Employment issues – during and after an economic downturn

1. Employment issues – during and after an economic downturn Joe Thornhill, Partner 3 September 2009

2. Introduction

3. Alternatives to Redundancy > • Wage reductions • Changing Terms and Conditions of Employment • Short-time and lay-off • Voluntary Redundancy • Firm management

4. Dismissal Action

5. Unfair dismissal • What’s the cost? • Compensation for Unfair Dismissal is split into two: • Basic Award • Compensatory Award – it is indexed linked and recently increased to £65,000

6. Unfair dismissal • A claim for unfair dismissal can normally be made if the employee has been employed for more than 51 weeks • Practical steps - monitor performance during an employee’s first year of employment. Ensure that a thorough appraisal of each employee takes place at least 2 months before the end of the first year of employment

7. Unfair dismissal • Less than one year…OK…BUT – Unfair Dismissal Exceptions - a claim for unfair dismissal can be made if the employee has been employed for less than onecontinuous year if: • the reason for dismissal was because the employee was connected with a Trade Union • the reason for dismissal was because the employee had exercised one of his statutory employment rights • the reason for dismissal was because the employee had made a complaint against the employer relating to a Health and Safety issue • Discrimination

8. Unfair dismissal • What causes unfair dismissal? - dismissal reason for dismissal procedure

9. Dismissal procedure Step 1: Invitation • The employer must set out in writing the employee’s alleged conduct or other circumstances which lead him to contemplate taking action against the employee • The employer must provide the employee with the evidence to support the allegation • The employer must invite the employee to attend a meeting to discuss the matter • The employee must be informed that he is entitled to attend with a colleague or trade union representative

10. Dismissal procedure Step 2: Meeting • The meeting must not take place unless the employee has had a reasonable opportunity to consider his response to the allegation and the evidence • The employee must be allowed and encouraged to have his say • The employee must be questioned on the evidence • The colleague or trade union representative is entitled to be involved in the meeting – can do anything other than answer questions posed to the employee

11. Dismissal procedure Step 2: Meeting (Cont) • Each step under the procedure must be taken without unreasonable delay. • The timing of meetings must be reasonable • The location of meetings must be reasonable

12. Dismissal procedure Step 3: Decision • The employer must inform the employee of the decision in writing • The employer must set out the rationale for the decision • The employer must inform the employee of the right of appeal – the right of appeal must be exercised within five working days of the decision

13. Dismissal procedure Step 4: Appeal • If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting • After the appeal meeting, the employer must inform the employee of his final decision

14. Sickness Absence

15. The facts > • Cost of absence is estimated at £11 billion per year • Equivalent of £400 per year per employee • Equivalent of 7 days per year per employee • Average public sector employee was absent more than 2 weeks • 2 out of 5 employees do not take sickness absence

16. Destroying the myths > • You cannot telephone an employee who is sick at home • You cannot dismiss an employee when the absence is certified by a GP • You cannot dismiss an employee who is still entitled to contractual sickness pay

17. Type of absence > • Categorise the type of absence - unrelated miscellaneous absence - related ongoing absence

18. Type of absence > • Investigation • utilise return to work interviews • monitor the number and pattern of absences • If still not clear • listen to the gossip • utilise home visits • consider the need for a medical report

19. Unrelated Miscellaneous Absence

20. Unrelated miscellaneous absence > • Disciplinary action • invitation • meeting • verbal warning, written warning, final written warning • dismissal with notice

21. Unrelated miscellaneous absence > • When do you take disciplinary action? • When is the absence sufficiently bad to justify disciplinary action? • when it annoys managers, is worse than others and disrupts the working process • when it exceeds a pre-determined trigger

22. Unrelated miscellaneous absence > • How do you set the pre-determined trigger? • are number of days of absence, occasions of absence or a combination the problem • add up the number of days absent • add up the number of days absent and add the number of occasions • add up the number of days absent and multiply by the number of occasions • What is an acceptable level of absence within your business • Set the trigger and follow it

23. Related Absence

24. Related absence > • Find out what is wrong • consultation - talk • medical investigation

25. Related absence > • Consult as early as possible • return to work interview • home visit • call to meeting • What if the employee refuses

26. Related absence > • Medical report • when? • from GP • from independent • What if the employee refuses

27. Related absence > • Think about the possible solution • time • support with medical costs • temporary ‘light’ work • alternative role/ changes to the role – reasonable adjustments • dismissal

28. Related absence > • Dismissal – yes if have evidence that shows • unable to return to present job for foreseeable future • unable to return to any other job for foreseeable future • cannot make adjustments to make above possible

29. Case Studies

30. Case Study One > • You are the factory manager and are called Mr Strict. • Mr Bean has been employed for 6 months. He is aged 52 and has spent most of his life involved in factory work and other quite physical roles. • During the first three months of employment Mr Bean had a good sickness record and was retained after he completed his probationary period. • In the last three months Mr Bean has been absent on three occasions and the self-certification form states as follows: • 1 day ‘Sickness’ • 2 days ‘Sick’ • 1 day ‘Headache’

31. Case Study One > • Mr Bean is employed in a key part of your manufacturing operation. • You are thinking about dismissing Mr Bean because he has less than 12 months service. You are reluctantly persuaded by your HR Manager to hold a return to work interview before you launch into disciplinary action and action dismissal.

32. Case Study One > • Mr Bean informs you at the return to work interview that he is in the process of separating from his wife with whom he has been married for 15 years. • Mr Bean’s wife has left him and he is responsible for his fourteen year old daughter. • Mr Bean feels annoyed that he is being questioned about his absence because a female employee (Mrs Can) who works on the same line has a worse absence record and nothing has been done about it.

33. Case Study Two > • Mr Bean has now been employed for two years. You wish you had sacked him 18 months ago. • Your HR Manager 12 months ago went to an employment seminar at Ward Hadaway and came back enthused and introduced the example sickness disciplinary procedure which had been handed out at the seminar. • The procedure was communicated to all employees. • Mr Bean was issued with a verbal warning under the procedure in January 2007. Mr Bean did not appeal. Mr Bean was absent for 1 day last Monday and before you had time to take any action was absent on Monday, Tuesday and Wednesday this week.

34. Case Study Two > • You do not hold a return to work interview. You invite Mr Bean to attend a disciplinary meeting. Mr Bean attends with his trade union representative. • Mr Bean informs you that his 14 year old daughter is now 16 and pregnant. The reason for the time off last Monday was because his daughter had explained her predicament the night before and was distraught in tears all day on Monday. • Mr Bean also explains that he saw his ex-wife in Newcastle and got into a fight with her new husband on Sunday. Mr Bean could not face work as a result of the injuries on Monday, Tuesday and Wednesday.

35. Case Study Three > • Mrs Can who had a poor sickness record some years ago has not had any absence for 18 months until last week when she was absent for 2 days. This week Mrs Can was absent again for 2 days. • You are inclined to take disciplinary action using the new absence procedure your HR Manager introduced. However, you are persuaded to hold a return to work interview first. • Mrs Can attends the return to work interview.

36. Case Study Three > • Mrs Can informs you that she was diagnosed with cancer last week and that she is likely to need substantial time off for treatment.

37. Your speaker today > Joe Thornhill Tel: 0191 204 4321 Fax: 0191 204 4418 Email: joe.thornhill@wardhadaway.com