Looking forward to Spring – yes really. 

This is the almond blossom in our front garden this morning.  Not bad for Manchester in mid-March, although you’ll note, it is raining!

Spring is usually the time when new #employment law is introduced.

This year there isn’t much.  Mostly housekeeping and a few #COVID related things to catch up with.

  1. Firstly the Housekeeping matters include (start dates where applicable):-
    • An extra bank holiday on 3rd June, and the traditional Whit week holiday moved to 2nd. Many contracts don’t require you to grant this extra day, but I’m sure most employers will.
    • Probably the largest single increase in the national minimum wage (NMW) with the headline rate for workers aged 23 and over increasing to £9.50 (April 1st).
    • 25% increase in employers and employee NI contributions from 6th April. Note, the increase does not apply to employees under 21, and apprentices under the age of 25.
    • The Government is asking employers to add a message onto payslips for the first year of this increase to say ‘25% uplift in NICs funds NHS, health & social care’.
    • SSP will be £99.35 per week (April 6th), and Statutory Maternity Pay (SMP) and other family related leave payments will be £156.66 (11th April).
    • A weeks’ pay for statutory redundancy payments goes up to £571 and max award for unfair dismissal compensation to £93,878 (6th April).
    • Certain right to work in the UK checks are going to have to be made on line (April 6th). This change only applies to those holding various biometric residence permits. The system remains the same for others who do not hold these specific documents such as British and Irish passport holders.The change to online checking will be particularly important to you if you are an immigration sponsoring organisation – you could lose your license if you don’t use it.
    • The COVID related concession that allows ‘virtual’ checks’ to be made via video link for those who can rely on a passport, has been extended to 30th September 2022.
    • Following a High Court decision, workers (such as gig economy staff who are not employees) have to be provided with personal protective equipment where there is a health and safety risk. Previously the requirement only applied to employees.
    • Flexible apprenticeships allowing project work with a variety of organisations in the creative and construction sectors are being introduced. Some coverage suggests this is from 6th April, but the press announcement suggests they may already be available.Either way, if you are in these sectors, your first port of call is probably one of the approved agencies – see list.
  2. Covid related developments: –
  • The facility for SMEs to reclaim SSP for COVID related absence ends on 17th March and all claims must be in by (24th March).
  • Eligibility for SSP will revert to being from the fourth day of absence for COVID related absence (24th March).
  • The Government has updated guidance for the ‘clinically vulnerable’, which now says –‘Work from home if this feels right for you – if you cannot work from home, speak to your employer about what arrangements they can make to reduce your risk’
  • About 1 in 50 people are thought to be suffering from long covid according to the Office for National Statistics. The Equality and Human Rights Commission recommends that it is treated as a disability under the Equality Act 2010.The main implication of this is the triggering of the need to make reasonable adjustments such as working from home or adjusted hours.  Since adjustments should help someone return to normal working, they can be timebound.
  • The requirement (in England) to explicitly consider #COVID-19 in risk assessments will be shelved (1st April), and it is expected that in Wales their statutory requirement for a COVID-19 risk assessment will also go.
  • The ‘Working Safely’ guidelines will be replaced (1st April) with new public health guidance – not available yet, but I will update when they are published.
  • Workers are no longer obliged to tell their employer that they have tested positive.

You can take a look at a previous blog to see everything that was expected this year.  It is unlikely that we will see much progress with the large number of promised employment law changes whilst the Government has other preoccupations.

The next time employment related changes normally get introduced will be October.

The list may even be smaller!

Ken Allison | 16th March 2022 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, 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’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Hybrid Working – how will contracts change?

‘What is it we need to change in our employment contracts and policies to reflect the new normal’

……is a question I’ve been frequently asked when recently presenting to groups of managers and directors about maximising productivity and engagement in a hybrid working environment.

I’ve not been a great enthusiast for rushing into contractual changes just because everyone’s predicting that a third of employees will quit if they can’t continue flexible working or that over a million workers at the top 50 employers will not be bought back to the office.

Balancing all this enthusiasm, I have previously commented that home working is not for every job, or for every person, and that under the pressure of Covid we have made it work but it might not be sustainable in the long term.

Add onto this the fact that many jobs cannot be done from home and its a peculiarly middle-class assumption that we all have homes that are suitable to work from.

All this plus the fact that 2.8 million homes do not have internet access, and 11.7 million people lack the necessary digital skills to work from home (Beyond Digital: Planning for a Hybrid World – House of Lords COVID-19 Committee), it’s easy to see that this is not going to work for a sizeable portion of the working population.

Nonetheless, employers are naturally keen to ensure that more permanent arrangements are properly established and that the interests of both the employer and the employee are recognised and codified.  SMEs will be able to take a more informal approach than larger organisations who will need policies to ensure consistency of application across the organisation.

What are you likely to need in terms of contracts and policies if you are keen to facilitate home/hybrid working in some form.

Firstly, assuming you are an enthusiast for home/agile/hybrid (whatever) working, the possible contractual changes you’ll want to consider are :-

  • Arrangements for trial periods, or provisions that allow home working after a successful probationary period for new colleagues.
  • Provisions for ending a home working arrangement if it is not working or business needs change.
  • A new definition of the ‘place of work’ which you have a statutory duty to define.
  • Reserving the right to require home working.
  • Defining flexibility to move home – you may want to insist that home remains within a certain distance from the Company location.
  • Clarity about hours of work. Is it the same as the past, is there some flexibility, defining any core times for availability etc.
  • Establishing responsibility to take breaks and to record hours so that there is no breach of the Working Time Directive.
  • Access to the home to recover equipment or undertake health and safety checks.
  • Requirements to attend the workplace as required from time to time, and the rules with regard to travel expenditure etc. Travel to a workplace is generally a taxable benefit if paid for by the employer, so it is probably best to make it clear that where this happens it is at the employee’s expense.
  • Equipment and insurance issues.
  • Data protection and confidentiality provisions.

Secondly, what about policy changes.  Many larger organisations have already had ‘Homeworking’ policies, and we will probably see these renamed ‘Hybrid Working’ polices.  One of the advantages of a policy is that it enables the employer to keep the content in the contract to a minimum, and have a more flexible policy in a Staff Handbook.

A policy is not mandatory, but if you are going to have one it will help you set more of a tone and define expectations which are not always possible in a contract.

Some of the content will be an expansion of the items above, other issues might include:-

  • Understanding the concept.
  • Defining the characteristics of roles that are suitable for hybrid working.
  • Outlining the personal qualities needed for successful home working.
  • The discretionary nature of any arrangements, but take care, they can’t always be changed back easily, no matter what you say in a contract or policy.
  • Suitable work area and equipment.
  • Personal commitments that may interfere with effectiveness.
  • Working from abroad.
  • How will performance be measured.
  • Health and safety responsibilities – you probably need to address lighting, display screen equipment (see this HSE Checklist), electrical testing, reporting of accidents, and the supply of a first aid kit.
  • Tax, expenses issues.
  • Rules about meeting at the employee’s home.
  • Insurance, lease or mortgage issues.
  • Lifestyle issues, mental wellbeing etc.
  • Relationship between hybrid working and permanent flexible working arrangements

Finally, don’t forget those whose role prevents home working – we are in danger of creating a two-tier workforce.

They might not be able to work from home, but are there other areas of flexibility that could be introduced – the evidence suggests that other forms of flexibility have decreased during the pandemic.  Flexitime, condensed hours, job sharing, term time working, annualised hours are some that can be applied to many roles.

 

Ken Allison | 29 June 2021 | Paradigm Partners | www.paradigmpartners.co.uk

Ken is an engaging trainer and speaker who manages to make his topics, 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’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Is #Priti #Patel a bully?

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It won’t surprise you that the question in the title is not one I am going to get into.

Firstly, just as I would be reluctant to label a child as a ‘naughty child’ just because they occasionally did something naughty, so I am reluctant to label any individual as being a ‘bully’ just because they may have displayed bullying behaviours.

Secondly, the concept of bullying means different things to different people and is somewhat difficult to define.

In a recent CIPD survey 20% of organisations reported an increase in negative conflict such as bullying and harassment in the workplace.  This is not surprising given the current covid related situation with so many people having to work in difficult circumstances.

Bullying and harassment are frequently complained of when employees are put under pressure in some way.  Their work is criticised, they are under the threat of redundancy, or their attendance is being reviewed are three typical examples.  This is not to suggest that it doesn’t also occur because some people intentionally or otherwise seek to intimidate or dominate colleagues.

In Priti Patel’s case, leaked reports in The Times suggest that she told civil servants that they were ‘f***ing useless’, and even the brief findings of the full report by Sir Alan Allan, reproduced in The Guardian, refers to ‘occasions of shouting and swearing’.

What is bullying?

The definition of bullying poses challenges, and I covered the similarities and differences between bullying and harassment in a previous blog about sexual harassment.

There are lots of different definitions of bullying (unlike harassment which has a legal definition in the Equality Act 2010), with the definition by #ACAS as the most frequently referred to

‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.

The Civil Service have their own definition quoted in the report about the Home Secretary’s recent behaviour

‘intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down’.

Interestingly, the Civil Service guidance also makes this helpful comment

‘legitimate, reasonable and constructive criticism of a worker’s performance will not amount to bullying’.

How will I recognise it?

Helpfully, in another publication, ACAS give us a few examples which include

  • someone has spread a false rumour about you
  • someone keeps putting you down in meetings
  • your boss does not let you go on training courses but they allow everyone else to
  • your boss keeps giving you heavier workloads than everyone else
  • your team never lets you join social events

Sometimes physical intimidation can be involved such as when a boss stands or sits on their desk towering over an employee whilst addressing them, or invades their personal space.

Does intention matter?

Priti Patel said ‘I have never intentionally set out to upset anyone’.  Sir Alan’s report acknowledges that the bullying behaviours may not have been intentional and that the Home Secretary was ‘frustrated by the Home Office leadership’s lack of responsiveness’.  But, that’s not really the point, it’s more the effect that is important!

Unlike harassment (which is similar, but on the basis of some form of discrimination), bullying in itself can’t give rise to a claim in front of an Employment Tribunal.  In most cases bullying gives rise to a claim for constructive dismissal, and it is for the Tribunal to decide whether the behaviour complained of was so serious as to breach the implied duty of trust and confidence that should exist between an employee and their employer.

They may decide this in relation to Sir Philip Rutnam’s constructive dismissal claim against Priti Patel after he resigned in February alleging bullying and whistleblowing.

The intention of the perpetrator does not matter (it’s not an excuse).

Being the subject of bullying behaviour can make some people ill with stress/anxiety etc. and give rise to a personal injury claim, and it may even be a breach of an employer’s ‘duty of care’ in health and safety terms, particularly if nothing is done after a complaint.

What do employers need to do about bullying?

  • A clear Harassment and Bullying Policy (and the best will give examples so that employees understand the types of behaviours that are unacceptable) will be important in large organisations, but they are not everything.
  • What will be far more significant will be leaders challenging bullying behaviours, setting an example themselves, and providing guidance to individuals when unhelpful behaviours are observed. Remember, that for some people, it will be unintentional, and a quiet word will ‘nip it in the bud’.
  • Don’t forget that your responsibilities will also extend to events outside work, but that are reasonably connected to work – this could include the pub next door where everyone goes for a drink after work on Friday.
  • Either in work or connected to work in some way, don’t fall into the trap of thinking that if nobody complains I don’t have to do anything. ‘I can’t do anything unless you put it in writing’ never has been an appropriate response in this area.
  • Encourage leaders to be proactive and create an environment where people feel it is safe to raise issues and that their concerns will be treated with appropriate confidentiality.

Above all, remember that colleagues do not perform at their best in an environment where bullying is allowed or condoned.  It rarely gets the best out of people, so there is a cost to the business.

Given the outstanding Rutnam case mentioned above, we have not heard the end of this matter.

For me, it’s provided a nice opportunity to write about something other than covid related employment matters.

Stay safe.

Ken Allison | 25 November 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, 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’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Questions for the ‘New Normal’…. 5 questions I’ve been asked in #CEO groups in the last fortnight.

During the last fortnight I’ve given my presentation, ‘The F Word’, to about 200 #CEOs of #SME businesses, most of whom have been grappling with getting their businesses fit for the future and maximising the benefit of the CJRS to conserve their cash flow as we get the country back to work.

Here are 5 of the most popular questions I have been asked.

1.  If an employee doesn’t want to carry out their role if you bring them back from furlough can you leave them on it?

Not all my answers are so long (!) but this really is an important issue at the moment.

Although not wanting to carry out their role is different from not wanting to come back to work, you can leave an employee on furlough as long as you like and as long as the scheme is available, but just remember that it looks as if from August employers will have to contribute towards the 80% wages costs.

Grappling with the ‘reluctant returners’ is one of the most difficult issues being faced by employers at the moment.  Despite the fact that ACAS say that ‘If an employee refuses to attend work without a valid reason, it could result in disciplinary action’, any action should be preceded with dialogue.

That dialogue should endeavour to address the anxieties of staff, and in particular, the steps you have taken to make the workplace safe.

I have covered what the various anxieties might be in a previous blog, and emphasised the need to be able to demonstrate that you have complied with the Governments 5 steps to a covid safe working environment:-

  • Carried out and shared the results of a covid 19 risk assessment
  • Have cleaning, handwashing and hygiene procedures
  • Helped people to work from home wherever possible
  • Taken steps to maintain 2m distance at work
  • Where not possible to maintain social distancing, done everything practical to manage the risk

Following these steps and communicating them to employees will go a long way to removing their anxieties and preventing a claim that they reasonably perceived that they were in imminent danger if they came to work, which is most likely to be their claim if action is taken against them.

Ultimately, if someone is refusing to return to work, that could lead to a dismissal, but it is a situation where you will need professional advice.

2.  We have terminated the contract of someone with less than 2 years’ service. Notice expires end June. She wants us to keep her on furlough until it runs out. Could we or should we do that?

Someone with less than two years’ service can be dismissed without a reasonable process.  That’s not to suggest that you behave unreasonably, but you do have more flexibility with these colleagues when faced with having to make redundancies, and this is probably the context of the question.

You can extend her notice if you wish to, but take care that does not lead to her accruing the two years necessary to claim unfair dismissal.  Also note that she will accrue more holidays, so require that they be taken during her notice.

3.  Can we alter the furlough agreement re holiday clause?

Yes, employers have always been able to require that holidays be taken at specific times.  Many do it at Christmas, and some have measures that ensure holidays are evenly distributed throughout the year (phased holidays).

If you have not provided for holidays in your original furlough agreement  here’s an example of something you could add:-

‘We require you to use all accrued holiday by the end of July, and if we extend your furlough further, any more holidays accrued must also be used by the new end date for furlough.  If you have any doubts about the rate of holiday accrual, please discuss this with one of us, but basically most of you will have a total holiday entitlement of 32 days including public holidays which accrue at the rate of 2.66 days per month.

You should book your holidays in the normal way, and you may want to choose dates that you definitely would prefer us not to call you back into work’.

You do not have to follow this exactly; a lot might depend on where you are in your holiday year.  Clearing at least 50% of your accrued leave might be another option.

4.  I understood employees can carry holiday over for 2 years due to Covid, is this right?

This is only partially correct.  The Government has passed legislation which allows the carry forward of annual leave where the employee has been prevented from taking it – normally carry forward of 4 weeks of the statutory 5.6 weeks holiday is not allowed.

It is only really for situations where an employee wants to take their leave in the current year, but cannot because you are, for instance, too busy.

The Government has published guidance on the topic, which includes on the rate of pay for holidays during furlough – although, frankly, they simply quote complex regulations which are rarely followed to the letter anyway.

The consensus amongst legal commentators is that whether on furlough or during a temporary period of reduced salary or hours, holiday pay should be at the ‘normal’ (100%) level for salaried staff.  There are different rules where pay varies.

5.  If an employee agrees to resign, rather than be made redundant, can they give a resignation notice to expire at the end of July, and if they do, can they withdraw it before that time or can it be enforced?

They can give you notice which is longer than required in their contract and you can refuse to allow a withdrawal of notice.  There are circumstances in which you need to take care in refusing.

For instance, if a resignation was given in haste, such as after an argument.  Then it might be reasonable to allow a withdrawal.

A resignation under pressure might also lead to an unfair dismissal claim – for instance, a situation where you put it to someone to resign or else, we will make you redundant!

These questions were also interspersed with lots of others about the challenges of managing colleagues who are working remotely.  I covered this briefly in my recent #LinkedIn blog and I intend to return to this theme in the future.

Watch this space.

Ken Allison | 28th May 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, 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’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Nothing in this article should be relied on as a substitute for taking professional advice about your particular situation.

 

 

 

202020: 20 #employment law commitments and promises to look out for in 2020!

Few people will read all of this, but if I don’t write this blog each year, there’s bound to be someone who misses it!

This year I’ve done my best to cover all the known #employment law changes and listed them in an approximate order of importance.

So, I’ve started with those items that are likely to affect all organisations regardless of size, progressed onto to those that will predominantly impact on larger organisations, and finished with those that address very specific circumstances.

These are a mixture of matters that have already been committed to legislation (with or without implementation dates) and promises made in the Queens Speech (QS) in December 2019.

Likely to affect all employers.

1. From April 2020 all workers will be entitled to a written statement of their terms (usually given in a Contract of Employment) on or before the first day of engagement. Currently this only has to be provided within the first two months of employment.

The amount of information that is required is also being increased (although most well drafted contracts will already comply), so employers will have to review their contracts, and if you currently don’t issue them until a new employee has started, you may need to look at your approach.

2. Currently women on maternity leave that are affected by redundancy must be offered a suitable vacancy where one exists. This right effectively gives them priority over other employees.

The Government has made a QS commitment to extend this right from the point at which the employer is notified of the pregnancy until six months after the end of maternity leave.

Similar rights exist elsewhere in Europe.

3. Extended leave and pay for neonatal care to support parents with premature or sick babies.

4. As promised in the Conservative Party’s election manifesto, unpaid carers will be granted a weeks’ leave.

5. A consultation followed by legislation will make flexible working the default unless an employer has good reasons not to allow it. Another manifesto promise which we will have to wait and see how it will differ from the current right to request flexible working after 26 weeks employment.

6. Calculating holiday pay for workers whose working patterns vary can be a nightmare. Currently, pay for these types of workers should reflect their average in the previous twelve weeks. From April 2020, it will be the average of the previous 52 weeks.

7. Termination payments over £30k will not only be taxable (which they are at the moment) but will also be subject to employer’s national insurance payments.

8. The introduction of a single labour market enforcement body (QS Commitment). Proposed originally in the Taylor Review, it’s envisaged that it will be responsible for areas such as modern slavery, sick and holiday pay, and other matters related to vulnerable workers.

9. National minimum wage increases come into force on 1st April with the headline National Living Wage (for those aged 25 and over) going from £8.21 to £8.72.

10. There will probably be increases to statutory pay rates for maternity, paternity, shared parental pay, adoption and sick pay from the first Sunday in April.

Similarly, caps for Employment Tribunal compensation and redundancy pay are also likely to increase.

11. Parents who have lost a child will be allowed two weeks leave (Parents Bereavement Leave), although a firm date for the introduction of this is still awaited. This leave will be paid after 26 weeks of service.

Mostly affecting larger employers.

12. Temporary work agencies must provide work seekers with a Key Information document including information about minimum expected rates of pay, and who will pay them.

13. The ‘Swedish derogation’ which allowed employment businesses to avoid pay parity requirements providing workers remain contracted to the agency between assignments will be scrapped from April 2020.

This is likely to inflate the costs of using agency workers.

14. There has been previous consultation about a ‘National Disability Strategy’ to encourage employers to retain disabled employees and others with health conditions. Detailed proposals are promised.

15. Addressing concerns about zero hours contracts, it is proposed to introduce a right to request a more predictable contract after 26 weeks, which presumably will work a bit like the current right to request flexible working i.e. a worker can ask, and an employer can reasonably refuse.

16. Executive pay reporting came into effect from 1st January 2020. This requires companies with more than 250 employees to report on the comparison between their CEOs pay and that of employees at various levels.

From now on this information must be in their annual director’s remuneration report.

Changes affecting specific circumstances.

17. Although strike action in the UK is at an all-time low, it’s hard to believe that if you are a rail commuter in the South East or North West. Minimum Service Agreements are to be introduced to set out minimum service patterns and numbers and nature of staff that must work during a strike.

18. Off payroll working arrangements (usually referred to as IR 35) have been changed in the public sector, and from April 2020 these changes apply to larger and medium sized private sector organisations.

There may be changes to the detail of this legislation, but just this week it has been confirmed that there will not be any change to the implementation date.

The rule changes mean that payments made to individuals through personal service companies will be subject to tax deductions by the client.

Small companies are exempt. You’ll need advice, but basically turnover under £10.2 million and less than 50 employees in the tax year will qualify as small.

19. Legislation to ensure tips go to workers in full.

20. Subject to a minimum of 15, an employer has to respond to a request from 10% or more of employees who ask the employer set up an ‘information and consultation arrangement’ (normally referred to as a Works Council).

From April 2020 the percentage is being reduced to 2%.

I’ve done my best to ensure that this list is comprehensive, but as ever I look forward to comments on anything you think I have missed.

It will be interesting to look back on 2020 to see how much of it got delivered.

We shall see.

9th January 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, 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’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

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

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 ‘settlement agreement’.

They are ideal for situations where an employment relationship is not working out due to conduct or performance, but may 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).

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.  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.

In many instances, employers want to offer staff an alternative route out of the organisation at an early stage rather than start a lengthy procedure – often performance related procedures can take up to three months.

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 an HR professional or lawyer.

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

Tweet 38/50: Tell them 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 if they need it.

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 settlement agreement.  This would prevent them from bringing 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/capability 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 save to costs’.

Tweet 49/50: If they do agree to a deal, you will need to confirm the details in writing, and arrange for a settlement 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 settlement 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 | 02 November 2020 | 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!