Human Resources - Risk Management

Legal costs are at the top of everyone's mind in a dispute, because it is easy to visualise having to write out a cheque.

You might find that there are more serious costs than just cash:-

• Time consumed in gathering paperwork, emails and other evidence for the legal team
• Internal meetings to go through the facts
• Preparing for tribunal hearing
• The stress of thinking about this every day
• Effect on staff morale

Expect to spend a lot of time

Disputes tie up the time of your most senior Managers, Partners, and Directors.
The longer it goes on, the greater the drain on everyone.
Be realistic about your reasons for the dispute, and how far you are prepared to go.

Legal protection insurance is not like car or house insurance, it is not as straightforward as you might think.

Will I be covered for all claims

• There is no guarantee your claim will be covered, it has to be assessed by them first
• Insurer has to be satisfied you have a reasonable chance of winning, else you don’t get cover
• They can drop your case at any time if they feel your chances of winning changes
• The insured person might be the intermediary, not you. This means they decide which lawyer to appoint

Things to watch out for

• Who is insured you or the intermediary/supplier. What happens if the intermediary goes bust
• Is there an up front charge or excess when you make the claim
• Are you covered for everything including damages and other party’s legal costs
• What happens if their advice is wrong and it has cost you
• What happens if you’re not happy with the lawyer, can you switch to your own lawyer

Following the Process

• You must notify the insurer before taking any action
• You need to get their go ahead before you do anything
• You must follow exactly the advice given by them, your cover can be dropped if you don’t

It’s all about the process
You can dismiss people, as long as you follow a fair and reasonable procedure. You might have a valid reason, but if the way you do it is unfair, you risk a claim for unfair dismissal.

Reasons for fair dismissal:

• Poor conduct
• Poor performance/capability
• Redundancy
• The law does not allow the employee to do that job
• A substantial reason such as end of contract or refusal to agree to new terms of employment

HIGH RISK LEVEL: Employers routinely skip a fair Performance Review

A dismissal is automatically treated as unfair if the main reason is being pregnant or on maternity leave; wanting to take family leave; for being a trade union member; asking for a legal right; whistleblowing; they’re taking action over a health and safety issue.

Around 50% of Employers lose a case because they did not follow a fair and reasonable procedure.

• The biggest risk to employers comes from not following a full and fair procedure
• You could have a perfectly valid reason to dismiss, but lose because you did not follow a fair and reasonable procedure

MEDIUM RISK LEVEL: If you follow the process, your case may not even reach the dispute stage

This where an employee resigns because they felt that they had no choice but to resign because of something very serious the employer has done. The legal term is 'constructive unfair dismissal'

• This could be things like regularly not being paid; being bullied; being discriminated against; their grievance not being investigated; unreasonable changes employment without agreement.
• It could also be just one incident or a series of things.

Risks:

• The biggest risk arises out of not following good employment practices and not following proper procedures.

Reality:

• The employee must have worked for you for two years to be able to file a claim
• Proving Constructive Dismissal is extremely hard, needs legal advice and is costly for the Employee
• This is a low risk for most smaller organisations and very unlikely in normal circumstances

The most sensible approach is to follow good employment practice to avoid disputes and be prepared to settle this amicably where you can before it gets out of hand.

LOW RISK LEVEL: Extremely hard to win these claims, most small claims never reach this stage

This can be deemed as a low risk because it usually arises out of an Employer’s actions, which they are in full control of.

Disputes under breach of contract usually involve unpaid wages and unauthorised deductions, or other issues such as holiday entitlement.

When issues are related to administrative and accounting, rather than people and performance related, this is almost entirely under the control of the Employer and easily avoided.

In relatively rare cases, the Employer may deliberately withhold payment due to a genuine dispute, but otherwise this can be avoided by having reliable admin processes, good communication, and well drafted employment contracts.

LOW RISK LEVEL: More common but mostly low value claims, easily preventable with robust procedures

If you are a good employer following good employment practice, there is virtually no risk to you. You should only fear this if:-

• You are not following good employment practice
• You are not proactive in training people to be aware of these issues
• You are not observant about how staff behave
• Your staff cannot approach anyone to discuss these problems
• You do not take appropriate action when this is reported to you

You are always at the risk from poor behaviour of some staff, but you can mitigate this if you follow best employment practice and staff know they can trust you to deal with this fairly, firmly and effectively.

HIGH RISK LEVEL: Political hot potato, low incidence level but high claim value and likely to trend

Very high risk in CQC regulated Providers

Probably the most underestimated risk for CQC Registered Services as it is more than a “cash penalty”, it has the potential to lose your licence to trade and close down your business.

These are all from actual cases we have encountered:-

• Management failures: Legitimate whistleblowing of poor management
• Unfounded allegations: Spiteful reporting by disgruntled staff
• Self-Reporting: Incompetent staff whistleblowing on their own failures
• Sabotage: Removing or deleting crucial records, then reporting to CQC as failures

HIGH RISK LEVEL: Low incidence but very high risk. Focus on a robust culture not just systems

Whistleblowing can often contain elements of Grievance and it is important to distinguish between the two as the process is different for each

The basic legal position is set out below, however best practice and your policies usually give employees more protection and rights than minimum legal requirements.

When a generic policy does not cover special circumstances of your organisation, you might need to make changes to customise that policy to your requirements.

You might use Customisation Services to make limited changes only, to edit or add special clauses to your existing or generic policies, or for wholesale redrafting of all your policies.

Customisations Adds Costs

• Any customisation needs regular reviews to ensure relevance and that edits remain in line with changes
• Extensive customisation results in increased maintenance
• Wholesale customisation is a long term decision. You may become tied into or reliant upon that service for updates, regular monitoring, and maintenance.
• Take into account your ability to easily take it in-house or switch to another service.
• Limit changes to specific policies only where possible

Verify the Supplier’s reputation and reliability

What is an Employment Contract

• There is no legal requirement to have a written contract, it can be verbal
• Terms can be implied if not agreed e.g. “don’t steal from us” or “we will keep you safe”
• Terms can be in the employee handbook, or on the Staff Noticeboard
• Terms can be in the offer letter
• Most of the basic Terms of Employment are already dictated by legislation

Written statement of employment particulars
An employer must give employees and workers a document stating the main conditions of employment when they start work. This is known as a ‘written statement of employment particulars’. It is not an employment contract.

In summary, this statement will include basic details such as the person’s name, wage, hours of work, holidays, place of work, length of employment, probation, benefits and training.

Click HERE for a free Template from ACAS

Contract of Employment

• You should always have a written Employment Contract, with the Terms of Employment clearly defined
• A clear contract lays out responsibilities and commitments and will avoid unnecessary disputes
• This allows an opportunity for the Employer to clarify key terms; include additional clauses; and ensure that everything is covered

Employers often feel the need to have the backup and comfort of independent advice in case we encounter a problem requiring specialist knowledge, dealing with complex cases, or avoiding disputes.

Member Services

Professional Bodies often provide advisory services as a membership benefit. This should be your first port of call because of their intimate knowledge of the industry; being better versed in any special requirements in your profession; and being aware of potential regulatory and legal indemnity issues.

FREE Resources

Acas gives employees and employers free, impartial advice on workplace rights, rules and best practice, and also offer training and help to resolve disputes through mediation and dispute resolution services.

Legal protection guarantees come in two broad forms

1. Self-cover: the advisor guarantees their time and advice
2. Insurance-cover: An insurance policy covers your costs

By self-cover we mean that the advisor guarantees the protection themselves; covers their own time and costs; does not involve third parties. Think of this as going to a lawyer who guarantees their work no matter what, and if they mess up they would pay to correct the problem.

By insurance-cover we mean that you or your advisor takes out an insurance policy with an insurer that covers your claim.
This can take several forms:-

• The advisor provides the service with an insurance backing - They are insured
• You go direct to the policy/insurance provider- You are insured
• You are redirected by the advisor to another advisor/layer who acts under that insurance policy - They are insured

Fear of the unknown is the main driving force for legal protection:-

1. Tribunals: What if I have to go to tribunals, who will represent me, how much will it cost
2. Fear of disputes: How will I handle it, I’ll need a lawyer/expert
3. Cost: Lawyers cost over £100 per hour, barristers even more, this protection gives me peace of mind
4. Time is money: I can just hand it over to the advisor saving me a huge amount of time
5. Tribunals: Never have to worry about tribunals, they’ll defend me, cover my costs

Most of these fears are unfounded. 94% of cases never make it to tribunal stage, 27% are settled and 68% are just dropped (See the myth-busters section)

You can still opt to have legal protection, but you should be better informed and better prepared with what questions to ask and what you are getting.

This is the most natural approach when Employers want to be rid of an employee.

It is not a healthy approach as it puts you in the frame of mind of “the end justifies the means” with the temptation to ignore the fair process, and the unpleasant surprise of losing despite being right.

The rules to follow:-

• Follow the Fair and Reasonable process
• Act professionally at all time, it will help you in court and negotiations
• Act ethically, it will help your case
• Ask how you got here, fix any systemic problems
• Put in prevention measures for any complaints raised

Disputes tend to tie up your best people in this stressful and time consuming task.

• Disputes can easily become personalised because the accusations invariably involve individuals who are at loggerheads.
• Avoid the disputes getting polarised and positions becoming entrenched
• Avoid letting it become acrimonious and more difficult and time-consuming to resolve
• Employees usually have more time to spend of this than you do

Commercial Approach

• You have the right to be robust in articulating your position and protecting your rights
• If the situation is likely to get intractable, consider the cost Vs benefit and whether it might be better to put a halt to this
• Keep evaluating your commercial position “Is it worth my time and stress to take this to tribunal?”

 If it gets protracted, don’t lose sight of the fact that at some stage it might be more important to resolve this rather than winning, even if you have to give in and pay despite being right.

Employers who have experienced a protracted and acrimonious dispute often lament how much cheaper it would have been to just settle and move on.

The Disciplinary and Grievance process is embodied in “The Acas Code of Practice on disciplinary and grievance procedures”.

This is the minimum an employer should follow for handling these issues in the workplace. Employers who do not follow this process are at a higher risk of losing their case in a dispute.

A common misstep is for Employers rushing to the goal of firing the employee without due process and their right to reply. One of the key steps that is often missed when the person’s competency is under question is a fair Performance Review.

Acas publish comprehensive resources as part of their service, with two powerful tools at your disposal:-

1. FREE guides, documents, and templates on their web site
2. FREE telephone advice and friendly guidance

The time you invest in Staff Development might be vital evidence in a dispute.

• Keep a comprehensive record of Personal Development, Appraisals, and Staff Meetings to demonstrate that you are a good employer.
• More importantly, keep a record of staff feedback and personal discussions to show that staff were given the opportunity and a platform to speak freely about issues of concern.
• A Staff Appraisal with feedback is an important evidential record that the person appeared perfectly happy with the job and their environment at that time. If you record and act on the feedback in a diligent manner, that would further demonstrate that you follow a fair and reasonable process when appropriate.
• Most staff will have stated at their appraisal that they are happy with the appraisal. This is vital evidence assuming this was a free expression without undue pressure or intimidation.

You might not need to customise anything

Standard HR Policies are usually sufficient, particularly for smaller organisations. Look for suppliers who specialise in your profession as it makes more sense to get your core library from a reputable supplier and build on that.

• Customisation should only be necessary if this would better reflect your circumstances.
• It may be more cost effective to use the services of the same supplier to customise, for consistency and reliability.
• The basic principle to follow is to start from a recognised source for Best Practice and customise and improve only where required.