Unfair Dismissal: Case law example
Resignation does not need to be in writing (although it should be if that is required under the contract of employment), it can be given orally or in some cases via conduct. When a resignation is clear and unambiguous there is no obligation on the employer to double check the employee's intentions. However, if the employees resignation is unclear and an employer proceeds in treating the employment as having ended then there may be trouble ahead.
In Cope v Razzle Dazzle Costumes Limited the claimant was a factory worker. She fell out with a colleague who subsequently resigned, accusing the claimant of bullying. When the claimant was made aware of the allegations she requested a meeting with her employers, Mr and Mrs Parker, and said she would resign if things were not sorted out properly. The following day the claimant made two attempts to speak to Mrs Parker who was unavailable on both occasions. On being told this for the second time the claimant said "I'm done", left her factory keys on the counter top and left the building.
The employee whom the claimant had said this to subsequently advised Mr and Mrs Parker that the claimant had resigned. No attempt was made to clarify the situation, despite the claimant texting Mrs Parker later that day to indicate she had attempted to speak to her but couldn't stay at the workplace any longer. The following day she handed in a two week sick note, and a week after that she requested a meeting with the Parkers which took place. It was at that meeting that the claimant was informed that her employers considered her to have resigned and they did not agree to her returning. By this time the employers had also re-employed the employee who had made the bullying allegations.
The claimant was successful in claims for both unfair and wrongful dismissal. The tribunal was of the view that no reasonable employer would have concluded that the claimant had unambiguously resigned, and her subsequent behaviour, in particular the submission of a sick note, was not consistent with a resignation. The tribunal took the view that the employers chose to treat the claimant's actions as a resignation because dealing with a dispute between two employees was disruptive to the business.
It is easy to see why the tribunal came to the conclusion that it did. While announcing she was "done" and handing in her keys may, in some circumstances, reasonably be seen as a resignation, in this case the claimant was due to have 3 days off and she had in the past handed in her keys when off on holiday. The evidence also suggested that the claimant had been in a highly anxious state when she walked out and the act of obtaining a sick note is clearly not consistent with resignation. Treating it as such, to avoid dealing with the allegations of bullying, may have seemed like the easier option at the time but the award of nearly £7,500 in compensation together with the management time and any legal fees involved in defending the tribunal claim has likely given the employers a different perspective on the matter.
The advice for employers is if in doubt check it out. If it is unclear what has happened, or if words may have been said in haste then ask the employee to confirm what their intentions were/are. If words were said in the heat of the moment then consider giving the employee a short period of time to cool off and reconsider. If the contract requires written notice and this has not been given then ask for the resignation to be put in writing. This will avoid any subsequent dispute and a possible Employment Tribunal claim.
Lay offs: What you need to know
As unpredictability in the global economy continues, company layoffs remain in the news. While layoffs may be necessary and appropriate, in many cases they cause more damage than benefit. Some leaders taken actions to reduce risks to company performance, reputation and long-term viability. What can we learn from these actions?
1. Be clear in the reason for layoffs
When it comes to lay-offs, some are strategic and forward-looking with higher valuations and others are focused solely on cost cutting. Examples of strategic reasons for lay-off include exiting less profitable sectors, products or markets due to changing customer habits. Businesses who are transparent regarding the reasons for layoffs see an increase in investor, customer and employee trust and engagement.
2. Use layoffs as a last resort
Most organisations that conduct layoffs do not see improved profitability, especially those that are highly reliant on innovation and growth. Leaders often underestimate the negative impact of layoffs on productivity, employee engagement, retention and brand reputation.
Effective leaders know that they should pursue all possible alternatives before embarking on layoffs, including temporary furloughs, redesigning jobs and work models, moving some workers to contractor status and offering more flexible benefits to create cost and operational flexibility.
3. Act fairly
Layoffs historically have had a negative impact on women and underrepresented employees. Recent news stories show the effect of layoffs among employees on maternity and health leave, as well as those in vulnerable positions with visas.
Reasons cited as acceptable for determining who is laid off include factors such as employee performance, tenure, experience and skill set. Effective leaders know that evaluating performance, skills and other factors is difficult and time-consuming, and that maintaining ongoing performance evaluation and review processes can position companies well for both ongoing and unanticipated events.
4. Know the people being laid off
Great leaders spend the time and thought required to understand not only who they are laying off but also why and the potential impact. They conduct workforce planning exercises using data science to understand employee performance, skills, networks and collaboration patterns to safeguard against losing key talent and creating unintended consequences.
5. Take responsibility and show appreciation
Leaders must ensure they take responsibility for layoffs and show appreciation for those impacted. They demonstrate their empathy and compassion through all communications. They understand their audience, allow opportunity for employees to process the information and share their feelings, and provide support and resources.
While layoffs are difficult for all involved, effective leaders handle them with care to avoid unravelling company purpose, culture and performance.
Confronting Poor Performance
Whether you are a manager or an employee, annual performance reviews can be gruesome. It may be a little daunting, but these reviews are essential for any business, and they can empower or de-empower your employees.
What’s a performance review?
A performance review formally examines the employee’s job performance over a certain period. It’s importance is emphasized due to the fact that only 50/5 of employees know exactly what their superiors expect from them.
During the process, managers asses an employee’s entire performance, including their strengths and flaws. At this point, the supervisor can give constructive feedback and help workers set new goals.
Qualities of a successful performance review
These three qualities make any performance review effective and successful for managers and employees.
1. Achievement-oriented
Performance evaluations are far too frequently perceived as punishing rather than helpful, which demotivates workers. The best bosses praise their workers for their accomplishments and show them where they might grow in the future. Successful progress reviews should provide an opportunity for discussion about achievements as well as opportunities for critique.
Managers should communicate what they are supposed to achieve and address potential methods workers can use to operate at their peak performance.
2. Accurate and free of bias
Regular reviews allow workers to respond to what is said in the review instantly. Aside from that, they are more inclined to depict performance accurately.
Supervisors can conduct progress reviews frequently e.g every six months.
3 things workers should do during a performance review
Instead of worrying and waiting their turn to defend work achievements and failures, here are some of the things that they can do to prepare themselves during a performance review.
1. Create Notes: before each performance evaluation, workers should take notes on the discussion topics, objectives, strengths and flaws.
2. Self- evaluate workers should simulate a performance review for themselves to learn self- evaluation. They need to sit down in groups per department and analyze accomplishments, ambitions, shortcomings, and strengths.
3. Bring questions: in performance assessments, workers should be able to ask questions about certain parts that might be unclear to them. It might help to guarantee that all necessary questions are answered if they prepare their inquiries in advance.
Is Hybrid Working Here to stay?
As companies started moving back to on-site work for their employees, many employees have chosen to change jobs rather than be forced to return to an office. Of course, there are pros and cons to working from home or from the office but this is where hybrid work comes in. Working from home has become a valued part of many employees’ daily life.
Does Remote Work Affect Employee Productivity?
Working from the office allows an employee to chat with colleagues, have one-to-one or group meetings in person, and increase the chance of easy collaboration. On the other hand, working from home provides a more comfortable and relaxed environment where you can feel more in control of your day. Working from the comfort of your home, will also save you a lot of commuting time.
According to a Stanford Study, home working leads to a 13% overall performance increase. The experiment took place with a company with over 15’000 employees. The employees were assigned to either work from home or the office on a random basis. The employees who worked from home needed fewer breaks and fewer days off and did 4% more per minute compared to their peers.
Why are Remote Workers More Efficient?
In a 2021 survey conducted by FlexJobs, it was found that 51% of the surveyed workers considered themselves more productive at home or working remotely mainly due to:
- Being able to avoid office politics and relationships
- Having better focus
- A quieter work environment
- Fewer interruptions throughout the work day
Whether working from home becomes a legal right or not, from 2022 onward, employees will consider it an essential requirement when looking for work. The option to work remotely has become central to the decisions employees make.
Related Articles:
Changes to Flexible Working Rights
Remote Working: What are the risks? How to Manage them.
To Pay or Not to Pay – The Jubilee Bank Holiday
On Friday 3 June 2022, there will be an extra Bank Holiday granted to celebrate the Queen’s Platinum Jubilee. The usual May Bank Holiday has been moved forward to Thursday 2 June 2022 resulting in a four-day weekend for those able to take time off.
What are your employees’ rights when an additional Bank Holiday is announced?
The general rule is that employees do not have an automatic right to a day off work when this or any other Bank Holiday is announced. Employers will need to review their contract of employment to determine if an employee is entitled to a day off work and to be paid for it.
Some contracts of employment will state that the employee is entitled to a certain number of days of annual leave, “plus bank holidays”. In this case, they will be entitled to the additional Bank Holiday off work.
Other contracts of employment state that the employee is entitled to a set number of days of annual leave, but do not mention Bank Holidays. In this scenario, the employee will not be automatically entitled to the additional Bank Holiday off work.
Some employment contracts provide the employee with a set number of days of annual leave “plus eight Bank Holidays”. Again, this will mean that the employee is not automatically entitled to the additional Bank Holiday off work.
If the contract states “you are entitled to XX days holidays plus the usual bank holidays in England and Wales” again this would not give the worker an automatic right to the additional Bank Holiday because the addition Jubilee day is not a “usual” bank holiday
Employers will need to review their employees’ contracts of employment to see whether all of them, some of them, or none of them are entitled to take the Platinum Jubilee Bank Holiday off of work.
Where employees do not have a contractual right to the additional Bank Holiday, employers will need to consider if they wish to grant the day’s leave as a gesture of goodwill, if they will require employees to attend work or if they will give employees a day off in lieu of the Bank Holiday due to staffing requirements.
Whilst it is important to comply with the letter of the contract of employment or work, the additional Bank Holiday can also be a morale booster for staff. You may consider granting employees an additional day’s holiday for the Jubilee as an act of goodwill, stressing of course the reason for it being allowed as a one-off gesture.
Related Articles:
Extra Bank Holiday for Queen's Jubilee
Redundancy Part Two: Redundancy Procedures
As discussed in our Redundancy Part One blog, "Redundancy Part One: What it is & What to do”, every employer should consider having a formal redundancy procedure. The exact procedures will vary according to the time and size of the redundancy programme. Organisations should follow these stages as a minimum:
- Planning
- Identifying the pool for selection
- Seeking Volunteers
- Consulting employees
- Selection for redundancy
- Suitable alternative employment
- Appeals and dismissals
Planning
Employers should always try to avoid redundancies and consider different options such as:
- Recruitment Freezes
- Stopping or reducing overtime
- Offering early retirement to volunteers
- Retraining or redeployment
- Pay freezes
- Short-time working
It is important to note that employers will not be able to adopt these options without breaking their employees’ contracts.
Identifying the pool for selection
The group from which employees will be selected for redundancy must be identified carefully. It consists of at least one of the following:
- Those who undertake a similar type of work
- Those who work in a particular department
- Those who work at a relevant location
- Those whose work has ceased or been reduced or is expected to be.
Seeking Volunteers
To avoid compulsory redundancies, offering a voluntary redundancy package and seeking volunteers may avoid this.
Consulting Employees
Employers are required to consult employees and give them a reasonable warning of redundancy. There is no minimum statutory timescale when less than 20 employees are made redundant the consultation must be meaningful and be covered by contractual terms or policies. The employee is also entitled to be accompanied at all consultation meetings by a trade union representative or a colleague.
If more than 20 employees at one company are to be made redundant, collective consultations with recognised trade unions or elected representatives must start within minimum time scales:
- At least 30 days before the notification of redundancies for dismissals of 20-99 employees.
- At least 45 days before the notification of redundancies for dismissals of 100 or more.
Collective consultation must be completed before the notice of dismissals are issued to employees.
At the start of the consultation process, the employer is legally obliged to give the following information to the representatives:
- Reason for redundancy dismissals
- Number of redundancies and their job types
- Number of employees affected
- Methods of selection
- What procedure is going to be followed while dealing with the redundancies
- How redundancy payment is going to be calculated
Selection for redundancy
Once the consultation is finished, the employer may need to choose individuals from within the selection pool if there are not enough volunteers for redundancy. These choices must be based on objective criteria such as:
- Length of service
- Attendance records
- Disciplinary records
- skills, competencies, and qualifications
- Work experience
- Performance records
Suitable alternative employment
Employers must consider offering alternative work to redundant employees. If the employee refuses alternative work, they might lose their entitlement to a statutory redundancy payment. Employees can trial the alternative work for a period of four weeks. If the employer and the employee both agree that the role is not a suitable alternative, then the employee reverts to being redundant.
Appeals and dismissals
Employers should give written notice to those selected for redundancy. Employees should be notified that they are at risk of redundancy and be invited to individual meetings. Once the individual consultation is complete, the employer must decide whether the employee is to be made redundant and give them their written redundancy notice.
Related Articles:
Redundancy Part One: What it is & What to do
Redundancy in the UK: A Guide to Avoiding Unfair Selection
Redundancy Part One: What it is & What to do
Redundancy can come as a surprise to many people, and it is possibly one of the most distressing events an employee can experience. The employer needs to ensure that there is fair treatment of redundant employees as well as the morale of the remaining workforce. Employers must understand their obligations including employees’ rights and the correct procedures to follow.
What is Redundancy?
Redundancy is a form of dismissal when an employer needs to reduce the size of its workforce. In the UK, an employee can be dismissed for redundancy if:
- The employer has ceased or intends to cease, continuing the business
- The requirements for employees to perform work of a specific type or to conduct it at the location in which they are employed, has ceased, diminished, or are expected to.
Employers must follow a correct procedure and make redundancy and notice period payments.
Employers should:
- Take all reasonable steps to avoid redundancies
- Plan and develop employment strategies to deal with the requirements of short-term labour fluctuations, minimise the risk of enforced redundancies and maximise alternative resourcing opportunities.
- Manage redundancies legally and in a way that minimises the impact on both those who lose their jobs and those who don’t.
- Provide a communication strategy to ensure that everyone in the workplace has the correct information about any redundancies.
Redundancy during Coronavirus
Many people lost their jobs because of the COVID-19 pandemic, despite government intervention to try and avoid redundancies. The future situation is still uncertain, especially now the “furlough” scheme has ended. Employers who decide there is no alternative to redundancies still must follow their normal redundancy procedures. Proceeding without the consideration of alternatives may encourage employees with over two years’ service to present unfair dismissal claims.
Redundancy Procedures
As an employer, you should consider having a formal redundancy procedure. Employers should follow these redundancy stages as a minimum:
- Planning
- Identifying the pool for selection
- Seeking volunteers
- Consulting employees
- Selection for redundancy
- Suitable alternative employment
- Appeals and dismissals
These will be covered individually in our next blog post.
Protecting employee’s health and wellbeing
It’s important to approach the redundancy process with empathy and treat everyone with respect and kindness. How the employer handles the redundancy can determine how an employee copes with the news. Take time to explain the reasons why they are being made redundant and why it’s a hard business decision. You should also discuss the actions that were taken to avoid redundancy and facilitate redeployment. Notifying an employee of redundancy is a difficult task and employers should be trained to handle redundancies with sympathy and clarity.
Being selected for redundancy can have a huge effect on one’s mental health. Immediate and ongoing support should be available to those who have been affected by the redundancy.
Furthermore, redundancy also has an impact on other employees who are witnessing their colleagues being laid off and may feel that their jobs are at risk. It is the job of the senior managers to give all staff a full explanation of what is going on and what redundancy procedure is being used.
Related Articles:
Redundancy in the UK: A Guide to Avoiding Unfair Selection
Employee Engagement Part Two: Seven Dimensions of Good Work
As outlined in part one of this blog, Employment Engagement Part One: How to Attract and Retain Employees, the seven dimensions of good work outline the factors in which employees perform better in the workplace. The CIPD Good Work Index is an annual benchmark of good work or job quality in the UK. It provides a key indicator of the current state of work in the UK.
Here is an in-depth description of the seven dimensions of good work.
1. Pay and Benefits
There is no doubt that the amount of pay an employee earns contributes to their work ethic. Similarly, the employee's benefits from the employer, including pension contributions and other employee benefits such as additional annual leave or wellness programmes, can also contribute to the employees’ work ethic.
2. Work-life balance
Work-life balance concerns how employees manage and prioritise work and their time spent with families and other relationships and leisure activities. A fifth of respondents agreed or strongly agreed that their job affects their personal life
3. Contracts
The type of contract an employee receives is a key indicator of why an employee performs better in the workplace. Non-standard contracts, temporary, zero-hours and short hours can be associated with insecurity and unstable working patterns and perhaps an indicator of how an employee performs in the workplace.
4. Job design and the nature of work
Job design can be understood as the content and organisation of one’s work tasks, activities, relationships, and responsibilities. It is evident that job design and the nature of work can be crucial to how people experience job quality. There may be benefits for workers in terms of engagement and wellbeing. There are various factors that may be seen as components of job design, these include:
- Workload (whether one has the right amount of work)
- Job autonomy (level of control over the content, speed, method, and time of work)
- Resources (time, equipment, and suitable space to work effectively)
- Purpose (feeling of doing useful work for the organisation and the wider community)
- Job complexity (whether the job is interesting, requires learning new things)
- Skills (the level of a person-job match in skills and qualifications)
- Career development (whether the job provides opportunities for skill development and career progression)
5. Workplace relationships
There is a strong belief that good relationships at work can impact positively workplace performance. The context of workplace relationships can be influenced by the size of the workplace. The smaller the workplace the more they may benefit from direct and personal interactions in the workplace. In larger organisations, the number of staff may limit workplace relationships outside of an employee’s immediate team. It is evident that good relationships at work can impact positively an organisations performance.
6. Employee Voice
Employee voice and communication between employers and management are widely recognised as important elements of job quality. Having the confidence to speak, be listened to and have an influence are crucial to shaping and delivering other elements of job quality. The most common voice channels in UK workplaces are one-to-one meetings with line managers, team meetings and surveys.
7. Health and Wellbeing
Possibly one of the most important components of good work given the COVID-19 crisis related to employee’s health and wellbeing. During the pandemic, employers have adopted various measures to promote workers mental and physical health and safety during the pandemic.
Related Articles:
Employment Engagement Part one: How to Attract and Retain Employees.
Employment Engagement Part one: How to Attract and Retain Employees.
Employees who have good quality jobs and are managed well, will not only be happier in the workplace but will also produce better quality work and feel more motivated in the workplace. With changes in the workplace over the last two years, people have switched to jobs that better suit their needs. This has made people rethink what they do, how they do it and who they do it for. The rise in remote and hybrid working has also impacted individual, team and employer engagement.
The most important element on how to attract and retain employees is purpose. Employees need to know and understand the businesses goals and values to feel connected with them. Every job has a purpose, and it is the employer’s job to help people find that purpose.
How can you show purpose?
One way you can show purpose is by giving employees recognition. People want to be recognised for how they are making a difference to the company. A good way to start recognising your employees is by creating a culture of appreciation in the workplace.
How engaged are UK employees?
According to CIPD’s Good Work Index survey, two-thirds of workers are overall satisfied with their jobs. On a day-to-day level, just over half of UK workers usually feel enthusiastic about their jobs, one in three feel “full of energy” and over half are willing to work harder than they are required to.
However, a fifth of workers feel like they are under pressure, they feel exhausted and are likely to quit their job in the next year. The Skills and Employment Survey shows that work has become more intense over recent years mainly due to the rise in customer demands, technological change, and economic recession.
Seven Dimensions of Good Work
What promotes good work in the workplace? The seven dimensions of good work outline the factors in which employees perform better in the workplace.
- Pay and Benefits
- Contracts
- Work-life balance
- Job design and the nature of work
- Relationships at work
- Employee voice
- Health and wellbeing
Related Articles:
Extra Bank Holiday for the Queen’s Jubilee
As you may have heard already, there will be an extra bank holiday to mark the Queens jubilee year, celebrating 70 years on the throne. The May Bank Holiday Weekend will be moved to Thursday the 2nd of June and an additional Bank Holiday on Friday the 3rd of June will see a four-day weekend to celebrate her Platinum Jubilee.
Are my employees entitled to have extra bank holiday for the Queen’s Platinum Jubilee?
It is important to note that employees do not have an automatic right to time off on a bank holiday. It will depend on the wording of their contracts.
For example, if their contracts state that their annual leave entitlement includes usual or standard bank holidays or specifies which or what numbers of bank holidays are included, they will not be entitled to this additional bank holiday.
If their contracts state that their annual leave entitlement is a certain number of days plus bank holidays, then they will be entitled to the additional day’s leave.
What are the entitlements for the extra bank holiday?
You most likely have a process in place for bank holidays, depending on whether your business needs to be staffed on these days. Here are some helpful pointers:
- Staff are entitled to the extra bank holiday if their contract states – 20 days holiday plus bank holidays.
- Staff in England and Wales are not entitled to the extra bank holiday if their contract states – 20 days holiday plus 8 bank holidays (listed).
- Staff in Scotland are not entitled to the extra bank holiday if their contract states – 20 days holiday plus 9 bank holidays (listed).
- Staff are not entitled to the extra bank holiday if their contract states – 28 days or 5.6 weeks which includes bank holidays.
If you have employees working various hours you need to remember that part-time workers should not be treated less favourably than the full-time workers.
What to do if employees are not entitled to the extra bank holiday?
You have the following options if your employees are not entitled to the extra bank holiday:
1. Open on the extra day and require your staff to work as normal.
If you decided to open on the Friday and require your staff to work, they could still request to have that day off as part of their normal annual leave entitlement. However, you do not have to grant that request.
2. Close on the extra day and require your staff to take the day as leave out of their annual leave entitlement.
If you choose this option, you will have to give your employees at least two days’ notice if they are required to use their annual leave entitlement.
3. Close on the day of the bank holiday and grant your staff an extra day’s paid leave on a discretionary basis.
Whichever option you decide to go for it would be recommended that you communicate to your staff as soon as you can.
Related Articles:
