Each year HRDPS deals with thousands of questions which are put to us by delegates on our public and in-company courses and come to us through our consultancy channels. This year we thought we would publish some of them for members of HRZone, so here are the ten most common issues raised by our clients.
Job references
HR and Payroll departments frequently receive requests for references on ex-employees on forms that ask specific questions. “What should we do” clients have often asked us “if there is something about the ex-employee that a potential employer should know but is not asked for in the request?”
Well, the legal principle is quite simple. If you give a reference you must not mislead the reader with either what you include or what you omit. You therefore have three options. First, unless it is a requirement in law or of your sector regulator that you provide references, or unless you traditionally do give references, you may refuse to respond to the request.
Second you may reply to the questions asked but add any additional information that you feel a potential employer should know, taking care to check any facts and to show clearly what is fact and what is opinion.
Third, if you choose as a matter of company policy to supply only limited information, make that clear in your response by stating, for example, “The company provides only dates and nature of employment of its current and past employees, therefore we inform you that Mr Smith was employed as a Storeman from January 1999 to August 2004.” These options apply whether the request for a reference comes as a form or as an open letter.
Interview notes
We were contacted recently by a client who had received a phone call from a candidate she had rejected for a job, demanding to know why he had been turned down. “Am I obliged to give the reasons?” she asked, adding “He seemed quite irate!”
The answer we gave was “No, but take care. Although he has no right to demand a discussion with you, he certainly has the right to see and take a copy of your interview notes.” Make sure therefore that any notes you make about candidates during or after the interview are facts, or your assessment of the candidate’s competencies in relation to the needs of the job.
Nevertheless you could treat the request for an explanation not as a challenge but as an opportunity to point out gently the candidate’s apparent weaknesses and how they might improve interview performance. That should make the candidate feel better and demonstrate that you are a caring person and employer.
Business transfer
The Transfer of Undertakings (Protection of Employment) Regulations have continued to bother our clients – and our own staff. “Terrible TUPE” is what our consultants call it! One client in particular said that he was selling his business as a going concern.
A group of his employees had decided that they did not want to work for the new owner and could not be forced to do so, therefore the business transfer, governed by TUPE, effectively dismissed them and they wanted compensation. We had to explain that TUPE does not cause dismissals, but on the contrary prevents them. In this case it guaranteed that the employees transferred automatically to the new employer with their contracts virtually intact.
Rather than dismissing them it protected their employment. If they chose not to work for the new employer they would be in the same position as someone who refused to work for a new manager – they would have resigned and be entitled to no compensation.
Confidentiality
We were running a course on a client company’s premises earlier this year and during the break were alarmed to hear a group of managers discussing the domestic arrangements of some of their employees. The information was fascinating but clearly had been given at recruitment interview. As soon as the break was over we had to explain to the managers that this information was held by the employer in confidence and should be revealed to other executives and employees on a strict need-to-know basis only.
The managers’ interesting break-time chats were in fact clear breaches of data protection legislation which could have got the employer – and them personally – into big trouble with the law. So make sure that all your staff are aware of this.
Extended holidays
More and more people seem to be requesting long holidays to visit distant parts of the globe – three or six months breaks are becoming typical. The employer is perfectly entitled to refuse permission, leaving the employee with the option of resigning.
Our concern is that employers who do grant permission sometimes stipulate that failure to return on the agreed date will result automatically in dismissal.
Such a dismissal would be unfair. If you do grant permission for employees to take extended leave and they fail to return on the due date, be sure to carry out a full investigation and an appropriate disciplinary hearing before contemplating dismissal. The employee may have good reason for the late return and must be given opportunity to explain.
Smoking breaks
Several of our clients who have banned smoking from the workplace report that smokers go outside when they feel the urge and thus take several breaks during the day. Their non-smokers are now revolting and demanding equivalent breaks.
Surprise, surprise! Well, we have been quick to point out that employers are perfectly entitled to impose a smoking ban and are not required to make special provisions for smokers. The options we have recommended therefore are first, prohibit breaks other than those authorised for everyone. Second allow smokers additional smoke breaks, but require them to work longer hours to compensate for the time lost.
Use of mobile phones
The Human Rights Act is perhaps the most widely misquoted piece of legislation we have to deal with. Quite recently a client who remonstrated an employee for spending too much time on his mobile phone during working hours was told by the employee in question that this was an abuse of human rights! This is not true.
There is no right to spend time on personal matters during work time. You are entitled to ban mobile phones from the workplace and indeed many employers do so in case they interfere with sensitive equipment. But if you feel that this is too drastic, insist that employees use their mobiles at work for brief calls only.
Frustration of contract
Does an employee’s imprisonment automatically end the employment contract by frustration? Probably not, so we advised the clients who raised the question to take care.
Courts prefer one of the parties to end the contract if possible. In the case of imprisonment you need to consider the nature of the offence and the likely length of absence. If the offence is not directly relevant to the job and the term of imprisonment is likely to be short then you should keep the job open. Otherwise you should investigate the matter and go through the disciplinary process either by correspondence or via the employee’s legal representative.
Informal warnings
When is an informal warning not an informal warning? Answer – when it is confirmed in writing. Many people on our courses are surprised to learn this, but it is a recent change in the law. An informal warning should contain the word “warning,” state the standard required, and indicate the likely penalty for failure.
But if you record it in writing such that in future it might be brought out of the file and used against the employee, the law says that it is a formal warning – and of course you have not carried out a formal disciplinary interview. So continue to use informal warnings because they can be quite powerful, but do not put anything on file.
Statutory holiday pay
And finally several clients have contacted us to say that long-term sick employees who have exhausted their entitlement to sick pay have claimed paid holidays during their absence.
The rules can be found in the Working Time Regulations which give every employee four weeks of paid holiday each year. Absent sick employees are not excluded. Therefore if an employee were absent through sickness for a whole year you would be required to pay four weeks’ wages.
If the absence were for only part of the year then you would deduct from this any holiday payments already made in the year. Our advice is to respond to requests for holiday pay as they occur and then check at the end of each holiday year to see whether any absent employees should be paid outstanding entitlement.
What lies ahead in 2005?
No doubt some of the old chestnuts will keep popping up, but we strongly recommend that HR professionals consider two legal issues.
First the Information and Consultation Regulations that will require organisations with at least 150 employees to set up joint information and consultation bodies.
Secondly the possibility that individual employees’ freedom to opt out of the 48 hour week restriction will be abolished. The United Kingdom wants to retain the opt-out but there is strong opposition from some members of the European Union. If the opt-out is abolished, how will you cope?
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