If you know all about #GDPR, you probably don’t need to read this article!

Like me, you have probably been plagued over the last six months with offers of reports, consultancy services, webinars and conferences about the apocalyptic effects of GDPR (General Data Protection Regulations) and the prospect of €20 million fines.

I’m no expert on this (that’s a disclaimer!), but the truth is, there is nobody who knows all the answers yet, if they ever will.

There are still differing opinions about the impact of these regulations which stem from the EU and will be implemented (by 25 May 2018) into UK law when the Data Protection Bill finally passes through parliament.

The purpose of this blog is to set out the essentials that need to be carried out in a typical SME organisation (large organisations are probably well on with all this) in regard to the use of employee data.  The same principles will apply to other personal data, for instance on customers or clients, about which you may need more specialist advice.

There is lots of ground I won’t cover, but if you want an overview, this is my favourite from the European Commission, and if you want more detail, perhaps you are an HR professional responsible for this stuff, try this 35 minute webinar.

The underlying message is that data protection needs to become proactive, and to help you do this, here are three ‘musts’ and two ‘shoulds’:-

  1. A ‘privacy statement’ ‘must’ be given to employees whenever you collect data.

    At the moment you probably rely on a data processing statement in your contract of employment. This will not be sufficient under the GDPR which requires you to tell data subjects about the lawful basis for using the data (with employee data this is usually for compliance, performance of a contract or because of your legitimate business interests – which you must outline), your retention policy, and their rights in relation to their personal data. etc.

    You can provide this notice via your website, intranet or Staff Handbook, but as many organisations already do with Health and Safety, it is advisable to make specific reference to it when collecting personal data and obtain evidence that it has been read.

    You may also want a shorter version for use when recruiting.

  2. Responding appropriately. You ‘must’ keep a record of any personal data protection breach, including its effects and remedial action you have taken.  Even the loss of a mobile phone or laptop could amount to a breach.

    It may need recording.  It will need reporting to the Information Commissioner within 72 hours if it’s likely to cause a risk to the rights and freedoms of individuals, and where the risk is regarded as ‘high’, individuals must be told.

    You must also respond appropriately to subject access requests (SARs), the right to be forgotten, and requests for corrections or restrictions etc.

  3. You ‘must’ make sure you have adequate contracts with third party data processors (pay bureau and recruitment consultants being two of the most common). You will want assurances that they only process data you provide to them on written instructions, that staff involved with your data are subject to confidentiality agreements, and that they have adequate technical arrangements to ensure compliance.

    Sample contract clauses have been promised by the Information Commissioner’s Office (ICO).

  4. Underlying much of the GDPR, is a new data protection principle of ‘Accountability’. Can you demonstrate that you take appropriate steps to protect the personal data of employees and comply with the requirements of the regulations.

    You are going to have difficulty demonstrating this if you have don’t even know what personal data you use.  You ‘should’ carry out a personal data audit to help you demonstrate compliance.

    You will probably want to record what, where it comes from, who handles it, where it is stored, and two technical points, what is the lawful basis for using each item and how long do you keep it (retention).

    An audit is not compulsory, but without it you’ll have trouble doing some of the other things you have to do.  A couple of sides of A4 may well do this for many SMEs, and it should enable you to identify risks which can be mitigated.

  5. You ‘should’ appoint a responsible person (it might be you!) or know where you can go for advice when you need it. If your core business involves data processing, or you are involved in large scale processing of the special categories of data, then you must appoint a Data Protection Officer.

    If this is not the case, you may find it useful to have one person responsible for data protection issues, with a key role to educate and train other staff, but this will not be a requirement for many small businesses.

Is that all there is to it?  No, but an audit, a well drafted privacy statement, and regular Board level reviews and staff training/communication are likely to ensure that most SMEs who are only processing employee personal data will be able to show compliance with the 6 + 1 (Accountability) GDPR data processing principles.

Yes, there is much more including how you deal with transferring data outside the EU, responding to records of criminal convictions, automated decision making, personal data relating to children etc.  These are unlikely to be issues for most small businesses, so complex policies and procedures are probably not necessary.

If you want to sort all this out yourself, there is a self-assessment tool available on the Information Commissioner’s website, although as you might expect, it’s stronger on questions than it is on answers.

You may have also noticed (!) that there are plenty of consultants like ourselves, ready to assist.

Finally, what about those €20 million fines we mentioned at the beginning, and nearly every other communication about the GDPR has headlined?  There have been very few data protection convictions to date, and the evidence is that the ICO is not seeking to be over zealous in the future either.

So, this is not an issue to be driven by the prospect of fines or criminal convictions.  Its far more positive to see it as an opportunity to review systems and assure yourself that the data you are collecting is necessary.

We live in an age where people are becoming increasingly conscious about the security of their personal data and taking these matters seriously will increase employee confidence and enhance your employee brand.

 

Ken Allison | 05 March 2018 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

 

How to deal with a poor performer in 50 tweets…Part 4

This blog (originally published in March 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

These are the final tweets in this series of 50, and deal with how to short circuit a performance procedure where the parties are prepared to agree to a mutually acceptable alternative.

Part 1 in this series of tweets dealt with some informal motivational tips, and Parts 2 and 3 covered a typical formal procedure.

Since many people do not want a dismissal for poor performance on their record, they often leave before any procedure is complete, but in some instances, particularly in small organisations, it may be in the interests of the organisation to encourage them to leave more quickly.

In legal terms this is not risk free, so, ‘don’t try this at home’ without HR or other appropriate professional assistance!

UK law currently provides for disputes between employers and their staff to be resolved using a ‘compromise agreement’, and at the present time (Spring 2013) the Government is proposing to introduce new ‘settlement agreements’ which will be simpler and easier to use.

They will be ideal for situations where an employment relationship is not working out due to conduct or performance, but will not be suitable for more complex issues, for instance, where there are discrimination or ‘whistleblowing’ issues involved.

We have seen earlier in this series that everyone has the right not to be unfairly dismissed providing they have been employed for the ‘qualifying period’ (two years or more if they started work with you on or after 6th April 2012).

Put simply, this means that you must have a fair reason for dismissing someone (and poor performance usually is regarded as fair) and you must behave reasonably, i.e. follow a fair procedure, such as is outlined in Parts 2 and 3 of this series, when you dismiss them.

There are circumstances where the length of time this will take is unacceptable from a business point of view, and circumstances where the procedure will be undesirable from the employee’s perspective.

For instance, an employee with long and loyal service may no longer be performing adequately, and it may be more appropriate to find a solution that enables them to leave with some dignity and without having to be put through an elongated process.

It’s only really safe to do this when you are contemplating dismissing someone, and this may mean that it is not worth doing.  If the lack of performance is genuine and you have got as far as Stage 3 in our procedure, there may be little point in not simply completing the process.

So, in many instances, employers want to offer staff an alternative route out of the organisation at an earlier stage.  This may not be quite so safe, but the fact there is not a lot of case law on this topic, suggests that it usually works!

Here’s a series of steps which might lead to an alternative mutually acceptable solution, but remember, don’t do this without appropriate advice from a HR professional or lawyer.

Tweet 37/50: Discuss your performance concerns with the employee and tell them that you intend to start a disciplinary process which would start with a hearing and could lead to them getting a warning.

Tweet 38/50: They will be given the opportunity to improve, but if they cannot improve after being warned, it may lead to their dismissal.

Tweet 39/50: Indicate that if they would prefer to have a ‘without prejudice’ (wp) conversation regarding a mutually acceptable alternative termination arrangement, then you would be happy to have that conversation.

Tweet 40/50: Give them time to think about the situation, pressurising them may lead to a constructive dismissal claim.

Tweet 41/50: If they agree to proceed on a wp basis there and then, you can proceed but take the precaution of having another senior person present to ensure that there is no subsequent argument as to the nature and content of the discussion.

Tweet 42/50: Emphasise that you would be happy to give them the opportunity to improve, but if they don’t think they can, or they don’t want to go through a series of warnings, you are happy to propose an alternative.

Tweet 43/50: Indicate that an alternative approach would involve them signing a compromise agreement.  This would prevent them from bring claims against the organisation in the future, but in return for this they would receive an ex gratia payment.

Ex gratia payments are not always made, but are usual.  There may be some circumstances where it is simply agreed that the individual departs with pay in lieu of notice.  This may be the case, for instance, where the person’s performance is bordering on negligence, and they are fortunate to be given the opportunity to leave without a dismissal for poor performance on their record.

Tweet 44/50: Make a proposal with regard to the ex gratia payment.  You may have some negotiation about this and other issues such as notice payments and outstanding holidays etc.  Any settlement above their contractual rights would normally be tax free for the first £30k.
Tweet 45/50: If they do not want to go down this route immediately, you should proceed with the invitation to the disciplinary hearing, but verbally indicate that the offer of a wp discussion (or the offer if you have got as far as making one) is on the table for a few days.

Tweet 46/50: If the offer is not accepted, have your hearing and if justified issue a warning (or dismissal if you are at that stage) in line with your contract/staff handbook, or follow the procedure outlined in Parts 2 and 3 of this series.

Tweet 47/50: There is nothing to stop you leaving the door open on the wp conversation, regardless of the fact that you are commencing with the disciplinary/performance procedure.  But don’t leave it indefinitely; they’ll be little to gain from reaching an agreement after you have expended your time and energy on a fair process – assuming that there are not other issues such as discrimination or ‘automatically unfair dismissal’ involved.

Tweet 48/50: As ever, you should draft written notes of any meetings, and mark all correspondence based on the wp discussions as ‘Without Prejudice and Subject to Contract’.

Tweet 49/50: If they do agree to a deal, you will need to confirm the details in writing, and arrange for a compromise agreement to be sent to them.

Tweet 50/50: You will have your own, and it is normal to make a contribution to their, legal costs.  Their solicitor may well come back to you on details of the proposed agreement, but after agreement is reached it will be for you (or your representative) to finalise the compromise agreement and send it to the employee for signature.

Tweet 44/50 may take a few meetings, and it is quite normal in these circumstances to agree a mutually acceptable termination date, and for the person to leave before the agreement is signed.

In this series of 50 tweets we have suggested informal, formal and alternative approaches to dealing with a poor performer.

The various steps should be seen as a model/sample approach, which cannot in any way be taken as a substitute for seeking professional advice on any particular situation.

The approach is offered as a way of encouraging the tackling of performance problems in the workplace, and to give managers confidence to initiate conversations about their concerns.

Above all, it should be remembered that prevention is better than cure, but poor performance can be an infectious disease that should not be allowed to spread!

Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

How to deal with a poor performer in 50 tweets…Part 3

This blog (originally published in March 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

In Part 1 of this series of tweets I looked at 10 tips for encouraging good performance without having to resort to formal procedures.

Part 2 explored ‘Stage 1’ of a procedure that might be used when someone fails to respond to the motivating behaviours of their manager, and they need to understand that the continuing level of performance is not going to be tolerated indefinitely.

In this final part of this series I will look at how to continue with a procedure that, as far as it is possible, will ensure that if it comes to it, any dismissal will be fair.

You may have got this far without any specialist HR assistance, but if this is the first time you have used such an approach, you would be well advised to seek some HR or legal advice for the first time you do this.

When dealing with poor performance under a disciplinary or capability procedure, or just by following the steps in these tweets, it’s important to focus on improving the performance.

Giving somebody a warning should not be designed to encourage them to leave, it should be designed to encourage an improvement in the performance. If that’s achievable, it’s a much more cost effective solution than somebody leaving.

So, on with our last 20 tweets, and what would normally be described as Stage 2 of the procedure!

Tweet 31/50: Start again at tweet 16 – as modified below!

Meet with them and let them know that since the previous warning has not resulted in the required performance improvement, you will now have to move onto the next stage.

    Let them know that you want to discuss the situation at a meeting that may lead to a further warning. You will confirm the details in writing

Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 2’

Confirm ‘Meeting 2’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied. There are lots of useful templates for letters to deal with this type of process at http://www.acas.org.uk/index.aspx?articleid=1439.

Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.

If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.

‘Meeting 2’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You should be concentrating on the performance of the individual since ‘Meeting 1’, try not to dwell on stuff from further back!

If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.

It is normally recommended that you have an adjournment before making a decision.

Assuming you decide to proceed with another warning, reconvene if you have adjourned and, deliver a warning (you can call it a second warning if that is what your procedure calls it).

Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.

Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Remember that if there is insufficient improvement this time, this may lead to the termination of their employment, and they need to be told this.

Tell them everything will be confirmed in writing and advise them of any right to appeal.

As last time, try to end on a positive next step. ‘I’m going to arrange for somebody in the Finance Team to sit down with you and see if there is a better way of organising the way you are keeping your records’.

Confirm everything in writing!

Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.

You will have just completed ‘Stage 2’, what in many organisations will be called a ‘second written warning’.

So now things are getting serious, and the process so far may have taken you a month or two.

Tweet 32/50: Surprise, surprise, its back to Tweet 31/50 above, but this time around things will be a little different.

Adapt the bullet points above to reflect the fact that a possible outcome of this ‘Stage 3’ is that the employee could lose their job. You will need to review the situation thoroughly, and this time round you definitely will need to adjourn before you make your decision.

Tweet #33/50: Assuming you decide to dismiss (another option could be to extend their review period) tell them they will be dismissed and do it face to face. This will usually be with immediate effect with their pay in lieu of notice (check on the contractual and tax implications of this), outstanding holiday pay and compensation for any other benefits (Company car etc.) they are losing. Everything will be confirmed in writing and advise them of any right to appeal.

Tweet #34/50: Depending on the individual’s contract, you may decide to ask them to work out their notice (very unusual for poor performance situations) or put them on ‘garden leave’ in order to preserve any restrictive covenants – take some advice!

Tweet #35/50: Confirm everything in writing!

So, there we have it. How to deal with a poor performer in less than 50 tweets. So where have the rest gone?

They’re in Part 4, which covers how to arrive at an alternative solution that does not involve the need to follow this process which can often take two or three months, and be difficult for both the employee and the manager.

Tweet 36/50: Read on, the rest is available now!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

 

How to get rid of a poor performer in 50 tweets…Part 2!

This blog (originally published in February 2013) is being re-posted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

In Part 1 of ‘How to get rid of a poor performer in 50 tweets’ I explored some tactics for avoiding getting as far as thinking about having to dismiss someone who is not performing.

Parting company with someone is expensive and time consuming, but nonetheless, sometimes necessary.

In the UK, where everyone has the right not to be unfairly dismissed once they have accrued the ‘qualifying service’ of one or two years service (the law changed on 06 April 2012), anxieties about falling foul of the legislation can prevent managers taking decisive action when an employee is failing to respond to concerns about their performance.

‘It will take too long’, ‘HR won’t back me’, ‘they’ll accuse me of harassment’ are frequent concerns.

The main thing to remember is that the law seeks to strike a balance between the employer who needs staff who can do their job, and the individual who needs to be treated fairly (told clearly, given the opportunity to improve, warned etc.).

Essentially, much of this process of ‘fairness’ is covered in the ACAS Code of Practice 1: Disciplinary and grievance procedures, (pick up an A4 ‘mindmap’ aide memoire) and many organisations will have their own procedures for dealing with this sort of issue.

If the employee you are dealing with does not have the ‘qualifying service’, you may decide not to follow this sort of procedure, but before you do that, check out ‘Has it really got easier to dismiss employees’.

Here I deal with the process for dealing with a poor performing employee who has the ‘qualifying service’ and has not responded to your informal efforts to improve their performance – see tweets 1 to 10!

Tweet #11/50: It’s the job of managers to set and uphold standards. Employees must be told what the standards are. You will need to be able to demonstrate that you have fulfilled your responsibilities in terms of providing any appropriate training if the employee is being asked to do something new, or if it is something that they could not have reasonably have expected to be able to do.

Tweet #12/50: Don’t be afraid of saying ‘this is how I want it done’. The ‘I’ word is very powerful, avoid blaming ‘the Company’ or ‘my boss’.

Tweet #13/50: You can move the goal posts, as long as you behave reasonably when you do this. Change is an accepted fact, and Employment Tribunals (ETs) accept that the content and standards of a role may change over time. How a job is performed, or the standards required are rarely contractual, but employers do owe employees a duty of ‘trust and confidence’ which in this context would mean, amongst other things, that changes should not be introduced without time to adapt, or as a means of making life uncomfortable for staff.

Tweet #14/50: Make sure that the problem really is the individual’s capability to do the job. If they have the skills, and are just not using them, then that could be poor conduct, and not poor performance.

So, let’s now assume that we are dealing with an employee who is not performing adequately, has not responded to our informal motivation (Tweets 1 to 10!), and so now we have to put things formally in order to ensure that they take the issues more seriously, and that we have evidence of a fair process should we not be successful in improving their performance.

Tweet #15/50: Write notes on your final ‘informal’ discussion – the one before you start to use the language of ‘warnings’. Writing notes during a discussion usually has a negative impact on the atmosphere, so you won’t want to be doing it at every meeting. You will, however, benefit from evidence that you tried to tackle the performance issues informally. You can write notes after a meeting (ETs accept contemporaneous notes as evidence, and this usually means written during a meeting or within 48 hours afterwards). In any case, it will be useful to have informal discussions confirmed in writing.

Tweet #16/50: Meet with them and let them know that since your informal discussions have not resulted in the required performance improvement, you will now have to move onto more formal action. Don’t worry if you do not have an organisational policy that covers this situation (much to a lot of people’s surprise, the law does not require you to have one), it is what you actually do that matters.

Tweet #17/50: Let them know that you want to discuss the situation at a meeting that may lead to a warning, and that you will confirm the details in writing. Keep your eye on the ball here. Your goal should still be to get the performance improvement you are after. We will call this ‘Meeting 1’.

Tweet #18/50: Confirm ‘Meeting 1’ in writing and make it clear what your concerns are about. As well as this, deal with domestic details (time, place, who will be present etc.) and you should include any documentary evidence to which you will refer and advise them of their right to be accompanied.

Tweet #19/50: They will need to know that the meeting could result in a warning – in most instances this will be referred to as a ‘disciplinary warning’, but some organisations have separate procedures for performance issues where it may be called something like a ‘performance improvement note’.

Tweet #20/50: Avoid unnecessary delay before meetings, but do give enough time to prepare. Usually, unless the issues are very complex, a couple of days may be adequate time for preparation, particularly when there have been extensive informal discussions. Your procedures may require a specific notice period for a meeting – typically 5 or 7 days.

Tweet #21/50: If they ask for someone to speak in support of them (a witness), you will have to give the matter some consideration. You can ask them to get their witness to write a statement, rather than attend a meeting, but, in any case, employees rarely do this for performance issues. It is more common when you are dealing with poor conduct.

Tweet 22/50: At ‘Meeting 1’, explain the issue (the performance shortfall and its impact), outline the evidence, hear what they have to say, and thoroughly discuss, before making your decision. You will want to avoid over formality at this stage, but you might find our ‘Handling Disciplinary Hearings’ checklist to be a useful guide.

Tweet #23/50: If they have brought a companion with them, check if they have anything they want to say. They have a statutory right to ‘address the hearing’.

Tweet #24/50: It is normally recommended that you have an adjournment before making a decision, but this is probably unnecessary for ‘Meeting 1’. ETs have accepted that formality is less important with performance issues than it is with conduct. An adjournment is probably only necessary if the employee introduces things that have not been said before, and that need further consideration.

Tweet #25/50: Assuming you decide to proceed with a warning, reconvene if you have adjourned and, deliver a warning (you can call it a first warning if that is what your procedure calls it).

Tweet #26/50: Explain how you have arrived at your decision, demonstrating that you have heard any points that they have expressed.

Tweet #27/50: Clearly confirm the performance issues, the standards you are looking for, the review period, additional support that might be available, and the consequences of the improvement not happening. Tell them everything will be confirmed in writing and advise them of any right to appeal. Most organisations allow appeals after any disciplinary action, but some only allow it after higher levels e.g. second or third.

Tweet #28/50: End on a positive next step. ‘So I’d like you to arrange to spend a few hours shadowing Joe who is good at cold calling, and see how he does things, then we’ll meet next week to review that and talk about how to improve X and Y’.

Tweet #29/50: Confirm everything in writing! The law does not require you to do this (and even the ACAS Code of Practice only says ‘it is usual’), but a failure to do this may make a case difficult to defend in front of an ET.

Tweet #30/50: Make sure there is regular support during any review period – it will help ensure that the employee takes your concerns seriously.

So, here in Part 2 we have completed the first stage of a reasonable procedure for dealing with poor performance where an individual has failed to respond to informal encouragement.

In many case there is no need to progress any further. The individual either improves or leaves!

In Part 3 we will look at completing this procedure, and also the alternative approach of agreeing an alternative mutually acceptable termination arrangement which in many instances will avoid the need to put the individual through an elongated procedure.

Watch this space!

All of these ideas are regularly explored in our employment law and http://www.paradigmpartners.co.uk/performance-management.htm courses.

Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

The end of compromise agreements!

This blog (originally published in July 2014) is being reposted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

July 29th sees the demise of the compromise agreement, but don’t panic, they are simply being renamed ‘settlement agreements’.

Over recent months we’ve had a lot of questions on our helpline or at training events and presentations about this much-heralded change.

It was forecast to be implemented in ‘late summer’, so obviously the Department for Business Innovation & Skills knows something about how long this hot spell is going to last. To my surprise they announced about a week ago, that late summer was going to be 29th July.

A key question on some people’s minds has been whether it has been worth putting off a discussion which may lead to a termination of employment until the changes take place.

The answer to this question has been, that not a lot is changing, so that in many cases it has not been worth waiting. The change does, however, make a difference to the part of the process that most employers find difficult, namely, initiating the conversation.

Up until now, it has been necessary to have a ‘without prejudice’ conversation, and strictly speaking these are only possible where there is an existing dispute between the parties.

Exceptions to this requirement include straightforward dismissals of employees who have not accrued the qualifying service for an unfair dismissal claim (see how to handle these situations) or situations where an employer is making a settlement payment that is sufficiently generous to prevent a Tribunal claim.

If conversations are genuinely without prejudice, then they usually cannot be quoted in Court or at a Tribunal.

As of 29th July, providing there is no improper behaviour (such as a threat to dismiss if you don’t agree) an offer to end an employment relationship on agreed terms will not be quotable in an unfair dismissal claim.

This should mean that it will be possible to have a more straightforward conversation without the ‘war dance’ of ensuring that it is ‘without prejudice’. This, in turn should prevent aggrieved employees resigning and claiming constructive dismissal, which has been the main fear in the past.

‘Things are not working out, so I’d like to discuss a deal with you that would enable you to leave if you wanted to with a settlement payment’ should be become possible.

So, is it really becoming much simpler? I’m afraid the answer is probably no – there are still issues to look out for:-

1. All the other conditions that we associate with compromise agreements remain the same for settlement agreements. Principally, the final agreement has to be in writing, and the employee has to have legal advice from an approved person (usually a lawyer).

So agreements of this nature are not likely to become less costly to implement, which was one of the hopes when the Government first announced these proposals.

2. Discussions will still be quotable (unless they comply with the terms of being ‘without prejudice’) where dismissal has already taken place, or where there is discrimination, automatic dismissal or ‘whistleblowing’ involved.

3. The new Acas Code of Practice on Settlement Agreements suggests that employees should be given at least 10 days to consider an offer. To give less, may constitute ‘improper behaviour’.

4. The ACAS code recommends (although it does not require) that companions should be allowed to attend pre-termination negotiations.

We will have to see how all this works out in practice, and in order to avoid being an early case in front of a Tribunal, many employers will probably prefer to stick with trying to ensure that a conversation is properly ‘without prejudice’.

There is currently very little case law about ‘without prejudice’ discussions in straightforward terminations which are genuinely to do with poor performance, conduct, attendance, or issues such as relationship breakdowns.

This suggests that initiating conversations are not as difficult as is imagined. It is therefore likely that the main impact of this change will be in changing employer confidence, and so issues may be tackled more directly rather than being avoided.

Together with other 29th July changes such as the introduction of Tribunal fees (subject to the judicial reviews being sort by Unison and others), and the capping of unfair dismissal awards to the greater of a year’s salary or £78,600, we may see greater confidence to tackle issues, and less Tribunal claims.

We shall see!

Ken Allison | 27 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!