Welcome to our HR Blast which has a bit of a twist to it… We’ve decided to troubleshoot five issues that have cropped up in the HR advice centre this week! Read on to see whether you have any similar issues and how to resolve them!
Off-the-record (Without Prejudice) Conversations – What does it mean?
In the past, these have sometimes been referred to as ‘car park’ chats, but what does the phrase really mean?
Off-the-record conversations are typically expected to be ‘without prejudice’ discussions. The idea behind without prejudice communications is to allow two people/parties (involved in an actual or prospective dispute) to make a genuine attempt to negotiate a settlement, without the fear that their negotiations will damage their position (or their legal case) if they fail to reach agreement. Each party may therefore feel able to explore the matter fully without ‘prejudicing’ their position if the discussion does not culminate in agreement.
Communications that are conducted on a without prejudice basis are “privileged”. This means that what is said (or written) cannot be referred to in “open” (i.e. all other) communications. In the same way it cannot be referred to in a tribunal, court or documents (such as letters or notes of meetings) as without prejudice communications may not be produced in court as evidence. An employment tribunal panel or judge, if the matter ends up in court, will not therefore be aware of the assertions, admissions and concessions which the parties make during their discussions.
It is possible for communications to be without prejudice even if these words are not used. However, to minimise the risk of misunderstanding or later argument, when communications are intended to be without prejudice, it is always safest to state this explicitly and at the outset to explain the concept if the other party is unfamiliar with it and obtain (and record) their agreement. Even an explicit statement may not be sufficient to guarantee that communications will be without prejudice as there are other conditions which must be satisfied before communications will be regarded as legally without prejudice and privilege will attach to them. Examples of this is that what you say cannot be discriminatory or rude or aggressive.
If you are not sure about what you can and cannot say, speak to one of our team today just to check you are playing it ‘safe’!
Be aware! How many of your directors or senior managers think that they can backtrack on a conversation with an employee by simply calling it ‘without prejudice’ after the event? A dangerous game to play!
Dismissing staff with short service – Easy, right?
We’re often asked this question! The answer is that it can be relatively easy or straightforward but also that you should always proceed with caution. And if you are wondering, as so many do, if you can dismiss someone with short service by email or leaving them a telephone message because they have no employment rights and they’re just not the right fit for the Company, again, the answer is yes, but always with caution!
What should be one of the easiest of employment issues to manage can quickly turn very difficult, so don’t get caught out! And if you ask our advice, we will usually try to deter you from dismissing someone this way. Why? Well let’s turn it around and ask…how you would feel if you woke up one morning to a voicemail from your boss telling you, you have been dismissed?
If you would feel upset, irritated or angered then you shouldn’t be surprised if that is how your employee would react. And what do people do when they are upset, irritated or angered? Some will see if there is any way to sue you or generally make your life miserable, others will simply go away and speak badly about you and your company for the next 20 years. Neither is a great option for a business that values its profitability and sustainability. We see so many employees making their complaints through social media channels and anonymous company review forums such as ‘Glassdoor’ and the detrimental impact these have on businesses really cannot be ignored!
We advise therefore that you follow a process to dismiss a member of staff. Wherever possible and practicable, giving them an opportunity to have their say after listening to your concerns as this is far more likely to result in them walking away without feeling as though they want to drag you into the nearest court or start laying into you on social media. For more information on the process, check out our Blast on dismissing staff with short service.
Red Alert: Be wary of those managers who think that prioritising other work over taking a few extra minutes to dismiss someone properly and professionally is the right choice. If you consistently pass back to managers any legal costs incurred on their behalf as a result of disgruntled employees, you might make your managers take their responsibilities more seriously in future.
Rolled-up holiday – what do I do?
Rolled-up holiday is an amount included for holiday pay in the hourly rate, but can you still do this? It used to be custom and practice however, it is now technically illegal – so you shouldn’t be doing this anymore. If a contract still includes rolled-up holiday pay it needs to be re-negotiated, as holiday pay should be paid for the time when annual leave is taken. This is often a night-mare for those working irregular hours and on casual contracts but very simple to resolve by calculating the average hourly rate. Once you have done this, allocate them a time/month when they will need to take annual leave and separate this payment out on the payslip.
Be wary: Holiday legislation was introduced in order to ensure employees get regular rest, rather than just being a lovely extra financial benefit! So, don’t get distracted by holiday being all about the pay – you still need to ensure your part time employees are getting genuine rest by setting aside days/weeks when they are not actually working at all.
Employee, worker or self-employed – which one is which?
Due to the hype in the media around this topic, this has quickly become a huge headache for a lot of our clients. Perhaps you have also found yourself in a situation where you have received a complaint from someone you thought was self-employed asking for holiday, rest breaks or even claiming that they are in fact employed.
As a result of such media interest, it is really important that you are pro-active in identifying any potential problem areas in your own organisation around employment status. Where are your danger zones, who are your danger people, which managers just treat everyone the same so could be putting you in danger of a claim?
Self employed people, as a reminder, should not be invited to a disciplinary, paid sick pay, given holidays, be invited to attend annual review meetings using internal review paperwork etc. How confident are you that your managers – or even HR – really understand the contract for service and when that should be used and how, as a result, the self employed should be managed?
You need to be confident that HR and managers really know what they are doing in this area and that no one is exposing your business to any legal action. For further help with this, read our Blast on employed, self-employed or worker, what is the real difference?
Danger zone! It can be discriminatory to treat your zero hours staff like they are self employed or ‘agency staff’ meaning that they do not get the benefits or treatment associated with full time permanent staff. If you don’t want them to have the same benefits then you need to either use an agency or issue them a contract for services rather than a contract of employment and, whilst doing that, ensure that they are genuinely self employed!
Zero hours employees – Are turning into permanent hours (!)
The nature of these types of contracts are that essentially, there is no guarantee of hours provided. But all too often we see zero hours workers working regular hours of work so before you know it, they are working just as many hours as your full-time members of staff, or if not full time, then very regular part-time hours. If this is the case, you are in the danger zone!
If you have a zero-hours employee working a consistent number of hours, you need to seriously consider updating their contracts or risk falling foul of the law. Don’t risk a sex discrimination claim. If you need support with this or would value support with a total review of your employment documentation, get in touch!
And if you’re asking, why sex discrimination? Because it has long been established that treating part time workers less favourably than full time workers is sex discrimination.
Disciplinary hearings – they’ve turned up with a stranger!
Have you ever been in the position of chairing a disciplinary hearing when the employee turns up with a total stranger in tow to keep them company? It is more common than you think!
If you ever find yourself in this situation, remember that the employee has only got the legal right to be accompanied by a colleague or accredited trade union representative/union official who has been approved by the union to act as a companion and witness to the proceedings. Some companies also permit staff/employee representatives to accompany staff at these meetings.
If, after you have identified that the stranger is not any of the above, then you do not have to proceed with the hearing with that person in attendance if you do not wish to do so. So, your options are either to simply ask that the person leaves/waits outside or suggest that you re-arrange the hearing to allow them time to organise a different person to accompany them.
Of course, to avoid this situation, the employee should have already have been informed in the letter that invited them to the meeting of who can support them at the meeting.
On the alert! Don’t fall into the trap of simply proceeding with the meeting if the employee asks for the meeting to be re-convened if, for example, they did not know they could not be accompanied by a friend. It is an employee’s statutory right to postpone a formal hearing for up to 5 days to arrange for a companion to be present.
Do you have other HR issues causing you a nightmare in your workplace? Let us know and we can feature them in a future troubleshoot Blast!
How can we help?
- Jaluch provides practical and pragmatic support with day to day HR issues from grievances, absence, disciplinaries to Tribunal Claims. Pay as you go support available with no ongoing contract required. Why not try us to see if our Plain English, practical style suits you!
- Employment Law training sessions for your HR team and line managers – engaging and practical with case study after case study to ensure your managers really get to grips with what they need to be doing! Why make the legal stuff so complicated? We have no idea why trainers do that when the training can be made accessible and engaging for all. Try us by booking your first session.
- One to one coaching for ‘dealing with conflict and difficult conversations’
- Train the trainer sessions and training kits for your trainers to roll out ‘Managing Discipline and Dismissals’, ‘Managing Performance’, Managing Absence’ or ‘Diversity and Inclusion.
- Employment Policies, Contracts of Employment, Management Guidance, Letters and Forms to help you manage all sorts of issues – all available on DocsWizard through a low cost annual subscription model: https://www.docswizard.co.uk/
With Jaluch, no onerous or long-term contract is required as we have a pay-as-you-go option which can be very quickly set up so there is no delay in us giving you the support you need. Why wait? If you would like to discuss any of the above, please email email@example.com or call 01425 479888.
The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.