Return to Work Guidance

The government has turned its attention to helping individuals who have taken a career break return to work (Returners). It has now published guidance for employers (the Guidance) and a toolkit designed to help employees returning from such a break. The toolkit includes tips for Returners on how to build confidence and negotiate salaries and flexibility, as well as providing resources for job opportunities and training.

The Guidance:

The Guidance comes when many businesses are taking steps to reassess and update their policies to align with the post-pandemic working landscape. Returners are seeking flexibility in their working patterns and the same can be said for a high proportion of the UK workforce in general. Research from LinkedIn, found that:

• 33% of UK workers would consider leaving their job if returning to the office full-time became mandatory.
• 52% of women had left, or were considering leaving, their jobs due to a lack of flexibility and that the current demand for remote working jobs exceeds the number available in the UK.

The Guidance focuses on those who are returning to work following a period of time away to “take on a caring responsibility” as well as those returning to work after a period of absence for other reasons, such as ill health or an earlier “retirement”.

The objective is to help individuals get back into work and to help businesses recruit from a pool of experienced people. When it comes to flexibility, the Guidance urges businesses to consider where, when and how much they need people to work. Another point is that, by hiring and supporting Returners, a business can demonstrate that it is “open to non-linear career paths” and that it “values the role that caring plays in society” – a message that can help attract and retain diverse talent.

The Guidance also notes that:

• 90% of non-workers want flexible work
• job adverts received 30% more applications when they were advertised as allowing flexible working (versus those that were silent on that point)

The Guidance suggests several ways employers can support Returners in returning to permanent employment. Examples of such initiatives include:

Returnships– fixed-term contracts with the potential for a permanent role at the end (which can be an effective way of facilitating a trial period that benefits both the employer and employee).

Supported hiring– permanent roles, with adjustments made to support Returners;

Return to practice– sector-based training and work experience; and

Fellowships– supported research and development projects which may also lead to a permanent role.

The Guidance emphasises the importance of businesses spreading awareness of these initiatives internally, whilst also actively supporting line managers who are bringing Returners into their team. Managers should be supported both in terms of training and knowledge-sharing to ensure that the business is taking a holistic approach.

Businesses are being encouraged to actively engage with Returners, seek their perspective and listen to feedback. Support can be provided by allocating buddies, mentors and/or coaches. Businesses should then reflect on any feedback, collect additional evidence and implement reasonable changes suggested by stakeholders.

Key takeaways

Given the increasing demand for flexibility both from Returners and other employees, businesses may benefit from implementing programmes such as those proposed in the Guidance. The evidence clearly demonstrates that the wider the variety of jobs, contract types and levels of flexibility offered by a company, the greater the talent pool from which to hire. Therefore, such initiatives should be seen as “a talent attraction strategy and not just a corporate responsibility”.

Bullying in the Workplace

In this blog, we consider how employers can define bullying, spot bullying behaviour by their staff and take effective steps to address it early.

How to define bullying behaviour?

There is no specific legal definition of bullying, which means it is difficult for employers to clearly understand the behaviours, and patterns of behaviour which are generally understood to amount to bullying.

Employers often adopt a broad definition in their anti-bullying policies, although it is often set out without due regard to the employer’s industry, working environment, culture or practices.

According to ACAS in its guide to harassment and bullying in the workplace, bullying can be described as unwanted behaviour from a person or group that is either:

“offensive, intimidating, malicious or insulting”

“an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”

This is a good starting point for any internal policy, training or guidance. However, most anti-bullying policies would benefit from examples of prohibited behaviours which relate to the employer’s particular business.

How can we spot bullying behaviour?

ACAS makes clear that bullying can be a regular pattern of behaviour or a serious one-off incident. The guidance gives examples such as:

• spreading malicious rumours about someone
• consistently putting someone down in meetings
• deliberately giving someone a heavier workload
• excluding someone from team social events
• consistently undermining a manager
• posting humiliating, offensive or threatening comments or photos on social media

Employers should be on the lookout for patterns of inappropriate behaviour across the business.

The dangers of leaving bullying unchecked:

Although there is no express statutory prohibition against bullying in the workplace, employers can still face legal liability if they do not take care to monitor and address any behaviour which might amount to bullying.

For example, affected employees could bring potential legal claims of harassment and discrimination on the basis of a protected characteristic under the Equality Act 2010, personal injury, and/or constructive unfair dismissal arising from the employer’s fundamental breach of contract in failing to prevent the bullying:

If bullying is related to any of the nine protected characteristics under the Equality Act 2010 it could amount to harassment or discrimination, for which the potential compensation awarded by an employment tribunal is uncapped and can include an award of injury to feelings of up to £56,200 (depending on the seriousness of the behaviour).

An employer has a duty of care under common law to provide a safe and stress-free place of work for all staff. Prolonged bullying can deteriorate an individual’s physical and mental health, and potentially give rise to a personal injury claim. A victim of bullying could be signed off by his or her GP with work-related stress and anxiety, resulting in long periods of absence from work. For an employee to have a claim for personal injury, they must show they have a medically recognised psychological injury or illness. However, the court has found that an employer will only be liable for an employee’s ill health in the circumstances if it is on plain notice of an employee’s stress, or vulnerability to stress, and then fail to address the issue. Compensation may be significant: the 2022 Judicial College Guidelines provide guidelines of average compensation for severe psychiatric damage from stress at work of between £54,830 and £115,730.

Where an employee feels they have no choice but to resign because of bullying, this could give rise to a constructive dismissal claim based on the employer’s breach of the implied term of mutual trust and confidence. Note that an employer is unable to argue in its defence that it has the same style of management as the rest of the relevant industry.

Practical steps:

Employers can focus on mitigating the risks of bullying and harassment in the workplace through a number of key steps:

1. Anti-harassment and bullying policy: Employers should have an anti-harassment and bullying policy in place. This will demonstrate commitment to providing a working environment free from bullying, but also demonstrate the employer’s intention that all staff are treated and treat others with respect. The policy should ideally be non-contractual, allowing employers to keep it up to date. It should cover bullying which occurs at work and work-related events, such as business trips or social functions. The policy should define what the employer considers to be bullying, and it should cover the behaviour of staff, but also of third parties such as customers, suppliers or visitors.
2. Training: Regular and effective training in relation to anti-harassment and bullying is a key component of creating a positive and inclusive workplace culture. The whole workforce should understand the contents of the policy and the employer’s behavioural expectations.
3. Be pro-active: All businesses should ensure that supervisors are proactive in looking out for behaviour which may be considered bullying by the recipient. If negative behaviours are caught at an early stage, then this could prevent formal grievances or legal claims which might arise if intimidating or offensive behaviour is not challenged. As well as the general training recommended above, consider whether specific training in feedback, supervision, delegation or other management skills should be provided for managers.
4. Deal with grievances and complaints promptly: When handling a bullying complaint from an employee who suffered or witnessed alleged bullying, employers should deal with the matter as quickly as possible and in accordance with internal investigation and grievance procedures. Broadly, first talk to the person raising the complaint to understand the issue and what might resolve it. Ensure that you look at the complaint in a way that is fair and sensitive to the person who made the complaint, anyone who witnessed the alleged behaviour, and the person accused of bullying. There will inevitably be sensitivities around confidentiality, the seniority of the individuals concerned, and the likely impact on other employees and the business. A key consideration will also be the necessity of taking disciplinary action against the perpetrator, if it becomes clear that they have behaved in an unacceptable way.

Posted in Bullying and Harassment

A Guide to Redundancy

Redundancy is a painful process for both the employee and the employer. It is a decision that many businesses seek to avoid but sometimes a restructure of the organisation or reducing the number of roles is necessary.
Redundancy occurs where an employee is dismissed for reasons such as:

1. Employer ceasing business
2. Requirements of the business have changed
3. Employer requires less employees
4. Change in work systems (mechanisation etc)
5. Role amalgamation

It is essential when roles are being made redundant the selection and consultation process is fair and objective and those employees who are selected are done so in a transparent and fair manner. Most third-party claims in relation to redundancy are often based on the selection process.

Selection
There are two broad methods of selection for redundancy:

1. Last in First Out
2. Selection matrix: objectively selects employees for a redundancy based on a compiled score of their skills, knowledge, and other relevant criteria. The criteria must be as objective as possible, which should only be based on facts which have been documented and/or raised to the employee prior to the redundancy.

Employers would be bound by the precedent for redundancy selection in the company or agreed mechanisms between a union and the company. It is imperative that businesses are aware of the following two points:

• Custom and practice – what did the company do in previous redundancies if any?
• Agreed procedure – is there a precedent or an agreed procedure in place? This is more commonly seen in unionised work environments.

In terms of the recommended process, employers should make an announcement to the employee(s) – advise them they’re ‘at risk’ of redundancy, explain why this is happening and inform the employee you will then be entering into consultation with them.

Consultation

• Consultation meetings should be arranged with the employee(s), an employee is entitled to bring representation i.e., colleagues/external union official.
• During these meetings it’s important to give the employee(s) an opportunity to have their input/say into the situation.
• Consider proposals for alternative roles/options – implement if feasible.
• If there is no alternative roles/no other viable options – you are looking at proceeding to termination – and give notice of redundancy.
• Ensure notes are taken at each meeting and request that the employee(s) sign these to confirm they are an accurate reflection of the items discussed.
• Consider offering a right to appeal the redundancy decision.
• Redundancy process should not be rushed - there should be at least a minimum of two weeks for consultation.

Award for Upset and Hurt: Case Law Example

Individuals who bring successful discrimination claims are entitled to be compensated for the upset and hurt they have suffered by way of an injury to feelings award. These awards are separate from, and in addition to, compensatory awards for financial loss which are uncapped.
Awards for injury to feelings have been increased for all claims presented on or after 6 April 2023 and are now over double the original rates.
The new bands are as follows:

It is worth remembering that a claimant does not need to prove that they have suffered any ill health or produce medical evidence in order to get an injury to feelings award – although if they do, they may get a higher figure.

The tribunal will consider the extent to which the victim of discrimination has had their feelings injured and will attribute a financial value to that injury. Awards in the upper band are rare and most awards are in the upper lower and middle bands.

Case Law Example:

Mrs. Messum, a qualified executive HR assistant at Bradford, faced discrimination and mistreatment after becoming pregnant. Despite her qualifications, her boss started assigning her physically, unrelated demanding tasks. She was signed off due to pregnancy-related issues and during sick leave, was asked to attend an urgent investigatory meeting. When she could not attend due to illness, her maternity leave was initiated. Later, she was asked to attend the meeting again, in her own home with an 8-week-old baby and if she did not attend there may be disciplinary action.

After she returned to work, she attended the investigatory meeting, during which she was accused of stealing food from the canteen. She said that her manager had given permission for her to take food home when she had worked late and did not have time to take a break. Despite her explanations, she received a verbal warning and her job duties were changed. Her HR duties were taken off her and she was instead asked to process sales orders and, later on, to do housekeeping duties - including laundry. She resigned, claiming unfair dismissal, pregnancy/maternity discrimination, and harassment.

The tribunal ruled:

1. Unfair dismissal: Company actions breached trust, mishandling investigations and changing her role fundamentally.
2. Pregnancy/maternity discrimination: Demoting her and changing her role was unfavourable treatment due to her condition.
3. Harassment: Repeated unwanted contact during her pregnancy and maternity period was deemed harassment.

The tribunal awarded Mrs Messum £18,000 for injury to feelings, an additional ACAS uplift of 25% (because the employer had not followed the Acas Code of Practice) plus interest amounting to £28,000.

This case underscores persistent issues with pregnancy and maternity discrimination, with a significant percentage of mothers facing mistreatment or job loss. Legal protections exist, but many employers still fall short. It's vital for employers to understand their obligations and treat pregnant employees fairly.

Posted in Bullying and Harassment, Employment Tribunals

Bonuses 101: A Guide to Managing Bonuses

Many employers routinely consider the award of bonuses to their staff at this time of year and inevitably this leads to disputes with some staff members about the failure to award a bonus to them at all or at a particular level. In this blog, we set out some factors of which employers should be mindful when making bonus-related decisions.

Entitlement to a bonus

The contractual status of a bonus is a significant factor to consider. Generally, offer letters and employment contracts outline eligibility to earn a bonus without explicitly guaranteeing it. They often state that the bonus scheme's operation and the amount awarded are solely at the employer's discretion. Bonuses are typically contingent upon the employer's business performance, the employee's work performance, or a combination of both during the previous year.

Even if bonuses are described as discretionary, there might still be a contractual entitlement to them implied in the employment contract. This could happen when an employee consistently receives a bonus at a particular level over an extended period due to custom and practice. If a contractual entitlement exists and the employer fails to pay the bonus, it could lead to a breach of contract claim or a complaint about an unlawful deduction from wages. It may also contribute to a constructive dismissal claim. In some cases, bonuses might be factored into loss of earnings awards in unfair or constructive dismissal cases.

The entitlement to a bonus may be contingent upon the employee remaining employed (and not serving notice) at the time of the award and not facing any performance or disciplinary issues. However, in instances where no express condition exists, courts have rejected implying such terms.

Employers should be aware that even if they have the discretion to terminate a bonus scheme, they cannot withhold bonuses that employees have already earned and accrued under the scheme as it was at the time. This means that once employees meet the conditions for earning the bonus, they have a right to receive it.

Exercising discretion to award a bonus

Bonuses are typically evaluated based on objective individual and/or business performance criteria. Employers must clearly define the criteria and decision-makers responsible for awarding bonuses at specific levels. Bonuses may come in various forms, including stock options, subject to the scheme's terms. However, caution should be exercised to avoid conditions that could be seen as a restraint of trade or penalty clause, as these might be deemed void due to public policy considerations.

In cases where bonuses are discretionary, employers cannot exercise their discretion arbitrarily or unfairly. The decision-making process must be carried out in good faith, consistently, and in line with the implied duty of trust and confidence. While equality laws do not require identical treatment of employees, employers should be especially cautious not to discriminate based on any protected characteristics. Ensuring fairness and transparency in bonus allocation fosters a positive work environment and reinforces the employer-employee relationship. Employers should be mindful to avoid any discrimination amongst employees based on any protected ground(s):

• Gender
• Marital status
• Family status
• Age
• Disability
• Sexual orientation
• Race
• Religion
• Member of the Traveller community

Employees on leave

Care should be taken regarding employees absent on sick leave during the performance year.

The general principle in relation to maternity leave is that where a bonus comprises payment for work done, an employer is entitled to make a pro rata reduction in the bonus award for an employee’s absence on leave. However in many cases, there is scope for dispute about whether bonuses are in respect of work done. This area can be fraught with risk, and close consideration should be paid to whether a bonus is expressed to relate to company performance only or in combination with individual employee performance.

Mental Health Adjustments

What are reasonable adjustments for mental health?

Reasonable adjustments are changes an employer makes to remove or reduce a disadvantage related to someone's disability.
Some people might not recognise their mental health condition as a disability, but it's important that employers are aware that it could be. Disability is defined as a mental or physical impairment that has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities.
Employers must make reasonable adjustments for:

• workers
• contractors and self-employed people hired to do the work
• job applicants

Employers must make reasonable adjustments when:

• they know, or could reasonably be expected to know, someone is disabled
• a disabled staff member or job applicant asks for adjustments
• someone who's disabled is having difficulty with any part of their job
• someone's absence record, sickness record or delay in returning to work is because of, or linked to, their disability

Employers should try to make reasonable adjustments even if the issue is not a disability. Often, simple changes to a person's working arrangements or responsibilities could be enough to help them stay in work and work well.

Making reasonable adjustments for mental health
Mental health includes our emotional, psychological and social wellbeing. It affects how we think, feel and behave. If an employee has a mental health problem, it's important their employer takes it seriously and with the same care as a physical illness.
Mental health problems can:

• happen suddenly, because of a specific event in someone's life
• build up gradually over time
• be hard to spot because everyone has different signs and signals
• be hidden because many people find it difficult to talk about their mental health
• fluctuate over time which means that an employee's ability to cope with the demands of the job might change

When making reasonable adjustments for mental health it's helpful to remember that:

• every job is different, so what works in one situation might not work in another
• every employee is different, so what works for one employee might not work for another
• mental health fluctuates over time, so what works for an employee now might not work in the future

Employers and employees should work together to agree and review reasonable adjustments over time to make sure that the adjustments work well.

Benefits of reasonable adjustments for mental health
Reasonable adjustments for mental health can help employees to stay in work while recovering from or managing a mental health condition. They can also help employees work safely and productively.
Reasonable adjustments for mental health can help employers to:

• retain employees, reducing recruitment and training costs
• reduce absence and associated costs
• make sure that people at work are well, safe and productive
• create a healthy work culture, building mental health awareness and demonstrating a commitment to good practice

Responding to reasonable adjustments for mental health requests
As an employer, you should work together with your employee to agree reasonable adjustments for mental health.
Everyone's experience of mental health is different, and mental health can fluctuate over time. This means that identifying, agreeing and monitoring reasonable adjustments can take time. It also relies on you and your employees talking openly so that everyone's needs can be met.

Preparing for a meeting to discuss reasonable adjustments for mental health
Many people find it hard to talk openly about mental health, especially when they are under pressure.
It can be helpful for you to:

• look through any organisation policies relating to mental health, absence and reasonable adjustments – the policies should make it clear what is expected of you and your employee
• think carefully about how confident you feel talking about mental health at work – you might find it useful to learn more about supporting someone with their mental health at work
• put yourself in your employee's position and think about what is going on for them and what they might need to support their mental health at work

What to think about before responding to a request for reasonable adjustments
You should take time to prepare for a conversation with someone about reasonable adjustments.
It's normal for people who are experiencing mental health problems to be unsure about what they need to manage their mental health. Many people might not feel ready to decide what adjustments to suggest. This is why it's helpful to take a flexible approach, regularly monitoring and reviewing what works, and what does not.

There are several things you can think about which could help with deciding what reasonable adjustments will be possible.

1. Look through the examples of reasonable adjustments
2. Think about:

• what might be possible given the employee's job
• what might the impact of these adjustments be on their ability to do the job to a satisfactory level
• what might the impact of these adjustments be to the rest of the team
• could any risks to performance or others in the team be minimised

      3. Get advice from an occupational health professional
      4. An occupational health professional can give you advice on what adjustments might be suitable.

Have a conversation and agree a plan with your employee
You should meet with your employee to discuss reasonable adjustments and agree a plan.
Before the meeting you should:

• agree a time and place for the meeting
• share any policies that are relevant to reasonable adjustments for mental health
• explain to them the meeting is to help find a solution that will help them to stay well at work
• explain to them that some things might be possible and some things might not be but you're willing to support them access adjustments that are reasonable

Some people with mental health conditions find it difficult to concentrate or remember things. It can sometimes be helpful for employees to bring a trusted person to take notes on the conversation for them to refer to after the meeting.
The meeting might include:

• checking in on how they are
• explaining what the organisation policy is on reasonable adjustments for mental health
• asking them what reasonable adjustments they would like to explore and why they think these will be helpful to them
• discussing how the reasonable adjustments could work in practice
• agreeing the reasonable adjustments to try
• agreeing a plan to review and monitor the reasonable adjustments
• sharing what ongoing support is available

After the meeting
After the meeting you should confirm the agreed reasonable adjustments in writing.
Trial and monitor the reasonable adjustments
It's useful to monitor reasonable adjustments once they're in place.
You might sometimes find that reasonable adjustments:

• take time to work well as new routines are established
• need to be adapted to work effectively for everyone
• do not resolve the initial problem and need to be reviewed

Monitor the reasonable adjustments using the approach agreed during the meeting and keep a record of any changes made over time.

Put in place ongoing support and a process to review the reasonable adjustments

Mental health problems can last for a few weeks, months or longer-term. It's important that reasonable adjustments are reviewed on an ongoing basis.
You might find it useful to arrange follow-up meetings to discuss how the work adjustments are working. These meetings might be weekly, monthly or less frequently depending on the situation.

Before the meeting it can be helpful to:

• agree with your employee when and where the meeting will take place
• how you and your employee will know if the reasonable adjustment is working or not
• agree what to do next if the reasonable adjustment is not working

Posted in Health & Safety

Following GDPR Guidelines

General Data Protection Regulation (GDPR) is a hot topic right now. GDPR is the toughest privacy and security law in the world. Even though it was drafted and passed by the European Union (EU), it imposes obligations onto organisations anywhere, so long as they target or collect data related to people in the EU. Under GDPR people have a fundamental right of access to their personal data from data controllers.

Types of data processed
In business there are 3 main types of data that is processed regularly. These are:

• Customer data
• Employee data
• CCTV

When dealing with this data the three key principles to remember are:

• Lawfulness
• Fairness
• Transparency

How to treat the data you process

• Purpose limitation
Personal data should only be collected for specific, explicit and legitimate purposes and not further processed in manner that is incompatible with those purposes.

• Data minimisation
Processing of personal data must be adequate, relevant and limited to what is necessary in the relation to the purpose for which they are processed.

• Storage limitation
Personal data should only be kept in a form which permits identification of data subjects for as long as is necessary for the purpose for which the personal data are processed.

• Integrity and confidentiality
Personal data should be processed in a manner that ensures appropriate security and confidentiality of the data, including protection against unauthorised or unlawful access to or use of personal data and the equipment used for the processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

The four main breaches of GDPR are:
• Unauthorised disclosures
• Unauthorised access
• Hacking
• Integrity

GDPR Guidelines
1. Know what data you have, where you have it and why you have it
2. Be transparent
3. Identify any risks
4. Know your processors
5. Manage any risks

Bright Contracts contains a 'Data Protection' section of the Company Handbook which can be viewed under the 'Introduction' tab. Download a trial of our software to see a sample of this content.

Posted in GDPR

Improving Employees Wellbeing at Work

Employee wellbeing is essential to ensure employees are happy in their job. It is the way employees’ duties, expectations, stress levels and working environments affect their overall health and happiness.

Employee wellbeing involves several categories of wellness, such as:

• Physical Health
• Emotional Health
• Psychological Well Being
• Social Relationships
• Financial Stability

To check how your employees feel with the wellbeing in the workplace, employers should send out a survey to find out information on how employees currently feel as well as what they think can be done to improve wellbeing.

Some ways in with employers can improve wellbeing is by:

1. Social club: companies can set up socials clubs where money is deducted from employees pay check and this goes towards activities that the club run on a regular basis such as a bowling night, crazy golf etc.
2. Walking meetings: if there are meetings ran, allow employees to pop in the headphones and walk and by the time the meeting is over there have got their steps in and some fresh air.
3. Have an intranet: an intranet is a great place to have free resources or information for employees that can improve their wellbeing. On the intranet you can include information on services your company provides such as EAP, healthcare etc. You can include link to risk assessments on Type 2 Diabetes, lung cancer etc as well as apps for mindfulness such as Headspace or Moodlight.
4. Giving back to employees: it is important for employees to be recognised for the wonderful work they do. Employees should consider some benefits for this work such as allowing employees to finish early one day.

Employees wellbeing initiatives are something that need to be done all year round in order to keep your employees wellbeing at a high.

For more information on wellbeing check the blog below:

Wellbeing at Work

Posted in Health & Safety

Managing Annual Leave Requests

With summer coming along soon, annual leave requests may be more frequent however when does an employee’s time-off become an issue? How should managers handle the discussion? Here’s what you need to know and do.

Firstly there are 3 things to consider.

• Communication: Establish well-defined policies about annual leave and make sure everyone in your organisation knows them. Clear policies lead to easier decisions when unusual requests arise.
• Respect: If annual leave policies don’t cover a particular issue, respect your employees by striving to be fair and compassionate in making a decision and presenting it to them.
• Clarity: Do your employees take it for granted that their annual leave requests will be approved? Make sure their expectations are based on actual policies, not informal beliefs based on past behaviour. Again, communication is essential.

There are also some times when you may need to speak with your employees regarding their requests. Consider talking directly with them under any of these circumstances:

1. When the request contradicts company policy: You may need to make occasional exceptions to your annual leave policies, but strive to be consistent in how you enforce the rules. Document the reasons behind your decision when exceptions do arise so you can easily resolve similar situations in the future.
2. When you believe the employee’s absence will have a negative impact: What if a worker wants to go on holiday during a crucial time for your organisation? Instead of simply denying the request, explain the difficulties their absence might cause. Together, you may be able to find a better time for their request.
3. When an employee wants to much time off at once: How long is too long? That depends on your needs and the nature of the employee’s request. It’s one thing if they want to sail around the world, and another if they’re requesting time to care for a sick relative. As you discuss their request, remember that a lengthy absence can burden co-workers who have to pick up the work.
4. When an annual leave request comes with too little notice: Sick days and emergencies can happen to anyone, but an employee who takes frequent last-minute personal days and trips can cripple productivity and impact team morale. A discussion about the effects their behaviour is having on the team can help the employee understand why they need to plan further in advance.
5. When annual leave requests aren’t happening enough: Problematic annual leave requests are easy to spot, but there’s an annual leave issue that’s often over looked - many employees don’t take as much time off as they should. Overworking can take a toll on an employees health and happiness, as well as their job performance. Make a habit of looking at annual leave allowances, and talk to your team about the benefits of taking leave to help foster a culture where time off is encouraged and over-working and burnout is discouraged.

You should ask yourself some questions as well to establish annual leave rules that meet both your business needs and the needs of your employees.

1. How far in advance must employees request time off?
2. Do you have a formal system for requesting time off?
3. Are there times when employees can’t take time off?
4. How do you handle overlapping requests from different employees?
5. How do you keep track of who has taken time off and how much?

You can find more information on annual leave requests here.

Posted in Annual Leave, Employee Handbook

Unfair Dismissal: Case law example

Resignation does not need to be in writing (although it should be if that is required under the contract of employment), it can be given orally or in some cases via conduct. When a resignation is clear and unambiguous there is no obligation on the employer to double check the employee's intentions. However, if the employees resignation is unclear and an employer proceeds in treating the employment as having ended then there may be trouble ahead.

In Cope v Razzle Dazzle Costumes Limited the claimant was a factory worker. She fell out with a colleague who subsequently resigned, accusing the claimant of bullying. When the claimant was made aware of the allegations she requested a meeting with her employers, Mr and Mrs Parker, and said she would resign if things were not sorted out properly. The following day the claimant made two attempts to speak to Mrs Parker who was unavailable on both occasions. On being told this for the second time the claimant said "I'm done", left her factory keys on the counter top and left the building.

The employee whom the claimant had said this to subsequently advised Mr and Mrs Parker that the claimant had resigned. No attempt was made to clarify the situation, despite the claimant texting Mrs Parker later that day to indicate she had attempted to speak to her but couldn't stay at the workplace any longer. The following day she handed in a two week sick note, and a week after that she requested a meeting with the Parkers which took place. It was at that meeting that the claimant was informed that her employers considered her to have resigned and they did not agree to her returning. By this time the employers had also re-employed the employee who had made the bullying allegations.

The claimant was successful in claims for both unfair and wrongful dismissal. The tribunal was of the view that no reasonable employer would have concluded that the claimant had unambiguously resigned, and her subsequent behaviour, in particular the submission of a sick note, was not consistent with a resignation. The tribunal took the view that the employers chose to treat the claimant's actions as a resignation because dealing with a dispute between two employees was disruptive to the business.

It is easy to see why the tribunal came to the conclusion that it did. While announcing she was "done" and handing in her keys may, in some circumstances, reasonably be seen as a resignation, in this case the claimant was due to have 3 days off and she had in the past handed in her keys when off on holiday. The evidence also suggested that the claimant had been in a highly anxious state when she walked out and the act of obtaining a sick note is clearly not consistent with resignation. Treating it as such, to avoid dealing with the allegations of bullying, may have seemed like the easier option at the time but the award of nearly £7,500 in compensation together with the management time and any legal fees involved in defending the tribunal claim has likely given the employers a different perspective on the matter.

The advice for employers is if in doubt check it out. If it is unclear what has happened, or if words may have been said in haste then ask the employee to confirm what their intentions were/are. If words were said in the heat of the moment then consider giving the employee a short period of time to cool off and reconsider. If the contract requires written notice and this has not been given then ask for the resignation to be put in writing. This will avoid any subsequent dispute and a possible Employment Tribunal claim.

Posted in Dismissals, Employment Contract