June 9

Most common employer breaches of the ACAS Code of Practice……..

There will always be times when an employer has to take action and discipline an employee. Mistakes are very often made along the way, especially if the employee in question is dismissed and then submits a claim for unfair dismissal.

During any unfair dismissal claim, the tribunal will examine the procedural fairness of the dismissal and in so doing will take into account the “ACAS code of practice on disciplinary and grievance procedures”. If the employee wins their unfair dismissal claim, the tribunal may increase the award of compensation by up to 25% if an employer unreasonably fails to follow the code.

It is important therefore to note the following areas where employers commonly make mistakes:

1. Not warning the employee of the possible consequences of the disciplinary action

From the outset, the employer must tell the employee the possible outcome of the disciplinary action. In order to give them a fair chance of defending the allegation properly. It should not come as a surprise to the employee later on that dismissal is a possibility.

2. Not setting out the nature of the accusations clearly to the employee

The employer should explain the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of. New allegations that come to light during the investigatory stage can be added to the process, but any disciplinary sanction must be imposed only in respect of allegations that were properly investigated and brought to the employee’s attention as part of the proceedings.

3. Not furnishing the employee with relevant evidence against them

The employer should provide the employee with all the evidence in advance of the disciplinary hearing. Ideally, the evidence should be provided when the employee is invited to the hearing, or at least far enough in advance for them to be able to prepare a defence.

4. Not operating a system of warnings where appropriate

In some cases, the alleged misconduct will be so serious that summary dismissal for a first offence will be justified. However, in cases of minor misconduct, a series of warnings before dismissal will be appropriate.

5. Not allowing the employee to be accompanied at a disciplinary hearing

Although it is a statutory right, the ACAS code reminds employers of the requirement to allow the employee to be accompanied at a disciplinary hearing. The right to be accompanied arises when a worker who is invited by his or her employer to attend a disciplinary or grievance hearing makes a reasonable request for a companion to attend the hearing.

6. Relying on evidence from one particular source with no corroborative evidence

There may be limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction, but an employer should always look for more. Employers should be alert to the problems of relying on one person’s evidence and always look for corroborative evidence.

7. The absence of an adequate appeal stage

The right of appeal is fundamental to ensuring natural justice. Employers should give the employee the opportunity to appeal when the outcome of the disciplinary hearing is communicated to them. Appeals should be unbiased and not be a “foregone conclusion”.

8. Failure to keep clear records of the whole disciplinary process

To stand the best chance of successfully defending employment tribunal claims, employers must keep clear records of each stage of the disciplinary process. It is too easy for claimants to find inconsistencies in the evidence if witnesses have to rely purely on memory.

9. Delays in dealing with disciplinary issues

Most cases should be dealt with in a matter of weeks and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals. However, more complex or difficult cases will inevitably take longer.

10. Having the same person deal with the whole disciplinary process

A common failing found in tribunal claims is that the same individual is in charge of the disciplinary process from start to finish. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although this will not always be practicable, particularly for small employers.

May 2

Six tips for effective probationary periods….

A probationary period is commonly used when an employee joins the organisation and is a useful way of assessing performance. A probationary period can last anything from three months to a year, but typically it is six months. The employer can also reserve the right to extend the probationary period should the need arise by stipulating it in the contract of employment, however, this should not be the norm and should only be agreed if there are special factors that justify it.

No matter how long the Company decides the probationary period should be, it must be clearly communicated to the employee at the outset of their employment.

Despite the presence of a probationary period in most contracts of employment, very often they are not used correctly. I therefore offer six tips for implementing them effectively.

1. Probationary periods can help avoid performance issues later

A probationary period can focus the minds of the employer and the employee to make sure that the new employee is given the support necessary to be able to perform to the required standard.

The employer should discuss the following with the employee within their first week:-
· What they are expected to achieve in their job during the probationary period.
· The core values of the organisation and behaviours expected of the employee.
· The standards of regular attendance expected from the employee.
· Any development required to help the employee to do their job.
· How any problems with performance will be addressed.
· When the probationary period review meetings will take place.

During the probationary period a series of formal review meetings should take place between the new employee and their manager to discuss areas of strength, where improvement is needed, any training requirements and whether or not the required standard is reached.

2. Do not wait until the end of the probationary period before addressing performance issues

Employers should hold regular review meetings with the new employee during the probationary period to give feedback and listen to any concerns the employee may have. Any problems during the probationary period should be discussed ‘in the moment’ rather than waiting for the next review meeting. The aim is to bring about a sustained improvement in performance and to ensure that the employee has had sufficient opportunities to achieve this. If there are performance issues, a plan should be put in place to help the employee to improve.

The probationary period can be extended in appropriate circumstances, but employers should avoid having to extend the period simply because issues have not been dealt with earlier.

3. Consider contractual rights during the probationary period

While probationary periods do not affect employees’ statutory rights, it is open to employers to provide for different contractual rights for employees during their probationary period. For example, the employer could withhold certain contractual benefits like gym membership or life assurance until the employee has successfully completed the probationary period.

4. Termination before the end of the probationary period

If it is clear that the employee is not suited to the job, termination before the end of the probationary period is an option. Employees should be given a fair opportunity to reach the required standard of performance and conduct during the probationary period, but in some situations it will be clear that the employee will not be able to do so, and dismissal before the expiry of the probationary period may be appropriate. The employee will be entitled to notice, or a payment in lieu of notice, in the normal way.

5. Fair dismissal

Full disciplinary procedure is not required when dismissing but employers should still follow a fair dismissal procedure.

It is unlikely that an employee on a probationary period will have the two years’ service required to claim unfair dismissal. However, it is important to note that an employee may have the right to claim discrimination or automatic unfair dismissal from day one of their employment. Employers should, therefore, ensure that they follow a fair dismissal procedure and be able to show evidence of this if the reason for the dismissal is challenged.
The employer must ensure that it follows any contractual disciplinary procedure.

6. Take action to dismiss employee or extend the probation before the probation period has expired

If the probationary period expires without the employer taking action to dismiss the employee or to extend the period, the employee will be presumed to be confirmed in the role, and will therefore be entitled to any extended contractual notice period that applies on passing probation.

April 25

How to handle an under performing employee….

Employees who are not performing to the standard that may be reasonably expected need to be managed. Ignore them at your peril! A manager may be impatient to move them out of the organisation, however, there is a balance between supporting the needs of the business, managing potential legal and reputational risks and running a proper process that gives the employee every chance of performing in the role – or at least giving them the opportunity for them to see for themselves that they are not performing.

Making life difficult

Many employers consider that the normal HR processes for performance management are too long and too employee friendly. The employer is convinced that the employee will never work out and does not perceive the need to put them through a process (in which they may have to invest time) to tell them what they already know.

Some employers avoid the use of process and instead just make life difficult for an employee, in the hope that they will get the message and leave. This is a risky approach given the potential for a constructive dismissal claim and an employer should be dissuaded from such actions.

Increasingly, however, HR professionals are often left trying to defend their performance management processes, even though they have significant sympathy with the views of the business.

Fix it sooner rather than later

What is key is the need to address underperformance as soon as it becomes apparent. The vast majority of underperforming employees have never performed particularly well, they may be given the benefit of the doubt for an extended period after joining and by the time HR become involved, the business has already lost patience.

Where HR takes an increasingly proactive approach, catching up with line managers on a monthly basis until it is clear that their new hires have landed well, underperformance is able to be tackled almost immediately and well before the business has become frustrated.

Fit for purpose

Is the performance management process that you use fit for purpose? While any performance management process cannot be a sham one, most processes can be rebalanced to help employers move far more quickly towards an exit. Having appropriate performance targets in place, coupled with timely feedback, usually speeds up any exit discussions whether formal or informal.

The other key point to remember is that employees in their first two years can be exited, in most instances, more easily. It is unlikely to be necessary to place an underperforming employee with less than two years’ service in the same performance management process as those longer serving employees. Given the cost, both financial and in management time, of recruiting, it is always wise to have some process to address underperformance, but for those employees with less than two years’ service it can be less rigorous.

All that employers need to be aware of, in exiting employees without a process (or a lighter process) where they have less than two years’ service, is whether there are any protected characteristics that the employee may have to avoid risk of a discrimination claim.

Protected conversations

For those employees with more than two years’ service, the choices are a performance management process or, perhaps, the use of protected conversations which allow the employer to raise the possibility of a termination without the risk of a claim.

This can work well in many cases, but where the employee says “no”, it can often make any subsequent performance management process more difficult, given that the employee knows there is an intent to exit them from the company.

Summary

In summary, these points are important to bear in mind:

* Do not allow concerns about legal risk to prevent effective management of poor performance.
* Provide clear, prompt and constructive feedback where an employee is underperforming.
* Address any barriers to effective performance.
* Set a standard for the employee to meet and allow a reasonable opportunity for improvement.
* Invoke a formal procedure where the employee fails to improve.
* Issue a formal warning if appropriate and monitor the employee’s progress.
* Hold a performance dismissal hearing where the employee fails to improve.
* Consider redeployment as an alternative to dismissal.
* Consider whether or not dismissal is appropriate.
* Keep in mind the option of a settlement agreement.
* Put extra effort into helping an employee reach the required standard if there has been a failure to address underperformance in the past.
* Revert promptly to the formal procedure where an improvement in performance is only temporary.

February 15

Rules for the office romance…….!

It’s the 14th February, and love is likely to be in the air. And seeing that we spend 90% of our day with colleagues within our organisation, chances are that falling in love in or around the office environment is highly likely and is happening now more frequently than ever.

Here are a few tips for budding office lovebirds:

Don’t look up or down
One scenario even more potentially disastrous than dating a colleague is a relationship that crosses the command chain. Fancy having an affair with your boss? Then get ready for a career brick wall if it goes wrong. Similarly, bosses should be extremely careful about the legal implications of a relationship with someone further down the food chain.

There is a caveat here: statistics suggest that people who start a relationship with their boss are more likely to end up marrying them, perhaps because both parties realise just how much is at stake.

Loose lips sink ships
If both employees are at the same level in the company, then the romance should be kept as low-key as possible; an office can be unsettled by rumours and gossip around the water cooler. Also, consider what you put out on social media, especially if you have work colleagues who can read your timeline. If you don’t want to answer awkward questions, don’t give people ammunition.

All workers are equal
There is little an employer can do about a budding relationship. But, as an employee, make sure you treat everyone equally. Just because the new love of your life is sitting five yards away, doesn’t mean they’re always right about work-related decisions. Leave your private life at home, and maintain a sense of professionalism at work.

Not in the kitchen, please
PDAs (also known as public displays of affection) are a no-no in the office. No one wants to walk into the kitchen to find you two squeezed up against the microwave while your lunch goes nuclear. Also, never use emotional language – a relationship is private. If you start an argument or row based on something that has happened outside the office, it can have a catastrophic effect on staff morale and therefore the company’s bottom line.

Over and out

There might come a time when your relationship ends, and you may need to talk to your boss about this. This can be tricky and something which, frankly, your employer probably doesn’t need. Always remember that your boss cannot side with either party if your affair is over; they’ll have to maintain discretion and impartiality.

What both staff and employers need to set out from the very beginning is this: we’re all adults and we understand these things happen from time to time, but there are lines that shouldn’t be crossed. Just as you trust your colleagues to drive the company forward, and use their common sense and initiative to implement procedures and plans, you need to trust anyone you might get involved with romantically to behave themselves at work.

Oh….and please, don’t do anything dodgy on the photocopier.

February 8

The benefits of an ageing workforce……

Older employees are an overlooked and underutilised skill and resource. Here’s how to make the most of them in your business:

1. Don’t assume older people want to retire. You may personally long for the day when you can give up work to do nothing, but remember that others may not. Some people find work rewarding and stimulating and it gives them a sense of purpose. Others need to work for financial necessity. Don’t make the mistake of assuming that your dream is their dream.

2. Don’t assume they are past it. Put aside any outdated ideas you might have about what old people are like. People over the age of 50 today are an entirely different generation to their parents and grandparents. They are vibrant, energetic and have a lot to give to the workforce through their skills and experience built up over many years.

3. Talk to them. Don’t be nervous when discussing future planning and retirement with older people. Ask them what they would like to do and talk about how that might fit in with the plans you have for the business – it is worth considering phased retirement schemes for example, which can be a good option for both sides. And while you’re at it, ask their advice on how they would like to be managed and supported. If you treat the whole experience as a learning curve for both of you, you may come up with some extremely helpful answers which will be useful for dealing with other older employees.

4. Tap into their knowledge. Use their experience to your advantage by setting up mentoring schemes. Older workers can pass on what they know to younger colleagues, who in turn can give their own insights into new approaches to work. And don’t assume older people are technology-illiterate either. They can be just as good at using new technology as anyone else.

5. Don’t patronise them. Don’t talk down to them and don’t constantly make references to the fact that they are from a different generation. Just because they remember a time before Google existed doesn’t give you a licence to make jokes about ‘the olden days’ in every conversation.

6. Don’t discriminate. Be very careful not to discriminate against older workers in the way that you allocate tasks, or promote, or indeed anything, as you could end up in court facing an unfair discrimination claim. And clamp down immediately on any discriminatory behaviour or remarks by others in the office. Remember that the government abolished the default retirement age of 65 two years ago.

7. Provide training. Older workers might still have another 15 to 20 years left in the workforce, so don’t skimp on training because you are concerned it might not be worth it. It will.

8. Count the advantages. Older workers are more likely to have grown up children than small ones so are less likely to need to be absent for childcare reasons, or to need maternity or paternity leave. They are also less likely to turn up to work tired and hungover after a big night out. Think about it. They could actually be the most reliable workers you will ever have.

December 9

Avoiding the perils of social media at the Christmas Party

The growing use of social media adds the most significant peril to the known dangers of the office party. While the DJ is still teeing up the last track of the night, Facebook and Twitter may already be humming with material that may cause a business far more profound harm than even the worst excesses of the pre-social media era.

Smartphones in the hands of drunk employees is rarely a good idea, but there’s real potential for boisterous staff to cause their employers embarrassment by posting inappropriate images to social media. Lots of people are now connected to customers and clients via Facebook and Twitter, and others post details of their jobs on their profiles.

It’s important for employers to clearly state in advance that what happens at the Christmas party should stay at the Christmas party. Trying to take action afterwards without having made the policy clear can bring its own problems if aggrieved staff take legal action for what they might feel is unfair treatment.

A ‘twitterstorm’, like its meteorological counterpart, blows up unpredictably and can cause devastating damage. There are a frightening number of criminal and civil wrongs which can be committed in 140 characters or less.

Here are just some of them:

Defamation and trade libel: Hospitality businesses – for very good reason – keep a close eye on their social media presence. A simple update such as “Should never have had the salmon! Been ill all night! #OfficeParty” could spark off others weighing in with tales of horror about the venue in question, and it may all end up in a damages claim.

Breach of the Data Protection Act: Uploading photographs to Facebook or Twitter may be part of a good night out for many, but other people may have good personal reasons to want to keep their images off social media, particularly when looking a bit worse for wear. For example, people involved in acrimonious custody disputes or personal injury claims could suffer serious prejudice by an ill-chosen ‘candid’ snap, taken out of context

Section 127 of the Malicious Communications Act: This prohibits “sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. The prosecution of Paul Chambers – who unwisely tweeted a joke threat to blow Robin Hood Airport sky-high if it didn’t “get its act together” – shows the broad scope of the section. Public sector organisations in particular need to take care.

Discrimination: Anyone bringing a discrimination claim based on a hostile work environment is likely to find a rich vein of evidence in material posted on social media. ‘Laddish banter’ is a phrase which should strike terror to the heart of every HR professional. Offensive comments posted under the influence of alcohol will still be there the next day, and office parties are the worst environment for bringing out such material.

Harassment and stalking: Posting suggestive comments on someone’s Facebook page or persistently tweeting when they’ve indicated no further interest may well fall foul of the Protection from Harassment Act. So, too, do ‘upskirt’ photographs and other forms of ‘sexting’ if uninvited and unwanted.

Is your business at fault?

In addition to the potential damage to their reputation, organisations are considered to be vicariously liable for their employees’ actions when those take place in the course of their duties or reasonably ancillary to those duties. An office party is a function sufficiently closely tied to an organisation’s business to make vicarious liability a real risk.

How should businesses protect themselves?

As ever, the starting point is a well-drafted employment contract and employee handbook. This needs to contain social media policies which not only tackle employees’ use of ‘official’ social media accounts, but also their own personal Twitter, LinkedIn, Facebook and other accounts.
Furthermore, in advance of the office party, specific effort needs to be made to remind employees of the behaviour expected of them there, and that expectations of proper behaviour at the venue also extend to behaviour on social media before and after the party.

This should include:

• Circulating a memo referencing the social media policy together with information about the party itself
• Defining what the organisation considers ‘proper behaviour’, including warnings about various legal concerns, such as the Malicious Communications Act
• Stating whether there’s a policy on circulating photographs taken at the venue, and if so, what it is. The policy should either be ‘no photographs’ or ‘no uploading without consent of all people involved’. However, no matter what the policy is, it needs to be clearly communicated together with the consequences for violating it.

We hope that we haven’t completely killed the Christmas spirit and we wish you a very Happy Christmas and a peaceful New Year!

November 9

How to attract, motivate and keep your staff….

Today’s employers face major challenges when trying to recruit skilled workers into their organisations – there is a younger workforce with different attitudes about work and a growing population of older workers heading toward retirement.

Few businesses realise how much employee turnover truly impacts their bottom line and thus it is important that businesses improve their ability to attract, retain and improve productivity. One method, suggested, is by applying the following five-step PRIDE process:

P – Provide a positive working environment
R – Recognise, reward and reinforce the right behaviour
I – Involve and engage
D – Develop skills and potential
E – Evaluate and measure

Provide a Positive Working Environment

Wise executives realise the responsibility for creating a positive work environment cannot be delegated. It starts at the top. One of the main reasons employees quit is the relationship with their boss. The fact is many supervisors and managers are unaware how their actions and decisions affect employee turnover. A critical aspect of an effective retention strategy is manager training. Properly trained managers play a major role in an effective recruitment and retention strategy.

Recognise, reward and reinforce the right behaviour

Money and benefits may attract people to the front door, but something else has to keep them from going out the back. People have a basic human need to feel appreciated and proud of their work. Recognition and incentive programs help meet that need. A successful reward and recognition programme does not have to be complicated or expensive to be effective.

One company founder and CEO gives the keys to his BMW M3 convertible to his employees for a week. This creative way to reward employees has a bigger impact than cash!

Another company rewards each employee’s work anniversary with a cake and a £100 for each year employed.

An organisation with lots of drivers reward employees with a “Safety Bonus Programme” – they screen each employee’s driving record twice a year, and anyone who has gained a penalty is removed from consideration. Those employees remaining at the end of the year divide a pot of £1,000.

Another idea is that on Fridays, all employees rotate jobs for one hour. This builds a stronger team, unity, and improves communication within the company.

Involve and engage

People may show up for work, but are they engaged and productive? People are more committed and engaged when they can contribute their ideas and suggestions. This gives them a sense of ownership.

An organisation known for its ability to create and manufacture new and innovative products holds an annual Idea Exposition during which employees display projects and ideas they are working on. This process creates a healthy climate of innovation and engages all those who participate.

Another has a unique way of making its employees feel valued and involved. One wall within the company contains the photographs of all employees who have worked there more than five years. In addition, their “equality” programme goes beyond the typical slogans, posters, and HR policies by ensuring there are no reserved parking spaces or other perks just for executives — everyone is an equal.

Develop skills and potential

For most people, career opportunities are just as important as the money they make. Surveys conducted show that a significant number of employees would consider leaving their present employer for another job with the same benefits if that job provided better career development and greater challenges.

Skilled people will not remain in a job if they see no future in their position. To eliminate the feeling of being in a dead-end job, every position should have an individual development plan.

Evaluate and measure

Continuous evaluation and never-ending improvement is the final step of the PRIDE system. The primary purpose of evaluation is to measure progress and determine what satisfies and dissatisfies your workforce. The evaluation process includes the measurement of attitudes, morale, turnover, and the engagement level of the workforce. Here is a checklist of items that should be included in your evaluation and measurement process:

* Conduct an employee satisfaction survey at least once a year.
* Hold exit interviews for leavers.
* Improve recruitment to ensure the best match between the individual’s talents and job requirements.
* Provide flexible work arrangements which helps, particularly, working parents and older workers.
* Hold managers responsible and accountable for retention in their departments.
* Start measuring the cost of turnover.
* Focus on the key jobs that have the greatest impact on profitability and productivity.
* Examine those departments that have the highest turnover rates.
* Design an effective employee orientation programme.

June 9

Surviving Euro 2016!

Euro 2016 starts on 10 June, with 51 matches due to be played in France over the course of a month. Many matches take place during or close to many employees’ normal working hours and thus employers need to plan ahead to minimise potential disruption.

England, Wales and Northern Ireland are guaranteed three games each at the group stage. England and Wales have been drawn together in the same group. The two countries face each other on Thursday 16 June at 2.00pm, scheduling that is sure to provide a challenge for many employers!

How best to get through the next month ensuring fun is had by all:

1. Deal fairly with competing requests for time off

Euro 2016: UK nations’ group games

England and Wales (Group B)

Sat 11 June 5.00pm – Wales v Slovakia
Sat 11 June 8.00pm – England v Russia
Thurs 16 June 2.00pm – England v Wales
Mon 20 June 8.00pm – Slovakia v England
Mon 20 June 8.00pm – Russia v Wales

Northern Ireland (Group C)

Sun 12 June 5.00pm – Poland v N Ireland
Thurs 16 June 5.00pm – Ukraine v N Ireland
Tues 21 June 5.00pm – N Ireland v Germany

There may well be an increase in holiday requests from employees who want time off to watch matches. Many requests will be for half a day only to watch a particular match, but others will be for a few days to travel to France. It may not be possible to accommodate all requests but employers should deal with requests fairly and consistently – ie on a ‘first come first served’ basis or putting names in a hat.

By setting out in advance how annual leave requests will be dealt with, employers can manage employees’ expectations.

Where holiday requests cannot be granted, it may be possible to be flexible around working hours to allow employees to watch matches provided they have put their hours in.

2. Take steps to control sickness absence

Staff who know their employer will be monitoring sickness absence are less likely to “pull a sickie” to be able to watch a match (or recover from over-celebration (or commiseration) from the night before).
Employers can help to control short-term sickness absence by making their sickness absence policy clear and addressing the situation if they suspect that an employee’s sickness is not genuine.

3. Take advantage of the tournament to boost morale

Employers can use football tournaments like the Euro 2016 to boost morale among staff by screening key matches in the workplace and allowing employees to watch games together during working hours if operational requirements permit. A sweepstake also tends to be a brilliant way to get everyone involved.

4. Avoid problems caused by excessive time-wasting

During Euro 2016, some employers may experience a reduction in productivity due to employees:
• watching matches on their work desktops and laptops (which may also cause problems with the employer’s network);
• watching matches on their own devices; and
• talking about the football.

While some excitement and wanting to keep up with the latest developments is inevitable, employers can take action to deal with excessive time-wasting and misuse of their systems.

5. Take care to avoid discrimination

Employers need to ensure that no particular groups are disadvantaged during Euro 2016. For example, requests for time off and flexibility around working hours by employees who are not following the tournament should also be considered fairly and consistently.

Employees who are foreign nationals may want to follow their own team and any flexibility afforded to England, Wales and Northern Ireland fans should also be extended to them.

6. Make your expectations clear to employees

By setting out their expectations and clarifying their rules in a sporting events policy before Euro 2016 begins, employers can help to avoid issues around misconduct, absenteeism and harassment.

It should be FUN and a great opportunity for all within the organisation (even if they didn’t think they would be remotely interested!) to get involved. Employers who enter into it with the right spirit, making it clear to all that football can be accommodated provided certain rules are abided by, are much more likely to have a workforce fully engaged in their work…until that whistle blows at which point all, including management, can down tools and enjoy – hopefully!

June 6

Are your interns entitled to a salary and annual leave?

With the summer approaching, students or those just leaving higher education, are going to be on the lookout for internships or work experience placements to enable them to gain valuable work experience and improve their CV ahead of any future job application.

Typically these schemes have been unpaid, or the employer simply offers to pay travel or lunch expenses, and organisations have been accused of taking advantage of people without a job and bypassing the laws on the minimum wage.

Tribunals are taking up the cause and a number of recent legal cases seem to say that an intern who does work that would be paid work if done by an employee or contractor, can be a ‘worker’ for the purposes of national minimum wage law. If they are a ‘worker’, you must pay them at least the relevant national minimum wage for their age – even if they are prepared to work for nothing.

Identifying workers

The law defines a ‘worker’ for the purposes of national minimum wage law as someone who has either:
• A contract of employment with you, or
• A contract with you under which they must personally perform work or services for you. The contract can be in writing or expressed orally or implied from the circumstances.

Using this definition, it is usually relatively simple to determine whether an intern is personally providing a service, and thus entitled to the national minimum wage. The fact that there may be no formal written contract in place and that their title or role is described as work experience/internship/voluntary work makes no difference.

A clear example of where an intern would not be personally providing a service, and thus not entitled to the minimum wage, would be where they are simply learning a job by shadowing a member of staff, no work is carried out by the intern, they are simply observing – they would find it difficult to show they were actually providing a service to the organisation.

Exceptions

It is important to be clear about those students who would not be classified as a ‘worker’ in the eyes of the law and therefore would not be entitled to the national minimum wage:
• students on work experience for fewer than 12 months as part of their course
• students on work experience who are still under the school-leaving age (but not school-leavers working in the UK during a gap year)
• some apprentices and some volunteers

An intern is more likely to be classified as a ‘worker’ during their placement if:
• their placement lasts more than a few weeks
• the placement may lead to an offer of permanent, paid work
• the employer is obliged to give them work to do, and they are obliged to do it
• it is real work of the sort a paid employee or contractor would be asked to do
• the business is relying on their specific skills in the tasks they undertake – for example, a marketing student might be asked to draft a market research proposal to put to an external agency
• they cannot come and go as they please

For example, in one legal case a 21-year old worked as an intern on a publishing business’ website for two months. She worked from 10am to 6pm each day, and had been promised payment. At the end of the two month period the company argued she had been working as an unpaid intern.

The Employment Tribunal upheld her claim that she was a ‘worker’ for the purposes of the NMW, even though she had no written contract. She was clearly doing proper work, of real benefit to the business, which would have been done by a paid employee or contractor if she had not done it. It therefore said she should be paid for her work.

In that case, the intern was doing valuable work. Work can be less valuable but still amount to real work – for example, opening or delivering post, stuffing envelopes or photocopying.

Right to paid holidays

As we have established, the majority of interns will be providing a service and thus deemed to be ‘workers’ who will attract at least the national minimum wage. In addition, those ‘worker’ interns will also be entitled to at least 5.6 weeks’ paid holiday per year – or, more likely, the pro-rated equivalent to reflect their part time or short term contracted status. This holiday may be taken during the internship or the intern may be paid in lieu of their accrued but untaken holiday at the end of the internship.

Either way, ensuring your intern is allocated the correct amount of holiday entitlement is as important to remember as paying your intern the national minimum wage.

Consequences of ignoring the law

It is important to know if, based on the reality of the relationship, the intern is a ‘worker’ and therefore entitled to the national minimum wage. The consequences of non-payment can be serious – the employer can be required to pay six years backdated pay and could face criminal charges if found to have wilfully neglected to pay the national minimum wage.

May 5

Social media and its role in dealing with malingerers…..!

Managing sickness absence is rarely a straightforward task and dealing with someone that you suspect is not genuinely ill has always been very tricky.

From the colleague whose weekend of hard partying regularly translates into a “stomach bug” on Monday morning, to the workmate who conveniently develops a migraine whenever a deadline looms, they are in every office. However, while managers are always keen to present their suspicions about malingerers, obtaining credible evidence to back up their suspicions is challenging which makes taking disciplinary action for misconduct very difficult.

Step 1: Identify and assess potential evidence

The first step when dealing with suspected malingerers is to identify and capture available evidence to support the suspicions. An employer who has evidence that an employee is being dishonest by claiming to be off sick when he or she is not, may be able to discipline or dismiss for misconduct.

However, mere suspicions and rumours will not suffice to establish misconduct and credible evidence needs to be obtained – something that has become easier with the burgeoning of social media over recent years as it has the potential to provide a generous source of possible evidence. Data protection and human rights laws do, however, mean that employers need to be careful if, and how, they use this type of evidence.

If evidence from social media is presented to the employer, perhaps via another employee, the employer can use it in the same way as it would any other anecdotal evidence or employee tip off. For example, in a recent case a colleague printed off Facebook entries showing that the employee was attending London fashion week, auditioning models for her own agency and choreographing a fashion show, whilst signed off sick from her work. The tribunal held that the employer was allowed to use this evidence in their disciplinary investigation, and the employee was sacked for gross misconduct.

The credibility of the evidence retrieved from social media will need to be tested in the usual way – for example, did the tip-off come from an employee with a grudge to bear, has the information been taken out of context and are the dates of posting accurate?

Many employers also usually reserve the right to monitor work email accounts but a recent case has highlighted that if information gleaned this way is to be used, then employers need to make sure they act in a proportionate way, balancing an individual’s right to privacy and the employer’s business interests and considering if there is a less intrusive way of achieving the employer’s aim.

Step 2: Review the evidence – is it capability or conduct?

The tribunal recently, helpfully, reiterated for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. If your evidence of malingering looks robust and credible then you should be able to start a disciplinary process for misconduct.

However, a lack of evidence of dishonesty does not mean that an employer is powerless to challenge an employee they suspect is not really as ill as they claim. People will often continue to take unwarranted time off where they believe their absences are passing unnoticed.

Employers can address this by ensuring that return-to-work interviews are carried out following each occasion of absence and encourage line managers to probe further (or push for medical evidence) if faced with evasive or inadequate answers.

For example, you could:

- Ask questions (involving the employee’s GP or occupational health if necessary) about the typical symptoms and development of the health condition and whether the individual is affected in an atypical or unusual way.

- Raise discrepancies between the individual’s stated condition of health, their presentation at interview and any previous reports or documentation.

- See if the individual is co-operating with medical evaluation and treatment (reluctance to do so can be a sign of malingering) and, if not, is there any good reason for this?

Such probing needs to be done carefully. Too blunt an approach, without back-up evidence, carries with it the risk of a claim of a breach of the implied term of mutual trust and confidence (and potential discrimination). However, making it clear to the employee that their repeated absences are not going unnoticed can do wonders for attendance.

Step 3: Give evidence of misconduct, but do not jump the gun

Where an employer believes it has evidence of dishonest behaviour, it is important not to jump to conclusions. Remember that employees do not have to be bed-bound, or even at home, in order to be unfit for work.
An employee posting pictures of himself on holiday or doing sport or other leisure activities may still be genuinely unwell. Many health conditions do not improve as a result of lying in bed – indeed some conditions, for example, mental health issues or bad backs can improve with exercise. Therefore, it is important to carry out an investigation, as you would for any other allegation of misconduct.

Spotting malingerers – potential signs

- Patterns of absence, such as the same day each week.
- Triggers for absence, such as being invited to a disciplinary meeting.
- Reluctance to provide medical evidence or attend appointments.
- Posts on social media.
- Tip-offs from colleagues.
- Reports of activities that seem inconsistent with ill-health, for example: undertaking other work; going on holiday; doing DIY or sport.

Two recent cases highlight this point. In one a community midwife, signed off work due to a knee condition, continued in her second job which was desk-based, one evening a week, and at a time when she would not have been working as a midwife, so she was not being paid twice for the same hours. It was concluded as perfectly acceptable for her to have carried on in the second role, while signed off sick from her role as midwife, so her dismissal on those grounds was unfair.

On the contrary, a hospital consultant was signed off from her NHS role, but still continued to work in a private hospital, while claiming sick pay from the NHS. The tribunal found her behaviour constituted gross misconduct.

Step 4: Remember to follow your procedures

It is imperative to follow a fair procedure however cut and dried the evidence appears. Before disciplining or dismissing the malingering employee for misconduct, you need to follow your own procedures and the Acas “Code on discipline and grievance”, as you would do in any other disciplinary scenario.

You will need to put the evidence to the individual, hear their explanation and consider if that explanation requires further investigation; in this kind of situation, medical evidence may well be needed. You also need to consider the individual circumstances of the case and any mitigating points, such as length of service and previous disciplinary history, as well as how similar cases have been dealt with in the past.

Managing malingerers will never be easy, but the rise of social media and people’s seemingly unquenchable enthusiasm for sharing their lives through this has brought with it a useful source of evidence for employers. Used correctly, it may prove the previously unprovable and may encourage employees to think twice before phoning in with that Monday morning “stomach bug”.

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