Mind What You Say

Whatever the size of the companies we support, when it comes to employee problems there is a definite trend. On the whole, our helpline enquiries relate to misconduct issues, poor performance or intermittent persistent absence. Do any of these sound familiar?

In most cases the problem can be resolved and everyone lives happily ever after (until the next appraisal), but a small proportion of cases will ultimately end in dismissal. What we can never know at the outset is which cases will go all the way.

With that in mind, it is crucial that we follow a fair process in handling every case – not just because it gives us the best chance of resolving the problem, but also because if this is the case that’s going to end in dismissal, we need to make sure it’s a fair one.

For the ultimate dismissal to be fair, we must have followed the appropriate process that relates to the type of problem – misconduct, poor performance or persistent absence.

Misconduct describes behaviour that is blameworthy, for example, knowing the rules but breaking them anyway. In contrast poor performance, when this is caused by a lack of capability, or poor attendance when a colleague is genuinely ill, are not blameworthy.

The process that a company follows to manage these three big issues are usually fairly similar; an escalating series of warnings that a) make an employee aware of the problem and b) support them in trying to improve the situation – but the tone should be very different.

The process for managing blameworthy behaviour is the disciplinary procedure. The language used in all the letters, emails and warnings communicating with the employee can reflect that we are talking about an incident that we feel they are culpable for. This is the relatively straight forward one.

Capability and frequent absence tends to be where companies come a cropper. If we want to argue later down the line (read ‘Tribunal‘) that the reason for dismissal was one of the non-blameworthy ones such as ‘capability’ for poor performance or ‘some other substantial reason’ for frequent absences, all the correspondence that has gone before needs to support this.

If, in correspondence about an employee’s frequent absences, we have gone on about how they are letting the team down, or given them a guilt trip about the impact of their absences, or warned them they must improve – we are effectively suggesting that they are in control of their actions and the absences are blameworthy. With a paper trail of evidence to this effect, it would be tricky to try to argue the dismissal was for a non-blameworthy reason such as ‘some other substantial reason’.

I appreciate this may sound like inconsequential gobbledygook but the bottom line is that getting this wrong can land you with an unfair dismissal. If we say we dismissed for capability and a Tribunal decides the real reason for our actions was misconduct (we thought they were bunking off work when not really sick), we lose.

The golden rule is to decide what the real issue is up front – genuine frequent sickness absence or willful malingering – then ensure our language and tone at meetings and in all our written correspondence is consistent with the underlying view of blame or no blame.

Employment Law Update – October 2013

It’s been a very busy last few months with changes in Employment Law and it’s not over yet. There is more to come.  Here’s a catch up on some of the recent key changes and what’s ahead of us.

With effect from 29th July 2013, Compromise Agreements have been re-named as Settlement Agreements.

In addition, conversations between the employer and employee with a view to ending the employment relationship under a settlement agreement are not admissible as evidence in most unfair dismissal claims. However, discussions will not be protected if the reason for parting company is for an automatically unfair reason and…..  Claimants can rely on what was said during pre-termination negotiations as evidence in other types of claims they may want to bring e.g. a discrimination claim or a claim for breach of contract. Therefore it may be worth considering following the “without prejudice” principles for some pre-termination discussions. Continue Reading



As you may be aware, Employment Laws have been under review for some time and many of the proposed reforms will come into effect in stages from April 2013.

We thought you may find it useful to take a look at the key changes that are due to take place in 2013 and beyond.


  1. Early Conciliation
    From April 2014, there will be an opportunity of early conciliation via Acas for  most employment disputes before a tribunal claim is made. Claimants will be required to contact Acas before they lodge their claim in the employment tribunal although prospective Respondents who are pre-empting a claim may also request early conciliation. If both parties accept early conciliation there will be a time limit of one month to try to reach a settlement failing which a certificate will be issued to the Claimant who can then proceed with a tribunal claim. If the employee fails to include the certificate reference number on his or her claim the tribunal will dismiss the claim.If either party refuses early conciliation, Acas will issue a certificate to the Claimant so that the claim can proceed to a tribunal.
  2. Financial Penalties
    Employers that breach employees’ rights will face a financial penalty awarded by employment tribunals and payable to the Exchequer.  Employment tribunals will have the discretion not to issue fines where the employer has accidently breached an employee’s rights. An employer will also be able to appeal a penalty.The penalty will range from £100 to £5000 and if the fine is paid within 21 days only 50% of the penalty will be due. The implementation date is Spring 2014.
  3. Fees for Lodging Claims
    Claimants will have to pay an initial fee to issue a claim followed by a further fee if the claim proceeds to a hearing. The value of the fee will depend on the complexity of the case but it will also be means tested.  The tribunal may order the fees to be repaid to the claimant if he or she is successful with their claim. Fees are also payable for appeals submitted to the Employment Appeal Tribunal. This is due in this summer.


Compromise Agreements will be renamed Settlement Agreements. Settlement Agreements and without prejudice discussions will be able to take place without the need for a dispute to already exist and without the discussions being admissible in unfair dismissal proceedings.

The change in legislation will mean that offers to end the employment relationship on agreed terms can be made even where one or more of the parties is unaware that there is an employment problem.

Acas will launch a draft code of practice alongside the new legislation to help everyone understand how it will work in practice. These changes are due this summer.


The Reform Bill sets out changes to Whistleblowing. The main change being that a disclosure is not protected unless the employee reasonably believes that the disclosure is made in the public interest. Further, a disclosure no longer needs to be made “in good faith”. Where a disclosure is not made in good faith, the employment tribunal will be able to reduce compensation by up to 25%. This change is due in June 2013.


  1. Agency Workers
    The ERA is amended to allow agency workers the right to request flexible working on return from parental leave.
  2. Shared Parental Leave
    Mothers who wish to take shared parental leave will have the opportunity to request this during their maternity leave period as long as they refrain from working during compulsory maternity leave.  Employees will be required to give their employer 6 weeks’ notice before their maternity leave commences that they wish to take shared parental leave. There will be a two week consultation period to agree the flexible leave but failing any agreement the fall back will be it must be taken in one block. How this will be administered is yet to be ironed out and consultation on this will take place sometime during 2013.
  3. Adoption Rights
    Adoptive parents will be entitled to the same rights to pay and leave as birth parents.
  4. Antenatal Appointments for Fathers
    Prospective Dads will be able to take unpaid leave to attend 2 antenatal appointments.The implementation date for these changes is expected in 2015.
  5. Flexible Working
    The right to request flexible working will be open to all employees not just those with children under 17 or caring for adults.  In addition, the statutory procedure currently in place for making such requests will be removed and the employer will have a duty to ‘reasonably’ consider a request. There will be a statutory code of practice introduced to give guidance as to the meaning of “reasonable”. Implementation for this is expected in Spring 2014.
  6. Parental Leave
    Parental Leave was increased to 18 weeks per child from 8 March 2013 and the Government has further announced that they will increase the upper age limit to 18 from 5 years. This is anticipated coming into force in 2015.


The Government intends to simplify the regulations and will include the following key changes:

  1. The removal of service provision change.
  2. Removing the specific requirement of notification of employee liability information   although it will specify that the transferor should provide the information in order for both parties to carry out their information and consultation duties.
  3. Allowing employers with less than 10 employees to consult directly if there are no elected representatives.
  4. To allow the transferee to consult on collective redundancy with the staff who are to transfer.
  5. To allow the employee to choose his own level of pension contributions on transfer (subject to the minimum of the scheme rules) and for the transferee to pay equivalent pension contributions to those paid by the  transferor immediately prior to transfer as an alternative to matching the employees contribution level.
  6. To change some of the wording within the regulations to make sure it more accurately reflects the Acquired Rights Directive.

These changes are due to come into force in October 2013


The House of Lords has finally agreed to the implementation of the Employee Ownership  Contracts where an employee gives up certain employment rights i.e. unfair dismissal and a redundancy payment in return for between £2000 and £50000 worth of shares which will be exempt from capital gains tax.  The Employer will be expected to pay for the employee to take legal advice on the matter.  The implementation date for this is 1 September 2013.


Third Party Harassment Liability within the Equality Act 2010 is to be repealed. There has been no date set for this change as yet.


And finally…..   a word about sickness absence.

A new health and work assessment and advisory service is due to be introduced in spring 2014 offering free occupational health assistance to employees, employers and GPs, including an independent assessment of employees who have been off sick for four weeks. The Government also abolishes the statutory sick pay record-keeping obligations.

Is your Performance training under-performing?

In a recent benchmarking survey, 170 businesses with a combined workforce of 453,778 employees provided information about their management training schemes and how effective these were.

A key area of focus was management training in how to address underperformance.  As the table below shows, this was identified as a problem for a significant majority of those 170 companies. Continue Reading

Long Illness, Short Absence – managing the middle ground

A FREE White Paper

A thorny issue for most HR professionals is that of effectively managing absence levels within their organisation.

Case law has shown us that different approaches can be applied to different types of absences.  For example, where absences are short-term, frequent and unrelated to each other the most common approach we see is one of fixed trigger points, followed by a series of cautions that may ultimately lead to dismissal.

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What’s in a Fit Note?

After the much awaited Fit Note arriving on the scene back in April 2010 – has it really helped businesses to manage absence more effectively and improve attendance levels? It would appear that the sick note has not had any positive impact on reducing absence levels.

The fit note was introduced so that GP’s could provide advice on how to facilitate an employee’s return to work. Recent studies have received mixed reviews.  Some employers believing it is a mere ‘box ticking’ exercise for GP’s with little helpful information provided and others believing that employees are signed off as unfit to work when in fact, they may be fit to do some work if adjustments were made.

Despite these results the Government has gone on to gradually introduce the computer generated fit note which will be rolled out across the country over time.

Where the GP has indicated that the employee may be fit to return to work the most common advice GP’s are scribing  is ‘a phased return’ or ‘amended duties’ but without any supporting advice as to what that means in practice – which is of little help to the employer.  A large proportion of my clients have certainly been experiencing this lack of additional information.

Despite any recommendations that are made by the GP, it does not mean that the employer is in anyway obligated to make the adjustment. The aim of this ‘advice’ is to enable the employer and the employee to explore this as a possible route to get the employee back to work rather than remaining off sick for a longer period.

The employer should consider the ‘advice’ and decide whether or not it is feasible to provide the support/adjustment suggested taking into account the impact this will have on the employee’s ability to do his job, the impact on others and the workplace more generally. There may of course be other adjustments that we could put forward to the employee that have not previously been mentioned by the GP or the employee that could enable a return to work. If the employer is unable to provide any adjustments (as recommended by the GP or otherwise) then the employee would have to remain off sick until such a time that they are fully recovered or other adjustments can be made.

BUT, employers do need to be mindful of their duties under the Equality Act 2010 in the case of disabled employees (as defined within the Act). If the employer declines, without good reason, to make an adjustment suggested on the fit note (or otherwise) that could enable the disabled employee to return to work, the employer may be in breach of its duty under the Equality Act.  If in doubt… take advice!

Overall, the introduction of the fit note hasn’t, it would appear hindered the process of getting our employees back to work but it hasn’t necessarily helped much either! We understand the Government is aiming to provide more guidance to GP’s on the use of Fit Notes as well as offering an independent assessment service to help employers.  The jury is out on whether this will help employers to make more informed decisions about reasonable adjustments and continued employment of their long term sick employees.  Watch this space……

If you would like to share your views and experiences with us about the effectiveness of fit notes and managing employee absences please leave your comments.

If you would like advice or management training on managing sick employees back to work or you are considering dismissing, please get in touch.

Suspension – Is It A Knee-Jerk Reaction?

Are you jumping the gun and suspending your employees too soon when allegations of misconduct arise?

It is common practice for employers to automatically suspend employees if they are being investigated (or disciplined) for acts of serious misconduct.  This common practice is based on an understanding that if an “accused” employee is not suspended, this would seriously weaken an employer’s  case for a sound dismissal, if it got that far.

Recent case law, however, has questioned this knee-jerk reaction to serious acts of misconduct.  Employers are expected to consider carefully whether or not suspension during the disciplinary process is appropriate.

If suspension is an automatic response to serious allegations it could leave you trying to defend an unfair (or constructive unfair) dismissal claim for breach of trust and confidence because arguably such action could cause damage to an employee”s reputation and wellbeing.

Employers are expected to consider what alternative measures, if any, should be taken before imposing suspension on an employee.    Alternative measures could include temporarily relocating the employee, moving them to a different shift pattern or assigning different duties that remove the possibility of any further misconduct occurring whilst the current matter is dealt with.   Any dgfev online casino alternative measures should only be taken with the employee’s agreement and should not be imposed.

When deciding whether to suspend or not, the focus should be on whether there is a real risk that the conduct in question will be repeated and/or whether there is a threat to the integrity of the investigatory process.

In some circumstances, it may be necessary to suspend an employee for a short period pending the outcome of the investigation.  However, this should be as brief as possible and should be kept under review.  The employee should be kept up to date with how the investigation is progressing, the anticipated time frame and re-assurance should be given that suspension is not considered a disciplinary action.

The type of factors to consider when deciding whether to suspend or not include:

• Have working relationships broken down?
• Is it serious misconduct?  And if it were proven, could it result in summary dismissal?
• Do you think the employee might deliberately cause damage if he/she remains in the workplace?
• Do you think their presence in the workplace might prejudice the investigation in some way?
• Has the employee acted in a violent manner or threatened violence?
• Has the employee been accused of serious bullying or harassment?
• Is the matter being investigated highly sensitive?

A decision to suspend an employee should be taken only after careful consideration of all the circumstances and the employee should be provided with an explanation as to why suspension was considered necessary.