Is it Stay or Go?

Scott had employed Ian for 9 months and as time had gone by he was getting more and more dissatisfied with Ian’s attitude and lack of interest in taking more ownership and responsibility as part of his role.

So Scott contacted us and when we spoke it was apparent that there had been niggling concerns from the start of Ian’s employment but they weren’t addressed as he was ‘doing his job’ and the was ‘no time’.

Ian hadn’t been given any objectives or outcomes to meet when he joined, there were no scheduled review meetings (there was nothing to review!), Ian had been left to his own devices to carry out the tasks detailed in his job description and the probation period clause in his contract of employment meant that he was automatically confirmed after 3 months.

Now I can’t say 100% who was to blame about Ian’s lack of motivation, but in resolving the situation, it was apparent that there wasn’t a strategy in place to get Ian working in the way that Scott wanted him to.

Having an induction strategy is vital to being able to have enough evidence to decide should you new employee stay or go.

Here are some practical tips to get the evidence that you need to confirm, extend or fail an employee during their probation period and remain legislatively compliant:

Probation Clause

First things first, ensure that your probation clause states that it is only completed when confirmed in writing.

Clear, SMART objectives

During the first week of employment set objectives for the first 3-6 month, ensure they are clear and easily monitored.

Regular Reviews

Meet with your next starters once a week during the first month and at least fortnightly thereafter. Have a template to ensure you are reviewing how they are progressing against your objectives and well as ensuring that they have been provided with the support and training that they need to succeed.

Evidenced Feeback

Give clear objective feedback, so that there are no grey areas, it’s not how you feel, it’s what the evidence is showing you. For tips on having that ‘difficult conversation’ read our article here.

Extend or Terminate

If your new employee isn’t achieving the objectives that you have set for them, and you can demonstrate that they have been given the support and training needed to be successful. You have to decide whether to extend their probation period or terminate their contract. If you’ve been having the regular review sessions as discussed above and there has been little or no improvement, terminate, However, if there has been an improvement and there are just a couple of minor issues it may be worth expending the probation period for a month or two.

Document all of the above

Always, always, always ensure that you document your objective and review meetings.

Our Management Fundamentals online training will provide you with the practical skills you need to manage, motivate and develop your team, check out the details here.

How to make sure you are on the right path

May is National Share a Story Month, so this month we’ll be sharing an interesting HR story a week and I hope you will share some of your stories or with us.

As an HR consultant, I always get asked about juicy scenarios, especially when I’m with other business owners or HR Professionals, normally I’m very discrete but I’m going to share (while anonymising the names!). I shared my own story in an interview with Bella networking, click here to check it out.

We started working with a new client who contacted us after receiving a lawyers letter challenging the way they had dismissed a member of staff, threatening to take them to the employment tribunal for unfair dismissal. 

It turned out that Julie in their sales team had raised a grievance against her boss Andrew for sexual impropriety; they had been in a relationship (which he should have informed the company about) and when Julie ended the relationship, Andrew continued to attempt to be intimate with her in the workplace.

Julie’s grievance was not upheld, nor her appeal and so she produced a sick note for work-related stress stating that she was signed off from work for a month. As her manager was accused of improper behaviour, he didn’t contact her while she was off sick and neither did anyone else. A month later they received another sick note for a month. Another manager then wrote to Julie inviting her in for a meeting to discuss her sickness, Julie refused to come into the office as she felt uncomfortable and so they terminated Julie’s contract and advertised her role. 

The letter from the lawyers stated that my client hadn’t followed their own policy and that they had unlawfully withheld pay. 

I looked into the case and informed the client that had not handled the case correctly and would need to negotiate a settlement because:

• During the investigation process, they suspended Julie but not Andrew which can be seen as apportioning blame.

• Andrew’s manager investigated the case rather than an independent individual.

• They did not have an appeal hearing, but reviewed the report from the initial investigation and sent a written response, which was not detailed in their own policy.

• They failed in their duty of care to support their employee when she was signed off for stress.

• Statutory sick pay was not paid to Julie while she was signed off.

• Julie did not receive her contractual notice pay.

• Julie was not given the opportunity to appeal to her contract dismissal.

It wasn’t entirely my client's fault, they had been working in the US and so were not aware of some legislative differences in the UK.

Luckily for my client, we were able to settle the case by paying Julie what she was owned and agreeing to the wording for her reference.

Lesson Learnt - It is important to ensure that you are aware of the correct process to complete when you have staff issues; failure to properly follow process is deemed as automatically unfair by the Employment Tribunal.

Schedule a call to discuss how we can keep you out of HR trouble here.

Employment Legislation Update - April 2019

April is always busy time for Employment Law Updates, here’s our list for the coming weeks:-

Implementation date: 29 March 2019

Technical amendments to employment law to ensure smooth Brexit take effect

The Government introduces legislation to ensure that employment laws continue to operate effectively on the day the UK leaves the EU. The legislation makes minor technical changes, including amending and removing inappropriate language and references.

Implementation date: 1 April 2019

National minimum wage rises

The hourly rate of the national living wage, the rate for workers who are aged 25 and over, increases from £7.83 to £8.21. The national minimum wage for workers aged at least 21 but under 25 rises from £7.38 to £7.70 per hour. The rate for workers who are aged at least 18 but under 21 increases from £5.90 to £6.15 per hour; the rate for workers aged 16 or 17 rises from £4.20 to £4.35 per hour; and the apprentice rate rises from £3.70 to £3.90 per hour. The accommodation offset increases from £7.00 to £7.55 per day.

Implementation date: 6 April 2019

Employment tribunal award limits increase

The maximum amount of a week's pay for the purpose of calculating the basic award for unfair dismissal and a redundancy payment, which increases to £525, and the maximum amount of the compensatory award for unfair dismissal, which increases to £86,444.
The order applies where the event that gives rise to the entitlement to the payment occurs on or after 6 April 2019.

Requirement for payslips to state hours worked where pay varies

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 (SI 2018/147) provides that, where an employee's pay varies by reference to time worked, employers must include the number of hours for which the employee is being paid on his or her itemised pay statement. The change is designed to make it easier for hourly paid staff to ensure that they are paid correctly and to address underpayments.

Statutory sick pay rises

The rate of statutory sick pay rises from £92.05 to £94.25 per week.

Lower earnings limit for national insurance contributions increases

The lower earnings limit for primary Class 1 national insurance contributions increases to £118 per week.

Increase in minimum contribution level for pensions auto-enrolment takes effect

The minimum level of employer contribution into a pensions auto-enrolment scheme increases from 2% to 3%, with an increase to the employee contribution from 3% to 5%. The total minimum contribution increases from 5% to 8%.

Maximum penalty for aggravated breach increases to £20,000

The maximum penalty that an employment tribunal can order for an aggravated breach of a worker's rights rises from £5,000 to £20,000.

Implementation date: 7 April 2019

Statutory maternity pay and other family-related statutory pay rates increase

The rates of statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay from £145.18 to £148.68 per week.

The day my professional mask slipped

A lot of the time when I meet someone new and tell them that I keep entrepreneurs out of HR trouble. I get told a dodgy or embarrassing story about an incident that an individual had to deal with. Everyone loves a bit of drama!

I like to think I’ve seen most things and am pretty difficult to shock. I am often told that I have a great poker face, but I do remember the last time a client only had to look at the look shock on my face to realise that something was very wrong!

I have a client that told me they had some outstanding issues that needed addressing when they signed up to receive our advice and support on a retained basis. I remember in our initial meeting they had probed pretty hard on our experience of dealing with staff relationships and even went as far as asking if we could create policies that banned them!

About two weeks into working with them, they contacted me because they had received an ET1 – the notification you receive from the Employment Tribunal Service when a claim has been submitted. So I went in to see them to gather evidence and see whether the case had legs.

It transpired that an employee had raised a grievance against her manager (whom it was rumoured she’d been in a relationship with) and when the grievance wasn’t upheld, she went off sick. The claim was for discrimination and also stated that she had not been paid.

When I asked for details regarding her sickness and pay. I was told we stopped her pay when she didn’t come into work and we haven’t heard from her and she hasn’t returned our calls. I asked for documents to substantiate that they had made contact and copies of the sick certificates; I was given one sick certificate!

At this point I could see that the look on my face made my client distinctly uncomfortable! I really wasn’t sure where to start cataloguing the mistakes that had been made, amongst other things they had NOT:

• Followed their grievance process and given the option of appealing the outcome of the grievance.
• Paid sick pay according to their policy.
• Documented the attempts they had made to contact the individual.
• Written to the individual after failing to contact her by phone.
• Demonstrated carrying out their duty of care to the individual

Now, in their defence they are American and this was their first experience of UK employment law, so they had made some assumption based on their U.S. experience.

I was able to speak with the individual and negotiate a settlement agreement with her (as she didn’t want to return to work), pay her was she was owed and her notice pay; for less than what it would have cost to prepare an Employment Tribunal case.

The lessons that my client (and I hope you) learnt from this experience were:

• Ensure you have comprehensive up to date HR policies in place.
• Follow your HR policies.
• Document what you have done.
• Don’t make assumptions, employment law can be complicated.
• Take advice before you act.

You can find the vlog on this subject here.

If you need HR advice and support to keep you out of HR trouble contact us to find out how we can help you here.