Employment law advice for employers

Posted 28th May 2014

Written by Newtons Media Team

In terms of employment law, it’s essential to make sure that as, a business, you’re fully compliant, have HR procedures in place and are confident that should any claim arise, you’ll be able to deal with it both quickly and efficiently.

Of course, in the perfect world of ‘HR happiness’ you wouldn’t have any claims lodged against you, but sadly, the harsh reality is somewhat different.

For example, in cases of unfair dismissal, the onus is on you – as the employer – to prove you had a valid reason for the dismissal and that you acted reasonably in all circumstances. You must also be able to prove consistency in so far as you didn’t dismiss an employee for something you would ordinarily let other employees do (e.g. work from home or on flexible hours) and you must always conduct a full investigation prior to any dismissal.

Save for exceptional circumstances, e.g. where an employee has been violent or displayed threatening behaviour that would reasonably result in an instant dismissal for the safety of other employees, it is also advisable to give notice of the dismissal in writing, clearly stating the reason(s) for your decision. This is a compulsory requirement for any employee having had completed two years’ service with your company.

Regardless of the reasons for an unfair dismissal, it’s always advisable to keep full notes on any interviews or discussions that take place concerning your decision, in case the employee in question decides to appeal or make a claim. This might also include any appraisal notes, any staff records and most certainly any statements leading up to the dismissal.

Another hot potato in terms of employment is harassment, since this can have quite an ambiguous definition in terms of what constitutes it. The legal definition for harassment is “…unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.

Of course, this definition will be interpreted quite differently between each employee and it’s therefore essential to have a robust policy on harassment in the workplace.

There are a number of simple steps an employer can take in order to tackle such work related issues. Aside from specific policies on workplace ethics, another step is to adopt a formal complaints procedure, which may assist in dealing with matters amicably at a much earlier stage in the process. Also remember that all parties to a complaint have the right to be accompanied by a representative of their choice (legal or otherwise) and this is set out within the Employment Relations Act 1999. In some cases, of course, it will be possible to settle matters informally, particularly if the party being complained about was unaware that his or her behaviour was causing offence to another person. Failing that, another option might be to refer the complainant for counselling or mediation. The key message for employers is that each and every complaint must be treated sympathetically, confidentially and with compassion.

Any employer should always remain mindful that an employee has the right to refer their case to a tribunal – for example, over unfair dismissal or sexual harassment. This may result in you having to pay compensation to the aggrieved employee and/or giving them their job back. This procedure will ordinarily involve ACAS (the Advisory Conciliation and Arbitration Service) who will contact you directly. In this instance, it is important to adhere to any deadlines which may be imposed as part of the claim and ordinarily, you will be permitted a period of 28 days within which to respond to any claim. Should you fail to do this, the tribunal remains at liberty to settle the claim as deemed fit without your input, so it’s important to comply with any requests you may receive.

Another means of drawing any complaint to an amicable closure is to enter into a Settlement Agreement. These are entirely voluntary and came into force on 29 July 2013 in an attempt to end an employment contract on agreed terms. Again, as an employer, it’s always advisable to mention this procedure in your company’s standard policies, since they constitute a legally binding agreement and cannot then give rise to a further claim being made by the complainant, or employee.

In essence, however, the message on employment law is clear. If you own a company, you need to protect both it – and yourself – against any potential claims, and the best way to do this is through a clear understanding by both parties of what the company policies state and how you intend to deal with any claims should they arise.

Clarity is always a key requirement of any legal process, so be sure that you’re clear on what you expect from your employees and also, what they should expect from you.