A subscriber to HRlaw.co.uk has asked us to compile a list of what we find to be some of the most common HR mistakes and traps that employers can make and fall into. The HR law team has put their heads together and here they are:
1. Commencing processes without having documentary evidence in place first
It frequently happens that, when the difficult decision to dismiss has been taken, there is a short window within which to implement the procedure (whether it is a redundancy or a performance dismissal). In such circumstances, employers often neglect to document how it came to decide that the dismissal is necessary. In the case of redundancy, for example, in all but the most clear cut of circumstances (such as the closure of a business or a place of work), most redundant employees will be able to challenge the reason for the redundancy and without evidence to document the rationale, employers can be vulnerable to such challenges. This mistake is easy to avoid by producing a memo between the decision makers or a note of the meeting in which the decision is taken which explains the reason and explores whether alternatives to making the redundancies are viable. Performance dismissals should also be documented, most importantly noting all previous warnings to the employee that he/she was at risk of dismissal if his/her performance failed to improve.
2. Failing to give negative feedback to employees
One of the most common mistakes made by line managers is being reluctant to give negative feedback, whether it is on day-to-day basis or during appraisals when there is a natural opportunity to make a written note of performance failings and give employees performance objectives. Giving negative feedback can be awkward and difficult. However, it can understandably appear to be unjustified when an employee is dismissed for poor performance without having received any prior indication that there are performance failings. If there is a drop in performance, employees should be performance-managed in the usual way, i.e. undertake a disciplinary procedure, issue written warnings and give a period of time to improve.
3. Thinking immigration issues do not impact the employment relationship
Employers should check all new employees’ right to work in the UK in accordance with the prevention of illegal working guidance. If an employee does not have the right to work he/she will have to cease work immediately.
When transferring employees from overseas offices to the UK, often contractual and accommodation arrangements, announcements regarding the transfer and replacements are all arranged without first checking the immigration process (i.e. eligibility, cost and timeframe). This should be the first step, as often an employee is simply not eligible to work in the UK.
For employees with work permits, employers should ensure that any promotion or change of role is permitted by the work permit, as any subsequent application for indefinite leave might fail as a result and the consequent adverse immigration record could result in their loss of the right to live in the UK.
4. Inconsistent treatment of employees
When exercising discretions such as payment of bonuses or providing other benefits, employers can inadvertently leave themselves exposed to a claim of discrimination or unequal pay if they do not treat all employees consistently or document and justify differences in treatment. For example, if a male employee is permitted any one of a number of privileges or benefits such as carrying over holiday, a large bonus, or preferential working hours in circumstances where a female employee is denied the same benefits and privileges, it can give rise to a prima facie case of sex discrimination and the burden of proof will be on the employer to explain that the different treatment was for some other reason not related to sex.
5. Having policies which are a straitjacket
A comprehensive employee handbook is advisable, however, one often sees handbooks which oblige employers to strictly comply with policies and procedures which leave them tied up in unnecessary layers of process. For example, permitting two opportunities to appeal a disciplinary decision or strictly requiring a set number of written warnings before undertaking disciplinary actions. Even more unhelpful is when it is not make clear that these obligations are not contractual thus giving rise to a potential breach of contract claim if the procedures are not followed in full. Ideally, a handbook will not impose greater obligations than those already imposed by law and it will act as a useful guide as to any procedures that should be followed and evidence an employer’s adherence to legislation.
6. Neglecting the importance of thorough investigations
Although not strictly necessary in all circumstances, in the case of misconduct it will usually be necessary to establish the facts of the alleged misconduct prior to taking the decision that disciplinary action is appropriate. If employers neglect to carry out any such investigation, and employees assert a different version of events in a disciplinary hearing, it will be difficult to justify disciplinary action based on the employer’s version of events without pausing the disciplinary process and undertaking a through investigation.
7. Trying to agree notes of meetings with employees
Whilst it is good practice to allow employees to have copies of any notes taken at disciplinary or grievance meetings it is not a legal obligation. Therefore, engaging in a possibly lengthy process in which an employer tries to agree the contents of any note with an employee is both unnecessary and can give rise to a final set of notes which does not reflect the meeting in the way that the employer recollects. If an employee disagrees with the contents of a meeting note, they can be simply informed that their comments will remain on file but that they are not necessarily all agreed with. Further, an employee or their companion should be permitted to take their own note of the meeting, which the employee can rely upon if it does not agree with the contents of the employer’s meeting notes.