were charged.

The ruling, which was heralded as possibly the biggest employment law decision ever in the UK, saw the Supreme Court unanimously ruling that the Government was acting unlawfully when they introduced the fees back in 2013. Fees of up to £1,200 were introduced resulting in a dramatic fall from 5,847 employment tribunal cases the year before the fees were introduced, to 1,740 the following year.

The first steps

The first stage of the refund process will see up to around 1,000 people contacted individually and invited to complete their forms before the full scheme is opened up in the coming weeks. The Government is also working with Trade Unions who have supported large multiple claims, potentially involving hundreds of claimants.

People who were ordered by the Tribunal to reimburse their opponent their fee and who can show that they have paid it are also eligible to apply for a refund under the scheme.

Successful applicants to the scheme will be refunded their full fee and will also be paid interest of 0.5% calculated from the date of the payment right up to the date of the refund.

The opening phase of the refund scheme will last for around 4 weeks. Further details of the scheme will be made available once the scheme is rolled out fully.

For further details please see gov.uk

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Dismissals, Employee Contracts, Employee Handbook, Employment Tribunals, Employment Update

3
Oct 17

Posted by
Jennie Hussey

£25,000 awarded for unfair dismissal due to pregnancy

Leeds Employment Tribunal recently awarded just over £25,000 in compensation after it ruled a woman was unfairly dismissed from her training job at Bradford District Training Agency after she became pregnant.

The woman told the tribunal that her contract had been verbally extended at the same time as she received a promotion and pay increase. She spent a number of weeks chasing the company for her written terms of the extended contract, which would have kept her in her role until March 2017. She was later dismissed, shortly after announcing her pregnancy.

The company stated that the woman lost her job due to redundancy and that her fixed-term contract had expired, it was nothing to do with her pregnancy. However, the tribunal found that the company had offered unreliable evidence and the company’s behavior was ‘substantially and procedurally unfair’ and stated that firing an employee because of being pregnant was a ‘serious act of discrimination’.

The woman was awarded £9,130 for loss of earnings and £15,600 for injury to feelings and £435 for loss of statutory rights.

Naeema Choudry, a partner at law firm Eversheds Sutherland, stated that; “Tribunals will undertake a thorough evaluation of the facts and evidence whether there is an inference of discrimination. While it is not unlawful to make redundant a pregnant employee if the decision is linked in any way to the pregnancy it will amount to unlawful discrimination and unfair dismissal. Similarly, if the contract of employment of a pregnant worker is not renewed because of her pregnancy or future maternity leave, this would also amount to unlawful discrimination.”

This case shows us that tribunals take discrimination very seriously and that they will not simply accept at face value the reason for dismissal put forward by an employer. Employers should also be aware that as there is no cap on the amount of compensation that a tribunal can award in a claim for discrimination.

To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here

Posted in Awards, Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, Staff Handbook

3
Apr 15

Posted by
Michelle Arkins

What you need to know when relationships are failing!

All employers need to know how to discipline their employees fairly. Legislation and Codes of Practice place great emphasis on procedural fairness when dealing with grievances. In some instances, a grievance may lead to a constructive dismissal if it is not handled correctly. Mishandling disciplinary issues gives rise to a huge number of employment tribunal claims every year including breach of contract, unfair dismissal and discrimination.

Do you know employer’s in the UK are not legally obliged to follow the Acas statutory Code of Practice on discipline and grievance procedures should it become necessary to dismiss an employee. However, failure to do so can result in any compensation awarded in a subsequent claim brought by the employee being increased by up to 25% for not following fair and consistent procedures.

Employers who have disciplinary procedures in place must put their procedures in writing, and make it easily available to their employees (for example, by giving details in the staff handbook). It should include the procedures followed during the disciplinary process, what performance and behaviour might lead to disciplinary action, and what action your employer might take.

An employer should follow a proper disciplinary process if it believes that an employee may be guilty of misconduct. As far as possible, the aim of the disciplinary procedure should be to improve conduct, rather than simply to punish wrongdoing.

Employers are advised to follow the Acas statutory Code of Practice on discipline and grievance procedures. It provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace. Click here for a detailed overview.

Disciplinary procedures should include the following steps:

1. A letter setting out the issue.
2. A meeting to discuss the issue.
3. A disciplinary decision.
4. A chance to appeal this decision.

Having a well drafted company disciplinary policy and procedure in place is critical for all employers; without the latter in place, defending claims of unfair dismissal or constructive dismissal would be incredibly difficult.

The majority of unfair dismissal claims are lost by employers because they fail to follow fair procedures during the disciplinary process or simply don’t follow any!

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Posted in Company handbook, Contract of employment, Dismissals

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