Employment Law FAQs

"Do my employees need a contract of employment?" 

When clients come to us for advice on any given matter, one of the very first things we ask to see is the written documentation which sets out their terms and conditions of employment.

An employer is required to provide its employees with a written statement of terms and conditions of employment (often referred to as a "contract of employment") within two months of their employment commencing.Further, the failure to have written statements of terms and conditions, could increase any tribunal award by two to four weeks’ pay. Remember, contracts benefit both you and your employees. They ensure employees know where they stand and what’s expected of them, and they give you a written record to fall back on if they breach them.

Solution

So, where do you start? What needs to be included? That’s where we come in. We take the complication out of contracts of employment. From help differentiating between the different types and drafting watertight contracts that are bespoke to your business, to ongoing amendments, we’ve got you covered from start to finish. 


"Can I dismiss an employee for making inappropriate comments on social media?"

If you do not have a clear social media policy in place, you need to remember that an employee cannot be dismissed or even disciplined regarding their social media activities. If you end up at a tribunal, they would find the employees dismissal to be unfair.

The reason for this is an employee can only be dismissed or disciplined for misconduct if they knew that the particular action or behaviour would be unacceptable to the practice. If they didn’t, they cannot be accused of any wrongdoing.

You should be clear throughout a social media policy about the distinction between business and private use of social media. Remember your employees are representing you at all times even outside of normal working hours, and what is written on a social networking site can reflect on you.

Solution

We can assist you in the drafting and implementation of bespoke social media policies, tailored to suit your company. We can also provide advice and support when dealing with misconduct issues arising employees’ use of social media, whether within the workplace or outside working hours.  


"How can we handle an employee who is underperforming?"

Allow the employee every opportunity to explain their underperformance. Establish whether there are any underlying reasons for the poor performance, such as disability, health, or personal problems outside of work. If necessary, provide the employee with additional support, supervision and training.

Let the employee know exactly what they need to do to improve their performance. Put targets in writing and include a timescale of how long they have to improve. Ensure that you continue to monitor their performance and meet with the employee frequently and note their progress.

When performance problems persist or escalate these should then be dealt with on a formal basis. Ensure you follow a fair procedure, as defined in your company capability procedure.

It may be reasonable to dismiss an employee who is not meeting your required standards as long as you have followed a fair and legal procedure.

Remember, an employee with more than two years’ service who is dismissed on grounds of incapability may bring an unfair dismissal claim.

Solution

If you would like to develop a capability policy, or have an employee who is underperforming, call us for a free initial consultation for specific guidance tailored to your individual case. 


"How can we manage a company restructure?"

If you are looking to make your business more efficient by restructuring and making employee redundancies, we can guide you through the process. Often employers fall into the trap of using redundancy as a non-contentious way to end an employee’s employment contract. However, redundancy has a specific meaning.

Broadly speaking, redundancy situations fall into three categories:

  1. Business closure (that is, closure of the business altogether);
  2. Workplace closure (that is, closure of one of several sites, or relocation to a new site); or
  3. Diminished requirements of the business for employees to do work of a particular kind. 

Unfortunately, you cannot necessarily avoid a claim for unfair dismissal merely because you can show that an employee was dismissed by reason of redundancy and so it is important that you follow a fair procedure, which includes consulting with your employees, and adopting a proper selection process.

 Solution

How we can help you:

  1. We can guide you through the process and ensure you adopt the correct procedure;
  2. We can provide you with relevant advice for each step of the process;
  3. We can draft appropriate letters to provide to employees at each stage; and
  4. We can advise if a settlement agreement may be appropriate. 

 

"How do I dismiss an employee for gross misconduct but avoid a unfair dismissal claim?"

Gross misconduct is an act which is so serious that it justifies dismissal without notice.

Examples of gross misconduct include theft, fraud, violent or intimidating behaviour or damage to property. In your Employee Handbook, you should set out examples of acts which will be considered gross misconduct and include any conduct specific to your sector.

Even in cases of gross misconduct, you still need to follow a fair procedure. If you do dismiss the employee instantly, it is likely that you will face a claim of unfair dismissal.

When dealing with gross misconduct, you need to follow your disciplinary procedure and the ACAS Code of Practice. A fair disciplinary procedure involves investigating the matter, informing the employee of the issue, holding a disciplinary hearing, allowing them to be accompanied, letting them respond to the allegations and giving them the chance to appeal.

Solution

Unfortunately following the legal procedure does not mean that a disgruntled former-employee won’t pursue proceedings though the tribunal. We offer tailored advice and support on how you can stay within the law on matters when dealing with an employee who has committed an act of gross misconduct.


"How do I defend an employment tribunal claim?"

If this happens to you, do not panic. Contact us for advice. Employers who are signed up to the myHR service are insured against such claims (provided they have followed our advice). This means that the cost of defending the claim itself as well as any compensation paid out in settlement of a claim will be covered under the terms of an insurance policy.

However, if you are not yet a SCE Solicitors client, contact us anyway and we will soon assess the case and advise you on the merits of the claim. We will help you prepare and submit a defence to the claim we will also discuss with you, tactics and the options available to you for dealing with the claim.

Solution

The way a claim is conducted is up to you. Some clients want us to take a very ‘hands-on’ approach whilst others simply want to take our advice and instruct us to draft an initial response. Whatever way you wish to work, we are on the end of the phone offering clear, concise advice tailored to achieving your objectives.


"An employee has lodged a grievance alleging she is being bullied; what do we do?"

Employer: “We don’t think the manager would bully anyone. How do we handle this?”

When an employee raises a complaint, you should follow your grievance procedure and investigate the complaint to try to establish the facts. This is likely to involve interviewing the employee who has raised the grievance, the employee against whom the grievance is made and any other witnesses.

It may be that the issue can be resolved without the need for disciplinary proceedings, for example by talking to the employees involved informally and monitoring the situation to ensure that the relationship between them improves. In some circumstances, mediation might be appropriate to help them to reach a solution with which they are both satisfied.

If you decide to take no further action as a result of the grievance, it is important that you explain to the person who raised the grievance that you have reached this decision after a full investigation and explain the reasons behind the decision.

If, as a result of the grievance proceedings, you decide to instigate the disciplinary procedure against the employee complained about, you should ensure that you carry out a sufficient investigation and follow the ACAS Code of Practice.

Solution

We can help you by putting in place policies on grievances, bullying and harassment appropriate to your company. We can also provide support at every stage of managing such processes, from helping you to prepare letters to attending meetings.


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