Member Since: 2nd Mar 2008
HR, employment law & training consultant for the Not-For-Profit sector
I am a fully qualified HR and training professional with over 18 years’ post-graduate experience. I am a Fellow Member of the Chartered Institute of Personnel and Development, a qualified Specialist Employment Law Paralegal , & a registered Investors In People Specialist. I have worked in a variety of industries , and now focus mainly in the non-profit sector. I particularly specialise in start-up HR functions for SMEs, including writing all required staffing policies and procedures and staff handbooks, and designing & delivering training for line management and staff on key issues, business & personal effectiveness skills. I'm a regular guest speaker for the CIPD, City Business Library's seminar programme & other organisations, & frequently featured on TV, radio & the press as an HR & employment law expert.
HR Consultant Tara Daynes
My discussion replies
19th Dec 2012
I have known of people who have fibbed about offers & previous salaries in order to get a better deal - it certainly does happen! So you have very little to lose by asking to see an offer letter etc. before making any counter offer. It doesn't have to indicate a lack of trust, just a sensible approach, particularly if you treat everyone the same way & not ask only the ones you are suspicious of! Of course, people aren't obliged to show you anything, but then again you aren't obliged to make them an offer either. So you would just need to make a judgement call if someone is unwilling to provide proof - it does beg the question, why would they refuse if it is a legitimate offer!
5th Sep 2012
Legally, the employment contract is the agreement between the employer & the employee. It is a legal entitlement that the terms & conditions (or 'particulars') of that contract (job title, hours, salary, benefits etc. etc.) are confirmed in writing within 2 months of you starting, but this written statement of terms & conditions is not the contract itself (although it is often referred to as a contract, probably because that is quicker & easier to say!)
When your original fixed term contract finished in March 2012, did you leave for a week or more? If not, then you have continuous service from your original start date - i.e. you are still on the same contract (even though the terms may have changed). If you had an unpaid break for a week or more, then you started a new contract, & they should have provided a written statement of the terms within 2 months. Regardless of whether they did or not though, the employment contract still exists, as you have been working & they have been paying you!
When they changed your days, & also made what was a permanent contract (as agreed verbally) to a fixed term one, they made a change to your terms & conditions of employment. Although they can do this, they can't do it unilaterally - i.e. without consultation & agreement with you. So if you feel that they did not give you sufficient opportunity to consider it or renegotiate the terms, you may have cause for a complaint.
However, if you have continued to come into work & do the job without raising this as an issue, you could be considered to have accepted the contract by your actions, regardless of whether you have signed the written statement of terms & conditions. (The written terms don't have to be signed by either party - this is good practice s it gives a clear record that you have read, understood & accepted it, but it doesn't actually make any difference as to whether the employment contract is valid or not.)
Even with a fixed-term contract, if you have 2 years' service when it ends, you are entitled to statutory redundancy pay. As you started in January 2011 & they intend to finish your contract in December 2013, this sounds suspiciously like a way of avoiding having to pay you a redundancy payment! You are entitled though to written reasons for your dismissal.
I would suggest that you raise these issues with your employer, informally at first, & make it clear that you are aware of your employment rights (even if they aren't!) If you don't feel that they have resolved this to your satisfaction, &/or are treating you unfairly, you can raise a formal grievance internally. You can go to a tribunal for any statutory entitlements that they have not honoured (such as the written statement) but you would need to exhaust your internal procedures first.
29th Aug 2012
They may be unfit to work, but this doesn't necessarily mean they are unfit to attend a meeting. While on sick leave, & presumably sick pay, they are still technically on your time - they are not on holiday, so you do have some say over what they do with that time, as long as you're not making unreasonable demands!
As with disciplinary hearings, sickness reviews etc., they have to make every reasonable effort to attend. You can make it easier for them to attend with a few reasonable adjustments, e.g. having the meeting off-site (even at their home), or by Skype or conference call etc. But if they continue to postpone (at least 3 times), you can have the meeting in their absence - make this clear to them though & offer them the opportunity to put their case in writing to be considered at the meeting, so they can't claim they were not given a fair hearing.
If they are absent with stress that is related to the situation, they may claim that it will be too traumatic an experience for them. But you can offer to mitigate the stressful circumstances in various ways (e.g. changing the location as above, having regular breaks in the meeting etc.). You can also point out that by postponing the meeting, they are prolonging the situation & a speedy resolution would be better for their well-being! As long as you are making every reasonable effort to accommodate their needs, they also have to make every reasonable affort to co-operate. If not, you can go ahead with the process & make a decision that is within your remit using all the available information - if they are limiting this information by refusing to attend, then that is their responsibility if you've done all you can do!
26th Jun 2012
One of the main ways in which a job role can be legally defined as redundant is if '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 or diminished' . So since the majority of the work for this role is no longer done at the original location & has been moved offshore, this sounds to me like a redundancy on the basis of diminished need at that location.
In which case, the jobholder can be dismissed by reason of redundancy, but make sure you follow the correct procedures & redundancy entitlements. That would also involve looking at redeployment options - so is there another role that could be suitable for the employee? That could include, but is not limited to, the 2 days remaining, as this would be a new position. If they don't want a part-time role, maybe there are alternatives available, such as combining those 2 days with another suitable part-time role, or taking on a full time role elsewhere. As you are a small organisation though, that probably wouldn't be feasible, but at least explore it in a bit more detail to show it's been considered.
Hope that helps!
6th Jun 2012
You can include the usual easy-to-measure KPIs such as absence (days lost & incidents), labour turnover, training figures (financial costs as well as time spent), stability index, & even numbers of resolved & unresolved disputes (disciplinaries, grievances etc.) & results from staff surveys (% of positive responses) to measure engagement. But I would also suggest that you include some less tangible but still critical criteria that clearly show how HR strategy is aligned with business strategy. E.g. Return on training investment (do you set learning objectives & evaluate training outcomes?), reward & recognition (what do you spend on rewards & incentives & does it actually make a difference?). You can also use established standards such as the Investors In People framework www.investorsinpeople.co.uk to give you some clear outcomes to work towards - maybe accreditation itself could be something to include in your scorecard!
Hope this helps!
22nd May 2012
Honesty is the best policy, but just make sure you express it in an appropriate way. Don't use judgemental or critical terms (such as 'bad, 'bullying' or 'temper') saying how dreadful it was. INstead, state that there was a poor fit between your boss's management style (which you can briefly but accurately describe as a factual statement rather than a whinge) & the way that you prefer to be managed, & you found it very demoralising rather than motivating. It is important that any potential employer knows not to make the same mistakes, & is aware that if they have a similar management style then clearly the working relationship won't be a good one!
Best of luck with finding a new role :o)
4th May 2012
...in other words, a change that is imposed by one party on the other. I would suggest checking his written statement of terms & conditions (contract doc) to see if there are any clauses relating to changes of T&Cs, or any mobility clauses or similar. It may be that this change has been consulted on collectively (eg through TU reps) rather than individually, & he has somehow missed out on hearing about it. But if it is just a case of them imposing a change of hours without reasonable consultation, notice or justification, then there would be grounds for him to submit a formal grievance, particularly if it causes significant difficulty for him to comply with the new arrangements.
Hope that helps!
4th Apr 2011
With flexible working arrangements, it is difficult to just revert back to the original terms & conditions if the change was contractual. So any change without discussion, notice & agreement would be classed as a unilateral change imposed on the employee. That said, any flexible working arrangement should ideally be on a trial basis for 3-6 months, in case the change turns out to be detrimental to either the employee or the business. Employers are entitled to turn down flexible working arrangements - even if this is retrospectively - but only on a finite list of grounds. These are:
• The burden of additional costs• Detrimental effect on ability to meet customer demands• Inability to re-organise work among existing staff• Inability to recruit additional staff• Detrimental impact on quality or performance• Insufficiency of work during the periods the employee proposes to work• Planned structural changes
So you need to make sure you have a sound business case built around at least one of the above. Make sure that you have fully discussed it formally with the employee, keep a note of the discussions, give consideration to their views as well & document everything. Give formal notice of any changes.
And remember, employees who have a flexible working request turned down have the right to an appeal, so this would aso be the case for having it revoked.
Finally, if you don't already have one, it is worth having a formal written Flexible Working policy that covers all these eventualities & a full procedure!
21st Mar 2011
If you pro-rata something you usually reduce it - e.g. with holidays. So technically if you pro-rata the waiting days you'd be reducing them - so someone who works 2.5 days per week (50%) would only have 1.5 waiting days (50%). Which is actually more advantageous to them! If you are thinking that someone has to be off for 3 of their normal working days (which is what I assume you are referring to), this would mean, for example, that someone who works Monday, Wednesday & Friday would have to be sick from Monday to Friday as waiting days (5 days sick), whereas someone who works just Mon/Tues/Weds would only have be sick from Mon to Weds as waiting days , which is 3 days anyway. So not only would it be inconsistent in effect, some people would effectively be treated less favourably, & I would argue that this would be seen as breach of the Part-time Workers Regs.
If full-time staff are happy with the arrangement as it affects them, then it won't make any practical difference what you do with part-timers - i.e. it is hardly being unfair on full-timers as they are not suffering any detriment! So I would suggest that you treat everyone the same rather than run the risk of a claim under the Part-time Workers Regs.
Hope this helps,
21st Mar 2011
It is all dependant on the wording of your contracts! If the restrictive covenant just says 'after end of employment', then this would cover any eventuality. However, it may just specify certain circumstances, such as resignation or dismissal, in which case other circumstances such as redundancy would not be covered.
That said, many restrictive covenants are unenforceable in practice, either due to being unreasonable or just not worth the cost of pursuing a breach. But since you are closing the business anyway, there is no competition element, so this may restrict any claim you would have. You may want to try to just negotiate a goodwill compromise with your employee, such as a fixed-term small commission or one-off payment, & hope that they do the right thing morally!
Hope this helps,