Lawpack

by Nadine De Souza

Discrimination is illegal at all stages of the employment process (i.e. advertising, vacancies, engagement of employees, promotion, training, benefits, dismissal and retirement). This protection covers more than just employees and includes the self-employed and those with a contract of service or working under an apprenticeship.

If an employee thinks that they have been discriminated against, then they can bring a claim in an employment tribunal. There is no qualifying period of service to bring a discrimination claim and no maximum award, so you must try to avoid a discrimination situation.

How to avoid a discrimination claim

An employer is liable for anything done by its employees in the course of their employment, whether or not it was done with the employer’s knowledge or approval.

However, it’s a defence if the employer can prove that it took reasonable steps to prevent an employee from doing a certain act. If the employer wishes to rely on this defence, it must be shown that positive steps have been taken to address the possibility of discrimination occurring in the workplace.

The best way to avoid discrimination is to make sure that it doesn’t happen in the first place. Employers should have an equal opportunities policy. An equal opportunities policy is also part of Lawpack’s Staff Handbook.

Employees must be shown this policy and educated about different types of discrimination and warned of its consequences. Employees should be told that all acts of discrimination will be taken very seriously by the employer and will be considered gross misconduct.

Types of discrimination

It’s against the law to treat someone less favourably than someone else because of a personal characteristic, such as age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

There are different types of discrimination including direct discrimination, indirect discrimination, harassment and victimisation. Some examples of discrimination are introducing policies that discriminate against workers (e.g. a benefit for married employees but not for those in a civil partnership, or failing to make reasonable adjustments for a disabled employee).

Dealing with a discrimination claim

Complaints of discrimination can be very disruptive to the workplace and must be dealt with very carefully. If an employee complains of discrimination, consider whether an informal approach to the alleged discriminator would be appropriate; for example, if it’s a less serious complaint or the first instance of discrimination.

Consider whether the person complaining of discrimination wants an informal approach or would prefer more formal action to be taken. If an informal warning is appropriate, the alleged discriminator should be consulted to explain that the conduct is upsetting the employee, that it’s considered discrimination and must not continue.

The employee should also be warned that the matter will be kept under review. The employee must be shown the policy which is in place and warned that if matters don’t improve, disciplinary action will be taken.

The person who has complained should be kept informed of the warning given and told to inform the employer if they have any further complaints against the alleged discriminator.

Where an informal approach is inappropriate or if the complainant wants formal action to be taken, the disciplinary procedure should be followed in the following way:

• Ask the victim for a full statement
• Suspend the alleged discriminator pending an investigation
• Take statements from all staff who can provide evidence about the alleged discrimination
• Interview the alleged discriminator and ask them to provide a statement
• If there is any substance to or doubt about the discrimination, then you will need to hold a disciplinary hearing to give the alleged discriminator the chance to answer the complaint or justify or excuse their conduct
• If you decide that the discrimination did take place, you have to consider a penalty. If it’s a serious case, then the penalty could well be dismissal. If the discrimination is less serious, then a final written warning should be enough.

Exceptions to the law against discrimination

There are a number of areas where exceptions to the law against discrimination exist. The main ones are:

• Positive action: Employers are entitled to take voluntary positive action if they think that employees or job applicants who share a particular characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low.
• Genuine occupational requirement: In limited circumstances it may be lawful for an employer to discriminate if it’s a genuine occupational requirement for the jobholder to have a particular characteristic (e.g. a charity that helps female victims of domestic violence is advertising for a counsellor and they consider it to be a genuine occupational requirement for the jobholder to be female).

Help from Lawpack

This article has been adapted from Lawpack’s Employment Law Made Easy. If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Why not download our Equal Opportunities Policy, so you have a solicitor-approved company policy in place?

Other information

• What you can and can’t say in a job advert
• Questions you can’t ask in a job interview and why
• Dos and don’ts when selecting and interviewing job applicants
• How to solve a workplace dispute
• How to deal with redundancy for pregnant employees or those on maternity leave

 

External links

• Gov.uk: Employers – preventing discrimination
• ACAS: Equality

Published on: June 30, 2014

by Nadine De Souza

Unfortunately, during these difficult economic times you may have to make a member of staff redundant. Read our essential guide below for the steps to ensure that any redundancies you make don’t fall foul of the law.

Redundancy exists when an employee’s dismissal is attributable mainly to the fact that:

• The employer has stopped, or intends to stop, carrying out the business that the employee is employed for or that the company intends to relocate;
• The need for the employee’s work has stopped or diminished, or is expected to (i.e. a reduction in the number of employees is required).

As an employer, you need to show that an employee’s redundancy is genuine. Therefore, you have to show that the employee’s job no longer exists. It’s also important to try to avoid redundancies before dismissing staff.

Step 1: Find alternative employment

Firstly, you must try and find alternative employment for the redundant employee within your organisation. If you offer your employee alternative employment, then it must be offered in writing and should be unconditional.

It must start within four weeks of the old job ending and the employee should be given a four-week trial period in which to try out the job.

If the employee doesn’t like it, then they don’t have to accept the job and will still be entitled to redundancy pay.

If the job is suitable but the employee refuses to take it, then they won’t be able to claim redundancy pay.

Step 2: Ask for voluntary redundancies

If you can’t offer alternative employment, then you can avoid compulsory redundancies by, for example:

• Asking staff to apply for voluntary redundancies;
• Asking staff to work flexibly;
• Short-time working or lay offs.

If you ask your employees to volunteer for redundancy, you have to have a fair process for redundancy and just because an employee has volunteered for redundancy, it doesn’t mean that they will be selected.

Step 3: Offer shorter hours

It’s possible to ask staff to do short-time working if their employment contract allows it. Short-time working is when staff have no paid hours for a number of days a week

Step 4: Lay off your employees

You could also lay off your staff, which means that you ask them to stay at home or take unpaid leave. It’s a way to avoid redundancies, but you need to agree it with your staff first.

Step 5: Select people fairly

If voluntary redundancy isn’t possible, then you should select people for compulsory redundancy and make sure that you follow a fair procedure. Fair reasons for making staff redundant are their:

• Skills, qualifications, aptitude;
• Standard of work/performance;
• Attendance record;
• Disciplinary record.

You can also select employees on the basis of length of service which is ‘last in, first out’. However, don’t make this the only reason for selection as you must be careful that this isn’t age discrimination.

If you use the reasons below as the reason for making someone redundant, then the redundancy will be unfair. The reasons that are unfair are:

• Pregnancy;
• Family reasons, including parental leave or adoption leave or time off for dependants;
• Acting as a trade union representative;
• Being a part-time worker;
• Age, disability, gender reassignment, marriage, civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Step 6: Consult your employees

It’s very important to consult your employees about redundancy. If you don’t, it will almost certainly be considered unfair. There are no set rules about the consultation process if you’re making less than 20 people redundant.

Step 7: Give notice

After you’ve consulted your staff about redundancies, you have to give those employees selected for redundancy the statutory amount of notice. The amount of notice depends on how long your staff have worked for you.

• 1 month to 2 years: At least a week’s notice
• 2 years to 12 years: A week’s notice for every year worked
• 12 or more years: 12 weeks’ notice

If you want your staff to leave earlier than the end of the statutory notice period, then you should pay them in lieu of notice.

Step 8: Look into redundancy pay

Your employees may be entitled to redundancy pay. To qualify the employee must have been working under an employment contract; have two years’ continuous service; have been dismissed, laid off or put on short-time working. You should give your employee a written statement of how their redundancy pay was worked out.

There is a formula to work out redundancy pay:

• 1.5 weeks’ pay for each year of employment after the employee’s 41st birthday;
• A week’s pay for each year of employment after their 22nd birthday;
• Half a week’s pay for each year of employment up to their 22nd birthday.

Length of service is capped at 20 years and a week’s pay is capped at £464. The maximum amount of statutory redundancy pay is £13,500.

If you do have to make some employees redundant, you can get practical help from JobCentre Plus and their Rapid Response Service.

With the UK having recently experienced one of the worst winters since records began, many employees have struggled to get into work due to travel disruption.

But what can you do as an employer if your staff can’t get into work? What efforts should you expect your staff to make to get in? And what happens if your employee’s child’s school is shut?

Here are our top tips on how to handle the problem and your rights as an employer:

1. Get it in writing

You have no legal right to pay your employees if they’re unable to get to work because of travel disruption, but there may be contractual or customary practices in place.

Include these practices in your employment contract or staff handbook.

2. Be flexible

Although there is no legal right to pay your employees for travel disruption, the way you handle it could enhance staff morale, so it’s advisable to be flexible. Consider whether your employees can work from home or make up the hours at a later time.

3. Use technology

Technology can help to keep your business going when bad weather hits. Your employees can use laptops and smart phones to continue their work, even if they are unable to physically get to work.

4. Turn the days into paid holiday

If there is travel disruption, you could ask your employees to take paid holiday if you give the correct notice. This must be at least double the time that they want the employee to take, so for one day’s leave there has to be two days’ notice.

If the company’s employment contract sets out a different notice period, then this will apply.

5. Follow procedure

Always make sure that you follow fair and proper procedures when dealing with employees who are absent because of travel disruption to minimise the risk of complaints being made to an employment tribunal by your staff.

6. Write a staff policy

It’s a good idea to put an ‘adverse weather’ or ‘travel disruption’ policy in place that deals with what will happen in the event of bad weather or travel disruption.

It can deal with what steps employees are supposed to take to get into work and what will happen with pay and how the business will continue with the employees’ absences.

Having a policy will make it easier for all employees to understand what is required. Lawpack’s solicitor-approved Staff Handbook template includes clauses on staff attendance and time off for dependants, so you can get a professional staff policy in writing easily and quickly.

7. Encourage your employees to have a back-up plan

Your employees can take measures to help themselves, such as planning extra commuting time when there are known problems with public transport. If their child’s school is closed, then they should consider having a back-up childcare plan.

Employees are entitled to time off to look after their children. if their children’s school is closed. If the school is closed because of adverse weather, then this could be considered an emergency situation. Your employees are entitled to a reasonable amount of time off to sort out alternative childcare.

Help from Lawpack

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Why not download our Staff Handbook, so you have a solicitor-approved company procedure in place?

All employers will have to face an employee resigning, but it’s important that you handle it in the right way. Here are some crucial tips to follow.

1. Get confirmation

You can’t refuse an employee’s resignation, but do get the employee to confirm their resignation in writing.

2. Confirm the notice period

Tell your employee what their notice period is and decide whether your employee needs to work all of it.

3. Communicate

Agree with your employee what their last day will be.

4. Impart the news

Consider how you will tell your other staff about the resignation. Perhaps a short, upbeat meeting is a good way to maintain staff morale and deal directly with any questions.

5. Finish off all projects

On a practical level, get your employee to wrap up their projects and leave handover notes for any unfinished work. Make sure you get other employees to cover the work left by the departing employee.

6. Inform your clients

If your departing employee has clients, then you will need to get your employee to tell them about the resignation and to make any necessary introductions.

7. Get a replacement

Consider when and whether you will begin looking for a replacement due to the employee’s resignation.

If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Producing a staff handbook could be one of the best moves you ever make as a company boss, as the document will resolve numerous issues and appease staff personnel over the years to come.

At first, you might think: ‘Do I really need to write an handbook?’. Here are our reasons why it’s vital for you and your business.

Why you need an handbook

1. It prevents confusion

The handbook will set out the company’s policies and values, so employees never have to be confused about where they stand on a certain issue.

There are many examples of matters staff might be worried about bringing up in person, so kitting them out with an handbook will give them the chance to answer their own questions.

2. Use it as an induction tool

It will be invaluable when recruiting or inducting members of the workforce, as it can be used effectively as an introduction and guide to the business. This will enable new recruits to get up to speed quickly.

How to write a staff handbook

If you decide to write a staff handbook yourself, you should consider some of the practicalities of doing so:

1. Staff inclusion

Can you involve your employees in the process so that the information they want is included?

2. Format

What format should the handbook be published in? An electronic version may now be the best option.

3. Style

Think about the style in which you write, as it’s vital that you’re clear and concise. Stick to short and sharp sentences that leave no room for doubt.

4. Contents

Most importantly of all, you will need to include the right contents in your staff handbook, or risk it becoming relatively worthless. After all, if you produce a document but omit vital details, staff will still have to come to you for guidance and information, making the whole process pointless.

There should be details relating to the employees’ terms of employment, including their training, attendance and appearance at work.

Details of absence and time off for dependants should also be covered.

You must also explain what hours people are expected to work and whether there is any potential for flexible or remote working to occur.

Finally, it should include information on health and safety in the workplace, a redundancy policy and grievance procedure.

Professional template

If you don’t want to write an handbook yourself, Lawpack’s Staff Handbook template has been professionally written by an employment lawyer and includes all the clauses you need to protect your company legally. Available to download and use instantly.