HR is increasingly the first line of legal defence – so we asked the experts how to respond to the most pressing queries, and how to tell when a case is too hot to handle
It’s a little-known fact, and enough to keep an HR manager awake at night… there are at least 20 types of claim for unfair dismissal an employee in the UK can bring, even if they have under two years’ service. Given the volume of employment law knowledge HR professionals are expected to retain, you’d be forgiven for not being able to recite every one on the list.
“If you look at how legislation has developed since the mid-1990s, the burden has doubled or even trebled in a relatively short space of time,” says Daniel Aherne, head of employment law at EY. “We’ve had the minimum wage, more equality legislation, working time regulations… all good things, but you used to only have to worry about race or sex discrimination and unfair dismissal.”
Recent developments such as the introduction of tribunal fees and early conciliation mean there is less chance of an issue ending up before a judge, but they place more focus on HR encouraging parties to settle disputes amicably. At the same time, there are more and more ways to access legal advice: from downloading policies to using an outsourced legal service. It’s often a cost issue – few employers can afford in-house legal counsel. “We’re seeing a greater commoditisation of legal services,” says Alan Price, group operations and HR director at Peninsula Business Services. “We’re also seeing ‘traditional’ lawyers getting in on this, offering fixed-price monthly retainers.”
Of course, having a clear view of what’s morally the right thing to do, and a long-term focus on building a fair and engaged organisation, will prevent grievances being raised in the first place. But there could still come a time when you need to call in the lawyers. “When we’re approached by HR, it’s usually as a sounding board, to check their view is right. It’s not a sign of weakness, it’s a sign of strength,” says Beverley Sunderland of Crossland Employment Solicitors.
People Management explains how and why common legal queries arise, and considers when HR professionals in the UK should go it alone and when to pick up the phone.
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Family issues
While recent shared parental leave legislation has added complexity to HR’s dealings with family-related legal issues, the relative regularity of queries around maternity, paternity and flexible working mean they should be easy to deal with in-house, says Aherne. “HR directors are far more competent with family-friendly rights than lawyers because it’s their bread and butter. They’re better at handling these conversations: employees don’t want someone quoting the law at them in this situation.”
More complex requests, such as combining keeping-in-touch days with a staggered return to work, or discontinuous shared parental leave, might be worth a sense-check with a lawyer, however. And if you want to deny a flexible working request or renegotiate the terms, it’s worth getting advice, says Tania Goodman, head of employment at Collyer Bristow: “The lawyer can help you find the points at which you can push back.”
Pick up the phone if…
A restructure occurs while someone is on maternity leave, or pregnant. Employers risk discrimination claims if they’re either found to have based a redundancy decision on someone being pregnant or on leave, or because they didn’t follow due process in considering them for other roles. “Exercise caution with maternity leave if you find the role is no longer required,” says Zee Hussain, an employment law partner at Simpson Millar.
Disciplinaries and performance
First things first: get a policy in place that complies with the Acas code of practice on disciplinary and grievance procedures. “If your procedure follows the code, this will go a long way to helping avoid unfair dismissal claims in the first place, or at the very least may prevent increased compensation being awarded in a successful claim,” says Helen Watson, head of employment at Aaron & Partners. Get your policy reviewed by an employment lawyer.
With this sorted, HR should be able to handle the process of dealing with, say, an employee not meeting targets, or a new starter needing their probation period extended.
That said, once someone is placed under a formal disciplinary process, any decision you make could come under scrutiny at a later tribunal, so sounding things out with a lawyer is worthwhile. And if dismissal is on the cards, particularly if the employee has more than two years’ service, that should warrant a call.
Pick up the phone if…
Things might escalate. “Disciplinaries and grievances can be tricky because they have the potential to turn into something more serious, such as a discrimination claim,” says Glenn Hayes, head of employment at Irwin Mitchell. The recent discrimination case won by a dyslexic Starbucks employee is a good example (see page 17). What began ostensibly as a performance issue ended with a tribunal deciding the firm had wrongly given someone with a disability a lesser role.
Sickness and absence
Ill-health at work can be a sensitive issue and, when handling long-term or repeated absence, there are legal landmines everywhere. “Tribunals have sympathy for employees with health issues, even where no disability is involved, and expect employers to take steps to obtain medical evidence. Consult with employees and only dismiss where ‘reasonable’,” says Matthew Tom of Keystone Law.
The difficulty in dealing with absence is treading the line between making reasonable adjustments for someone who is genuinely sick and not tolerating anyone trying to game the system.
Most cases of repeated or long-term absence can be dealt with in-house, providing the appropriate medical evidence is sought and the employer communicates often and openly. A definite time to call in a lawyer is if you decide to withhold wages or significantly change or reduce a role when someone is on long-term sickness absence, says Watson. “You should always seek legal advice before withholding wages, bearing in mind that there is no upper limit on the amount that an employment tribunal may order you to repay,” she says.
Pick up the phone if…
There’s any hint of a claim for discrimination. Not making reasonable adjustments for someone’s illness – whether physical or mental – could lead to a claim, according to Hayes. “This can be tricky because there are lots of different strands – you can directly discriminate, indirectly discriminate, there can be discrimination arising from a disability – and the way you build your defence will depend on what type of claim it is.”
Redundancy and restructure
How you approach a redundancy or TUPE situation will depend on your experience with these matters, says Aaron Hayward of DJM Solicitors: “You might have dealt with a redundancy of two or three people before, but when it’s 400 it’s worth getting advice.” And organisations that often outsource aspects of their business will deal with TUPE issues more frequently than those making their first corporate acquisition.
At the most basic level, it’s important to adhere to the correct consultation procedures and timings, especially in light of the recent ‘Woolworths’ decision on how separate ‘branches’ or ‘establishments’ should consult, and use a lawyer as a sounding board.
“Get advice early,” says Aherne. “Build lawyers into the project plan – it’s time well spent. If there are going to be job losses as a result of the transfer, or significant changes to terms and conditions, that’s when it’s really worth talking to someone.”
Pick up the phone if…
You’re unsure about the selection process. “In my experience, most of the legal issues arise from initial selection decisions,” says Tom. “Who should be in the selection pool? Are the selection criteria appropriate? Who should conduct assessments? Talk to a lawyer before creating any documents – even handwritten notes or emails.” Redundancy decisions can lead to a wide variety of claims for discrimination, so any doubts around the process should be aired with a legal expert.
Serious allegations
There are certain disastrous events that, you’ll be relieved to hear, may only crop up once or twice in your career – anything from a violent assault at a work party to an allegation of fraud in the senior ranks. “This doesn’t always require a lawyer,” says Aherne. “HR professionals are good at gathering facts and seeing what’s going on. But if it looks like litigation, or someone serves you a legal letter, it’s time to bring your lawyers in.”
If the allegation amounts to gross misconduct that could lead to summary dismissal, check this is consistent with the disciplinary policy in your staff handbook or the employee’s contract. “Gross misconduct is not always straightforward,” says Goodman. “For example, if you have a clause that says someone can be dismissed for a ‘serious breach of confidentiality’, this could mean different things in different organisations.”
Tom adds that a quick call to a legal hotline may be beneficial in the first instance, but that “an experienced lawyer can quickly discern between a trivial complaint and something more serious, such as potential discrimination or whistleblowing issues that may need more careful handling”.
Pick up the phone if…
You suspect anything criminal, or anything that could result in a discrimination claim from another employee. If the allegation involves a member of staff blowing the whistle, this is also a sensitive legal area, so you should make the call.
What’s happening with holiday pay?
The landmark Lock v British Gas Trading case, which determined that holiday pay should include commission if it’s a regular element in someone’s wages – along with Fulton and Another v Bear Scotland, which ruled the same for overtime – have led to a rush in enquiries to lawyers regarding the correct handling of holiday pay. And a further case, King v Sash Window Workshop Ltd, had implications for employers where staff have not taken their full statutory entitlement to paid holiday.
The Working Time Regulations specify that annual leave may only be taken in the year it is due. Payments in lieu of untaken holiday are only permitted on termination. But case law has muddied the waters, and an appeal to the King case, to be heard shortly, will consider whether backdated holiday is due if an employee is unable to take holiday for some reason.
Helen Watson, head of employment at Aaron & Partners, says: “Legislation and recent rulings allow for varying interpretations of what should be included in holiday pay. If you are concerned, you should definitely consult a lawyer.”