Managing People

HR policies and procedures can cover a wide range of subjects and can be very useful to set out in writing both what an organisation expects of its staff and to demonstrate the employer’s compliance with its legal obligations. However, employers should also be aware of the potential to be too prescriptive in their policies and procedures as this can sometimes cause more problems than it resolves.

Nice to have or compulsory?

Most policies and procedures are not compulsory for employers to have in place, but there are some exceptions to this:

1. Health and Safety – All employers with more than 5 employees must maintain, in writing, a health and safety policy.
2. GDPR – All employers must have Data Protection Privacy Notices and policies relating to data protection, to ensure compliance with their obligations under the GDPR.
3. Disciplinary and capability – all workers must be given a written statement of terms which must contain disciplinary rules and the procedures for disciplinary decisions and appeals, or refer the employee to some other easily accessible document, such as a staff handbook, containing that information. We would always recommend that these are in a separate document.
4. Grievance procedures – All employers must have a written grievance procedure which complies with certain minimum standards.

However, in addition to these compulsory requirements, there are a number of additional policies which it is sensible for all employees to have in place, either to demonstrate compliance with their legal obligations – for example, equal opportunities – or to assist the employee in its day to day management of employees – for example, IT and Communications Systems.

Some of the policies which we would generally recommend employers have in place include the following:

1. Equal Opportunities
2. Anti-Bullying and Harassment
3. Anti-Corruption and Bribery
4. Whistleblowing
5. Holidays
6. Sickness absence
7. Family Friendly Rights
8. IT and Communication Systems
9. Social Media

There are a significant number of other policies which employers may also want to include in their handbooks. However, as a minimum, we would recommend including the above.

Drafting the policies

Drafting polices and procedures can be a very time-consuming job and, given the need to update them as the law changes, it can feel like a never-ending task. It is often helpful not to include in policies details of matters which we know will change on a regular basis – for example, the amount of Statutory Sick or Maternity Pay – but rather simply to refer to the source where that information can be found. It is also helpful not to be too prescriptive where there is no legal requirement for this, both to reduce the level of updating required in future and to minimise the potential for the employer to be tied to a prescriptive policy which is not fit for the particular circumstances which may present themselves.

Contractual or non-contractual?

Most policies should not be contractual and either the specific policies or the handbook should make this clear. The danger in having contractual policies and procedures is that:

1. If an employer fails to follow such policies/ procedures, this could give rise to a contractual claim where there otherwise may not have been one; and
2. It is likely to make out of date/ inappropriate policies harder to change in the future.

We would therefore always recommend that such policies and procedures – including disciplinary and grievance procedures – are stated to be non-contractual and subject to amendment. However, it should be noted that this does not necessarily give an employer ‘carte-blanche’ to change them without consultation, and this will depend on the particular circumstances at the time.

There are a number of pieces of legislation in employment law dealing with a variety of family friendly rights. These can be confusing and complex areas of law, so we always recommend seeking advice from a member of the Employment Team.

General rights during statutory leave

During each of the types of leave mentioned below, employees will remain bound by their contracts of employment. Employees will continue to accrue holidays during such leave, and if an employee is unable to take holiday in the year to which it relates due to their absence on statutory leave, they should be allowed to carry this holiday forward into the next holiday year.

Non-cash benefits will also continue during any such periods of leave, even where the employee is not in receipt of pay. The main exception to this is where such benefits are provided under a salary sacrifice arrangement; in which case employees may no longer be entitled to these benefits where they no longer are in receipt of a salary in order to ‘sacrifice’ the relevant amount. The law on this, however, has been subject to change in recent years, and it is always sensible to take advice.

Generally, employees will not be entitled to receive salary during periods of leave, unless otherwise specified in their contracts. They may, however, be entitled to receive statutory pay for the various types of leave, as set out below. In addition, entitlement to certain bonuses and other payments may continue, even when the employee is not at work/has not been at work for all/part of the year to which the bonus/other payment relates.

Pregnancy and maternity rights

All pregnant employees are entitled to reasonable paid time off to attend ante-natal appointments. Other than the first appointment, employers may ask for evidence of the appointments which their employees need to attend. This may include midwife and other hospital appointments as well as physiotherapy and other specialists as required.

Employers should carry out additional risk assessments for pregnant employees to ensure that their health and safety is protected. What such a risk assessment will entail will depend on the nature of the role and environment in which the employee works. If an employer is not able to adequately protect the health and safety of a pregnant employee – either by making adjustment to their working conditions or offering a suitable alternative role – it may be necessary to suspend the employee on full pay on maternity grounds.

Irrespective of length of service, all employees who are having a baby have the right to take up to 52 weeks’ maternity leave. This leave may commence up to 11 weeks prior to the expected week of childbirth, or earlier in the case of a premature birth before this date. If a child is stillborn after 24 weeks of pregnancy, the mother will remain entitled to maternity leave.

Employees may also be entitled to 39 weeks’ statutory maternity pay, provided that they have at least 26 weeks’ service with their employer by the 15th week before the expected week of childbirth, and provided they meet the relevant earnings requirements. This is paid at the statutory rate in force from time to time. Any additional pay will be dependant on the employee’s contract of employment. Details of the current rates applicable can be found here.

When an employee informs their employer of the day on which they intend their maternity leave to commence, the employer must inform the employee of the date on which their maternity leave will end, if they take the full 52-weeks’ leave. Employers will assume the employee will be away for a year unless they are told that the employee wants to return to work earlier.

If an employee wishes to commence their maternity leave before the date notified to the employer, they must give at least 28 days’ notice. The employer will then be required to send to the employee a further notice confirming the date on which their maternity leave will end. If an employee gives birth prior to the date on which they intended their maternity leave to commence, or if an employee is absent from work for pregnancy related reasons in the four weeks prior to the expected week of childbirth, their maternity leave will automatically commence on the next day. The employer must then write to the employee confirming the date on which their maternity leave will end, based on the new commencement date.

An employee can change their mind about when they wish to return to work. If they want to return sooner or later than the original return to work date, they just have to write and tell the employer and give them at least eight weeks’ notice. If an employee does not give at least eight weeks’ notice of an earlier return date, an employer can postpone their return until eight weeks have passed, provided that does not extend beyond the end of the maternity leave period. If the employee decides not to return to work, they must give the amount of notice set out in their contract of employment. If there is nothing in their contract, they need to give at least one week’s notice.

All employees must take at least two (or four, in the case of factory workers) weeks’ compulsory maternity leave. It is a criminal offence for an employer to allow an employee to work during the compulsory maternity leave period. However, beyond the compulsory maternity leave period, how many of the 52 weeks the employee decides to take is up to them. The same amount of maternity leave and pay applies regardless of whether the employee has more than one baby, for example twins.

Returning to work after maternity leave

An employee is entitled to return to the same job after maternity leave if they’ve been away for 26 weeks or less. Their pay and conditions must be the same as, or better than, if they hadn’t gone on maternity leave.

If an employee takes more than 26 weeks’ maternity leave, they have the right to return to the same job, or if that is not ‘reasonably practicable’, to an alternative role on no less favourable terms and conditions of employment than the ones they enjoyed prior to maternity leave.

If an employee is dismissed or subjected to any detriment for any reason related to pregnancy or maternity leave, this is likely to amount to discrimination and any dismissal is likely to be unfair.

If the employee has been on maternity leave for more then 26 weeks

Then it’s unfair dismissal and maternity discrimination if the employer doesn’t let the employee return to work after maternity leave, OR if they offer the employee a different job, without a strong reason. They cannot offer the employee a different job if:

1. their job still exists – for example, they’ve given it to someone else;
2. their job would still exist if the employee hadn’t gone on maternity leave;
3. the new job isn’t something the employee could do; and
4. the new job has worse conditions or pay than their original job; for example, if they used to work part-time, and the new job would be full-time only.

Adoption leave

For parents who adopt, the adopter (or primary adopter, in the case of joint adoptions) may be entitled to take up to 52 weeks’ adoption leave, provided that they meet the relevant eligibility requirements. This will depend on them adopting under the terms of certain schemes (such as through a registered adoption agency; fostering for adoption; or adoption of a child born to a surrogate mother in certain circumstances).

The parent who does not take adoption leave may be entitled to statutory paternity leave, and both parents may be able to take shared parental leave, in accordance with the rules of those schemes.

Employees who take adoption leave – who have at least 26 weeks’ service by the week during which they are notified of having been matched with a child for adoption – may additionally be entitled to statutory adoption pay for up to 39 weeks; provided they meet the relevant earnings requirements. This is paid at the statutory rate in force from time to time. See here for current rates and limits.

Employees who take no more than 26 weeks’ adoption leave are entitled to return to the same job as the one they left. Employees who take more than 26 weeks’ leave will be entitled to return to the same job or, if that is not reasonably practicable, to a suitable alternative role on no less favourable terms and conditions than the one they left. Employees who take, or seek to take, adoption leave should not be dismissed or subjected to a detriment as a result of taking or seeking to take adoption leave; or because their employers think that they might seek to take such leave.

Paternity leave

Paternity leave is a period of one or two weeks’ leave taken in the 56 days following a child’s birth. The leave is available to employees with at least 26 weeks’ service ending by the week immediately prior to the 14th week before the child’s expected week of birth (EWC), provided that the employee:

1. is the child’s biological father or is either the spouse, partner or civil partner of the child’s mother, or (in adoption cases) the adopter;
2. has or expects to have a sufficient degree of responsibility for the child’s upbringing;
3. has not already taken shared parental leave in respect of the same child;
4. gives the employer the required notice and (where requested) the necessary evidence of entitlement.

Paternity leave cannot be taken if the employee has already taken shared parental leave in respect of the same child. It is important, therefore, that any employee wishing to take paternity leave and shared parental leave takes their paternity leave first, as they will otherwise lose the right to take it.

Paternity leave is paid at the statutory rate from time to time in force; unless the employee is entitled to any additional payment under the terms of their contract of employment. Details of the current rate of paternity pay can be found here.

Employees who take paternity leave are entitled to return to the same job as prior to their paternity leave, provided that they have not taken parental leave exceeding four weeks immediately preceding the paternity leave; or taken maternity, adoption, shared parental and paternity leave for a combined period of more than 26 weeks immediately prior to the paternity leave.

Employees who take, seek to take or otherwise exercise any rights in relation to paternity leave – or who an employer believes may seek to take paternity leave – must not be subjected to any detriment or be dismissed for reasons related to the paternity leave.

Shared Parental Leave (SPL)

Shared Parental Leave (SPL) was introduced in 2015 and gave the right to parents of children born or adopted on or after 5 April 2015 to effectively ‘share’ up to 50 weeks of an unused period of maternity or adoption leave. In order for this leave to be taken, the mother/primary adopter must give notice to end her maternity/adoption leave; the remainder of the leave period can then be shared between the parents by way of shared parental leave. This can be taken in one or more ‘tranches’ and both parents may take periods of SPL at the same time. However, the total period of maternity/adoption and SPL taken between the two parents combined must not exceed 52 weeks. As noted above, if the father/other parent wants to take paternity leave, this must be taken prior to any period of SPL.

As well as sharing the leave, the parents may also share any remaining entitlement to pay for the maternity/adoption pay period: 37 weeks in total. Shared Parental Pay will be paid at the statutory rate from time to time in force (see Current Rates and Limits), unless there is a contractual entitlement to a higher rate of pay.

During the Shared Parental Leave period, up to 20 SPL “In Touch” days may be worked. These are separate and additional to any “keeping in touch” (KIT) days which may be taken by the mother/primary adopter during maternity/adoption leave.

On return from SPL, so long as the total amount of maternity/paternity/adoption/shared parental/parental leave is 26 weeks or less, then the employee will have the right to return to the same job as they left. However, if the period of leave exceeds 26 weeks, the right is a right to return to the same job or if that is not reasonably practicable, to an alternative role which is suitable and appropriate; and on no less favourable terms and conditions to the one they left prior to their leave commencing.

The detailed rules relating to Shared Parental Leave are lengthy and complex. We recommend taking advice if you are at all unsure as to your obligations and your employee’s rights in these circumstances.

Parental leave

Any employee who has not less than 12 months service with their employer and has, or expects to have, responsibility for a child is entitled to take up to 18 weeks parental leave to care for that child up until the child’s 18th birthday. The 18 weeks limit is the total limit per child, even if there is a change in employer.

‘Responsibility for a child’ includes birth parents, adoptive parents and those who have legal responsibility for a child. It does not, at the time of writing, include step-parents.

The 18 weeks leave can only be taken in blocks of one week, unless the child is entitled to: a disability living allowance; armed forces independence payment; or personal independence payment – in which case shorter periods of leave may be taken. Usually a maximum of four weeks parental leave may be taken in any year.

Parental leave is unpaid unless there is any provision to the contrary in the employee’s contract of employment.

There are specific rules which apply to applications for leave and agreeing, postponing or refusing any request received. However, as there are additional considerations which should also be taken into account when dealing with any request, we always recommend taking advice if you are at all unsure about your obligations.

Time off for dependants

All employees, regardless of length of service, have the right to take time off to care for dependants. This right only applies in limited circumstances, however, and there is no right to be paid for this time off unless otherwise specified in an employee’s contract.

The right is not to take an unlimited amount of time off. The right is simply to take such time off as is ‘necessary’ in order to take appropriate action in the following circumstances:

1. To provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
2. To make care arrangements for the provision of care for a dependant who is ill or injured;
3. In consequence of the death of a dependant;
4. To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant;
5. To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.

What time is ‘necessary’ will depend on the circumstances. For example, in the case of a child falling ill, it may only be a short time to arrange for someone else to care for the child. On the other hand, if an employee tries – but is unable to make alternative care arrangements – it may be a longer time frame, depending on the circumstances. The employee should let the employer know of the reason for their absence ‘as soon as reasonably practicable’; and they should let the employer know for how long they expect to be absent from work.

If an employee is refused time off to care for dependants or is subjected to a detriment for taking or seeking to take such time off, they can complain to an employment Tribunal. In addition, any employee who is dismissed may claim unfair dismissal and there is no requirement to have the normal two years’ qualifying service in these circumstances.

Parental Bereavement Leave

Any employee who is the parent of a child who dies whilst under the age of 18, including a stillbirth after 24 weeks of pregnancy, is entitled to two weeks Parental Bereavement Leave, to be taken within 56 weeks of the date of death of the child.

In this context, ‘parent’ includes an adoptive parent, prospective adopter, intended parent under a surrogacy arrangement, a parent “in fact” (someone looking after the child in that person’s own home for the last four weeks), or that person’s partner, but not a paid carer.

As with paternity leave, the leave can be taken in two blocks of one week or two continuous weeks and may start on any day of the week. Employees must only give notice the day prior to starting their Parental Bereavement Leave if the leave is taken in the first eight weeks following the date of death. If the leave is taken between weeks nine and 56, then at least a week’s notice must be given.

Employees who exercise their right to take Parental Bereavement Leave are protected from dismissal or detriment as a result of their exercising their right to take leave.

Parental Bereavement Leave is paid at the same rate as Statutory Paternity Pay, provided that the employee had at least 26 weeks’ service by the week prior to the date of death (see Current Rates and Limits for the current paternity pay rate).

‘Flexible working’ is not, necessarily, exactly what it says on the tin. When we talk about ‘flexible working’ in an employment context what we really mean is any working arrangement outside of the ‘norm’ of Monday to Friday, 9am to 5pm. This may include, therefore: shorter hours, compressed weeks, working from home, alternative shift patterns, job sharing and a whole host of other working arrangements. Whilst these can be tricky to manage, they can have significant benefits for employers and employees including increased retention and productivity and decreased sickness absence; as well as improved morale and increased loyalty from staff whose requests are agreed.

All employees with 26 weeks’ service or more have the right to make a formal flexible working request to their employers. They may only make one application in a 12-month period but the right to request is open to all employees and is no longer limited to those with childcare or other caring responsibilities.

The rules setting out the process which must be followed on receipt of a flexible working request were significantly relaxed in 2014. There is no longer a strict time limit for holding meetings to discuss the request and providing a formal response. Employers, however, must deal with any request within a reasonable time frame; and in any event within three months of the request being made.

Making a flexible working request

A flexible working request must:

1. be in writing;
2. be dated;
3. state that it is an application made under the statutory procedure;
4. specify the change that the employee is seeking and when they wish the change to take effect;
5. explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with; and
6. state whether the employee has previously made an application to the employer and, if so, when.

Whilst not compulsory, it is sensible for an employee to set out if the request is being made for childcare or other caring purposes; or if it is considered a reasonable adjustment for a disability.

If a request does not meet the above requirements, it cannot be considered under the formal regulations. It would be sensible, however, for employers either to ask employees to update their request to contain all the relevant information, or to deal with the request in whatever format it is received in order to minimise the risk of claims for constructive dismissal and/or discrimination/failure to make reasonable adjustments.

How to respond to flexible working applications

If an employer proposes simply to accept the request in the form it is received, there is no requirement to hold a meeting; they can just write to the employee to confirm that the request is agreed, the start date and any relevant changes to terms. However, if the request is not to be accepted immediately, then a meeting should be arranged to discuss the request further.

If the employer does not feel able to agree to the request, it is sensible for the employer to consider and discuss any appropriate alternative proposals with the employee; including the reasons why the original proposal is not workable and the reasons why the alternatives would be appropriate.

Once a final decision has been made regarding the request, this should be confirmed in writing; including any offers of alternative working arrangements for the employee to consider or which have been agreed. The employee should also be informed of the right to appeal and the deadline by which any such appeal should be received.

If the employee appeals against the decision, an appeal meeting should be held and the outcome of any appeal confirmed in writing. The process should be concluded within a reasonable time frame, and in any event within three months, unless a longer time frame is agreed between the parties.

Rejecting a flexible working request

Flexible working requests made under the legislation may only be rejected on one of the following grounds:

1. The burden of additional costs.
2. Detrimental effect on ability to meet customer demand.
3. Inability to reorganise work among existing staff.
4. Inability to recruit additional staff.
5. Detrimental impact on quality.
6. Detrimental impact on performance.
7. Insufficiency of work during the periods the employee proposes to work.
8. Planned structural changes.

Employers would be well advised, however, to ensure that the reason for rejecting any request is fully explained, rather than simply pointing to one of the above reasons without further explanation. If no further explanation is given, it can lead to difficulties in defending any claims which may arise. It is also sensible for employers to ensure that they can also evidence the applicability of the relevant reason. For example, if relying on ‘inability to recruit additional staff’ as the reason, then the employer would be well advised to provide some evidence of this such as previous attempts to fill similar roles or comment from recruiters etc.

It should also be noted that ‘the burden of additional costs’ will not, of itself, be a good enough reason to defend any claim of discrimination which may arise as a result of the rejection; for example, if the request is made as a reasonable adjustment for a disabled employee an employment tribunal will want to see further explanation as to why it was not possible to accommodate the request.

The importance of clarity

Flexible working requests are intended to give rise to permanent changes to terms of employment. There is no specific provision for temporary changes or for trial periods. However, if all parties are in agreement, there is no particular reason why this cannot be accommodated. Indeed, if the alternative to a trial period is a simple rejection of a request, it may well benefit all parties to agree to a trial period. We would strongly recommend in such cases, that clear review timelines and criteria are agreed (where possible) for assessing the workability of a particular arrangement to ensure that all parties are clear from the outset what is expected.

Any changes which are made following such a request should be confirmed in writing. Technically, all terms required under a basic contract of employment should be contained in one document. So, depending on the changes made and the impact on the rest of the contract, it may be sensible to issue a new contract following such a request.

If a request leads to a reduction in working hours, employers will need to consider and make clear what impact this will have not only on pay but also on other benefits. It may be that certain benefits, such as holiday entitlement, will need to be pro-rated whereas others, such as insurance benefits, will not be possible to pro-rate. Benefits which will change should be made clear to the employee.

Managing the risks

Throughout the process it is important for employers to keep records of what has been discussed and the reasons for rejecting any particular request or part of a request. Having contemporaneous records can prove invaluable when defending tribunal claims which may arise out of any rejection of such a request.

In certain cases, there will invariably be more of a risk in rejecting a request than in others. For example, if you have an employee who is disabled within the meaning of the Equality Act 2010, employers will have an additional duty to make reasonable adjustments, such as making changes to hours/place of work/ duties etc. Whilst this does not necessarily mean that you must agree to any request regardless of the form it takes, if it would be considered a ‘reasonable adjustment’ then a refusal of the request can give rise to a claim.

In addition, if the request is made in order to assist with childcare, a refusal could amount to direct or indirect discrimination on grounds of sex.

It is important, therefore, to take advice at an early stage if you are at all unsure, in order to minimise such risks. We would always recommend that specific advice is sought in any case where refusing a request could give rise to a discrimination claim.

The laws on equality and discrimination are complex and wide-ranging. It is simply not possible to distil all the details into a single web page. We have, however, sought to provide a simple overview of this important area of law in order to give some basic guidance, and to help you identify ‘red flag’ things to look out for in order to avoid a discrimination claim.

The nine protected characteristics in discrimination law

‘Discrimination’ is a term which is often used colloquially to describe any treatment which is perceived as ‘unfair’ by the alleged victim. However, in a legal sense, it will only amount to discrimination if such treatment is in respect of one of the nine ‘protected characteristics’:

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

‘Unfair’ treatment on any other grounds may well give rise to another claim, such as one for unfair dismissal, but it will not legally amount to discrimination.

The five broad types of discrimination

Generally speaking, the law on discrimination prevents any less favourable treatment of an individual because of, or for reasons related to, their protected characteristics. In certain areas, such as maternity, the treatment complained of does not need to be less favourable – simple unfavourable treatment will count. In relation to disability, the law goes even further and requires employers to take positive steps to ensure that a disabled employee is not subjected to a disadvantage by, for example, making alterations to working arrangements or environments, or providing specialist equipment or support.

The types of discrimination which are prohibited are:

1. Direct discrimination

Direct discrimination arises where someone is treated less favourably than another, simply because of their particular protected characteristic. For example, person A is not offered a job by person B purely because person A is a wheelchair user.

2. Indirect discrimination

Indirect discrimination arises where a person (A) is subject to the same ‘provision, criterion or practice’ as another person who does not have the same protected characteristic, but that provision, criterion or practice disadvantages people sharing that same protected characteristic generally, and person A is disadvantaged by it. For example, if there is a requirement imposed that everyone must work on Fridays, this could have an adverse effect on Muslim employees who wish to observe Friday prayers. If person A personally wishes to observe Friday prayers, then that requirement may amount to indirect discrimination, unless it can be justified.

3. Harassment

Harassment occurs where a person (A) subjects another person (B) to conduct which has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Harassment can also arise where A engages in conduct of a sexual nature which has the same purpose or effect as set out above.

Finally, harassment arises where A engages in unwanted conduct that is of a sexual nature or that relates to gender reassignment or sex; that conduct has the purpose or effect referred to above; and – because of B’s rejection of or submission to the conduct – A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

4. Victimisation

Victimisation occurs where someone is subjected to a detriment because they have – or it is believed they have or may carry out – a ‘protected act’. Protected acts are:

1. Bringing proceedings under the Equality Act
2. Giving evidence or information in connection with proceedings under the Equality Act
3. Doing any other thing for the purposes of or in connection with the Equality Act
4. Alleging someone has contravened the Equality Act

In an employment context, this most often arises where an employee has raised a grievance or brought a claim alleging discrimination and is subjected to a detriment as a result.

5. Instructing, causing, inducing and helping discrimination

This arises if someone:

1. Instructs an individual to do, in relation to a third person, anything that contravenes the Act
2. Causes an individual to do, in relation to a third person, anything that contravenes the Act
3. Induces an individual, directly or indirectly, to do in relation a third person, anything that contravenes the Act
4. Knowingly helps another to do anything which contravenes the Act.

In practice, claims under this heading arise much less often than in the other areas of discrimination legislation.

Associative or perceptive discrimination

Under the Equality Act 2010, an employee is protected against both direct discrimination and harassment based on someone else’s protected characteristic (associative harassment), or based on the perception that the employee has a protected characteristic (perceptive discrimination). There have been successful harassment claims, for example, where the harassers did not believe the ‘victim’ to be homosexual but nonetheless subjected him to regular harassment on the matter of his sexuality. They argued that this could not be on grounds of a perceived characteristic, because they did not believe him to be gay. This argument was unsuccessful and he won his claim; with significant damages being awarded.

Objective justification

In cases of indirect discrimination, discrimination arising from disability, or direct discrimination on grounds of age, it may be possible to justify apparently discriminatory treatment on the basis that it is a proportionate means of achieving a legitimate aim.

The burden will be on the employer to convince a Tribunal that any potentially discriminatory treatment is justified. This will include demonstrating that it was in pursuit of a legitimate aim and that the way in which this was achieved was proportionate: for example, was there another less discriminatory way in which this same aim could have been achieved; and do the employer’s business needs outweigh the discriminatory impact?

Who is protected by discrimination legislation?

It is important to remember that the Equality Act 2010 applies to more than just employees and workers. It also offers protection to:

1. Applicants
2. Partners
3. Contract workers
4. Office holders
5. LLP Members
6. ‘Self-employed’ contractors (provided that they are obliged to perform the work personally and are unable to sub-contract or employ any staff to carry out any part of that work).

We often see discrimination claims from unsuccessful job applicants who consider that either the application process itself, or the decision making process, was tainted by some form of discrimination, including a failure to make reasonable adjustments.

Who is liable?

Discrimination claims can be brought against an employer or a prospective employer. It is also possible for a claimant to name individual employees and/or office holders personally in their claims. We regularly see allegations where an individual decision-maker is accused of discriminating against an employee; for example in disciplining an employee or failing to offer a promotion or other benefit.

The employer may be able to defend discrimination claims by demonstrating that they took ‘all reasonable steps’ to prevent any act of discrimination taking place. If an employee is named as an individual respondent – and the employer is able to successfully demonstrate that it took all reasonable steps to prevent the discrimination taking place – then the employee may find themselves individually liable for any damages which are awarded to the claimant. However, it is important to note that in order to use this defence, an employer will need to be able to demonstrate what steps were taken to prevent the discrimination taking place before it occurred. It will not be enough to show that the employer dealt with it appropriately once it had already taken place. It is important, therefore, to ensure that all employers have appropriate policies in place; that training is carried out on a regular basis; that employers are able to demonstrate that they do not tolerate any form of discrimination; and that any breach of their policies is dealt with swiftly and in line with best practice.

Is discrimination ever lawful?

As well as being able to objectively justify certain forms of discrimination, there are occasions where apparent discrimination will be lawful. In an employment context this arises mainly in the following circumstances:

1. Occupational requirement – where, for example, there is an occupational requirement that an employee is of a particular religious denomination in order to carry out the role: such as a teacher providing pastoral care in a faith school. This may not be applicable, for example, for a science teacher in the same school who is not responsible for pastoral care.
2. Positive action – this is not the same as ‘positive discrimination’, which remains unlawful. However, it does allow employers – who have identified that a certain grouping of people are under-represented in their workforce, or who may have particular difficulties or be particularly disadvantaged – to:
   1. take proportionate measures to enable or encourage persons with the relevant characteristic to overcome that disadvantage, to meet their needs, or to enable or encourage their increased participation; or
   2. to treat a person with the relevant characteristic more favourably than others in recruitment or promotion; as long as the person with the relevant characteristic is “as qualified as” those others.
3. Other exceptions – there are a number of other limited exceptions in the law allowing or requiring apparently discriminatory treatment on certain grounds. For example, there are specific rules allowing discrimination because of age in relation to benefits based on length of service, redundancy pay, national minimum wage and insurance benefits. In addition, there are specific rules relating to pregnancy and maternity designed to protect women; such as the right to be offered any suitable alternative in preference to another employee in a redundancy situation.

The rules referred to above are complicated. It is always sensible to take advice if an employer is at all unsure as to whether the action they are proposing to take is likely to fall within one of these exceptions.

Unfortunately, sickness absence is a simple fact of life for all employers. Inevitably, there will be sickness absence – both short and long-term – which will need careful managing, regardless of the cause of that absence. Whether it arises due to ‘malingering’, more serious long-term health conditions or as a result of threatened disciplinary or performance management, sickness absence can be one of the most tricky things for employers to manage, and in some cases one of the most costly.

However, it is of course important to manage absence, however difficult that may be, as employee absences can be a drain on any organisation. They can make it hard for employers to carry on their business, especially where there is insufficient cover or uncertainty about when someone will return to work. Employers may also incur additional costs, such as having to pay overtime or for agency staff, and employees providing cover can become resentful of having to work harder because of someone’s absence, which can lead to their productivity and morale dropping. It’s no wonder then that frequent or long-term absences may cause employers to consider dismissing someone or giving them warnings.

As usual, it is important to tread carefully when dealing with absence as a failure to handle the process properly can result in a claim of unfair dismissal. In addition, if the reason for absence relates to what employment law defines as a disability there can also be claims for discrimination.

We have set out below an overview of the matters which should be taken into consideration in some of the most common scenarios when dealing with sickness absence. However, due to the nature of sickness absence, every case will be different and we would always recommend that advice is taken on the particular circumstances of any given case.

Capability or Disciplinary?

Formal action arising from sickness absence may be taken under either the disciplinary procedures, or under a capability policy. In cases of long term absence, it will be the capability procedure which will apply and prior to any dismissal employers will need to consider whether their employee is, or is likely to be, fit to return to work and if so, in what timeframe and in what capacity.

In cases of short-term absence, whilst this may well be a capability issue, it may also amount to a disciplinary matter. For example, if absences are for unrelated reasons or where there is a pattern of absence – often around weekends – and there is no underlying health condition causing such absences.

Prior to taking any action, it is important to first identify the correct procedure to follow to minimise the risks of any claims.

Short-term absence

Short term absence may arise for a number of reasons. Sometimes this can be a sign of other problems in the workplace, such as bullying or harassment, which will need to be managed prior to or as part of any absence-management procedure. The causes should therefore always be considered when managing any periods of absence.

As a first step in managing absence, employers would be well advised to ensure that they have appropriate return to work processes in place. This may include carrying out return to work interviews for any absences over three days in duration, and ensuring that return to work forms are completed for all absences to assist with identifying any patterns of absence which may exist.

It can also be useful for employers to identify in their sickness absence policies the level of absence at which formal disciplinary action may be taken, so that employees are aware of the likely consequences of recurrent absences. However, even where such trigger points are reached, it is also important to ensure that when contemplating any formal action, consideration is also given to the reasons for the absence. Whilst reaching a certain ‘trigger point’ should lead to management reviewing an employee’s absence levels, this will not always mean that formal action is appropriate – for example, if absence levels are high due to a known underlying cause or are being otherwise managed through support for work-related or personal issues, it may well not be appropriate to deal with the absence through disciplinary procedures even where trigger points are reached.

That is not to say that formal action can never be taken where there is an underlying cause, but rather that any such action is more likely to fall under the capability procedures rather than disciplinary procedures and is likely to necessitate seeking medical advice before any formal action is taken.

If it is determined that a particular employee’s absence is a disciplinary rather than a capability matter, the disciplinary procedure may be followed. However, when issuing warnings relating to absence levels, these should also include details of the improvement required and the circumstances in which further action will be taken.

Long-term absence / absence due to an underlying cause

Medical report

In almost all cases of long-term absence, or where intermittent short-term absence is or may be due to an underlying cause, it will be necessary to seek medical opinion prior to taking any formal action. The purpose of seeking this advice will be to establish, amongst other things:

1. The nature of the ill health;
2. The likely prognosis;
3. Details of any ongoing treatment which may affect the employee’s ability to return to work/carry out their role;
4. Anticipated return to work date;
5. Details of any adjustments which may assist the employee to return to work/ to attend work on a more regular basis;
6. Whether the ill health is likely to amount to a disability within the meaning of the Equality Act 2010.

Consent

Employers will need to obtain their employee’s consent to obtaining a medical report, and will need to ensure that they comply with their obligations under the GDPR with regards to informing the employee of the reasons for their wishing to obtain that information, and the ways in which this information will be processed.

Employees are of course entitled to withhold their consent to a report being obtained. However, in this instance, the employer will need to make its decisions based only on the information available to the employer at the time – and this may well not be in the best interests of the employee. The employee should be warned of this possibility so that they are aware of the potential impact of their refusal to consent, but ultimately, it will not prevent an employer from following their capability procedure.

Procedure

The precise details of the appropriate procedure to follow will depend on the circumstances of the particular case. However, in general terms, it will be necessary for the employer to meet with the employee to discuss the content of any medical report, the potential implications of the report and the difficulties faced by the employer, any adjustments which can be made, and any other suggestions which the employee may have.

If the employer is contemplating dismissal, the employee should be informed of this possibility and invited to a formal meeting to discuss, at which the employee will have the right to be accompanied. Dismissal should be the last resort, once all other options have been exhausted. This will include looking at adjustments to the employee’s role, whether there are any alternative roles which may exist and any other options which may be available. In some cases, it will also be necessary to give a series of formal warnings prior to any dismissal, although this will depend on the circumstances.

Dismissal in cases of ill health capability will be on notice. Where the employee is not entitled to at least a week more than statutory notice, that notice will have to be paid at full pay, even where the employee is not at work and is in receipt of reduced/ no pay due to the length of time off work. Employees will also be entitled to receive payment in lieu of accrued but untaken holiday, and this may include holiday from previous holiday years where the employee was unable to take it in the relevant holiday year due to their absence.

Employers should always be aware of the potential for claims arising from disability discrimination in cases involving long-term sickness absence/ absence arising from a disability. In addition to ensuring that they have complied with their duty to make reasonable adjustments – including making adjustments as required to the procedure itself – we would always recommend taking advice when contemplating a dismissal in these circumstances in order to minimise the risk of a claim.

Absence pending disciplinary / performance procedures

It is all too common that, when faced with the prospect of disciplinary or performance management procedures, employees will take time off work – often with stress. Whilst of course these procedures can be stressful, it is often the fact that they are hanging over an employee which can increase the stress, rather than the time off work alleviating it.

In the case of disciplinary procedures, it is not normally necessary to postpone these whilst an employee is off sick. Of course, this will depend on the precise facts of the case, but it is always worth taking advice to establish whether it is possible to proceed. It may be necessary in some cases to seek medical advice, but it is often the case that doctors will advise that the procedures are concluded as prolonging it tends to make the employee’s ill health worse.

In the case of performance management, it is likely to be difficult to carry out a proper procedure whilst an employee is absent from work. The purpose of performance management is to give the employee the opportunity to improve their performance – which of course will not be possible if they are not at work. In such cases, it is normally appropriate to manage the employee’s absence in accordance with normal sickness management procedures, and simply to ensure that the employee is aware that the performance management process will be picked up as appropriate following their return to work.

In an ideal world, employees would not need to raise grievances and would be deliriously happy at work with no complaints about their work, managers or fellow colleagues. In the real world, however, all employers will from time to time receive complaints from staff about a variety of matters, which will need to be dealt with to – hopefully – stop little complaints becoming big issues.

For that reason, it is important that all employers have formal grievance policies in place that let staff know how they can raise any concerns they may have in the workplace and that set out how they will be managed by the employer.

What is in a good grievance policy?

There is no ‘one size fits all’ when it comes to grievance procedures. A good policy should include details of:

1. With whom a grievance should be raised;
2. That a hearing will be arranged to discuss the grievance;
3. That an outcome will be sent in writing;
4. That any appeal should be raised in writing; and
5. If an appeal is raised, a hearing will be arranged and the outcome confirmed in writing.

It may also be sensible to include an initial ‘informal procedure’ which can be followed prior to any formal grievance being raised.

There is no need to have a very detailed process, including timescales for responses or stipulating who will deal with each stage of the process; indeed, this can be counter-productive as it leaves little flexibility to amend the process in response to the circumstances involved.

Raising and receiving a grievance

All managers should be made aware of what they need to do if they receive any sort of complaint from a member of staff – whether it is a formal grievance or not. It will be possible to resolve the majority of complaints quickly and easily if they are dealt with early on. All managers should be made aware of the importance of dealing with things quickly and not allowing them to ‘fester’.

If a formal grievance is received – which simply means a complaint in writing – then this should be brought to the attention of the relevant person in order that a formal grievance hearing may be arranged. Those responsible for conducting grievance hearings should, ideally, be given training on how to manage the process and should be supported by another appropriate member of staff to take notes, where possible. The employee who raised the formal grievance should then be formally invited to the grievance hearing in writing.

The grievance hearing

The purpose of the hearing is to allow the employee to raise their concerns with the employer. There is no need to respond to the grievance at the hearing itself. Indeed, it will often be necessary to carry out some further investigation after the hearing before responding in full. The employer may want to ask questions at the hearing in order to ensure that they have fully understood the complaint which is being made; and to ensure that they have full details of anyone who may be able to assist with any investigations which may be necessary.

If either party would like to record a grievance hearing, permission should be sought from all others present before doing so. Covert recordings should not be made. If a recording is made, it is sensible to transcribe the hearing soon afterwards and to let everyone have a copy, although this is not compulsory.

It is helpful, and good practice, at the end of the hearing to sum up the basis for the grievance and the points to which the employer will respond, following any further investigations which may be required. This then allows the employer to ensure that they have properly understood the employee’s concerns and ensures that the employee can be confident that all points will be addressed.

The right to be accompanied at a grievance hearing

Employees have the right to be accompanied to grievance hearings by either a work colleague or a trade union representative, even where the employer does not formally recognise the union.

The role of the companion is to offer support to the person attending the hearing: they may ask questions; put the employee’s case; sum up; respond to views expressed at the hearing; and confer with the employee. They do not, however, have a right to respond to questions on the employee’s behalf or to interfere with the conduct of the hearing.

Sharing the grievance hearing outcome and the right to appeal

Once all investigations have been completed – including any further meetings with the employee if required – the employer should write to the employee to confirm its findings in relation to the grievance. When responding, it can be helpful to address each point identified when summing up the grievance at the original hearing to ensure that all points are covered. The employee should also be informed of their right to appeal and notified to whom any appeal should be addressed and the timescales for this.

It is important to note that the employee is NOT entitled to be informed of any action which has been or may be taken against any other individual implicated in the grievance. The employee should simply be informed that matters have been/will be dealt with as appropriate. If any further information is provided concerning another employee this could amount to a breach of relevant Data Protection legislation and may give rise to a claim from the other employee.

If the employee does appeal then an appeal hearing should be arranged with a manager who was not involved in the original grievance; again, the outcome should be confirmed in writing once the hearing and any additional investigations have been concluded.

Reducing the risk of grievances

When it comes to grievances, the best way to deal with them is, of course, to avoid them in the first place. Whilst there is no fool-proof way to do this, it is a great help to have an open working environment where employees are able to voice their concerns and deal with them on an informal basis. When grievances do arise, dealing with them promptly and thoroughly will also help, as employees will hopefully feel that their complaints are taken seriously and are dealt with professionally and appropriately.

Grievances where it is one employee’s word against another’s can be particularly tricky to manage. It is important to remember, however, that there is no need to have absolute proof of any allegations made. Employers are entitled to make a finding that they believe one employee over another; provided that they are able to explain – and evidence where appropriate – the reasons for their beliefs; and provided that a reasonable investigation has been carried out.

On the occasions where it is not possible to resolve an employee complaint, it is particularly important that detailed notes are retained of all hearings and investigations carried out so that the employer is able to evidence the steps they have taken should the matter lead to a tribunal. In such situations it can be useful to take advice at an early stage to minimise the risk of potentially costly discrimination claims by ensuring that investigations and outcome letters are robust.

If it is not possible to resolve a complaint, employers may wish to consider a ‘protected conversation’ (see Settlement agreements) in order to try and reach a settlement with an employee, rather than run the risk of ongoing issues. We would always recommend taking advice in these cases to ensure that you are properly ‘protected’ and to draft the settlement agreement, should an agreement be reached.

All employers will, at some point, be faced with managing some employees’ conduct and performance which falls below the standards expected of them. It is important, however, to understand that employees need to be managed differently in disciplinary and performance management situations and, therefore, the focus of the associated procedures needs to be different. Also, employment tribunals do not like to see the two procedures confused.

So what is the difference? Put simply:

The emphasis in disciplinary proceedings is, therefore, simply to require the employee NOT to do a certain thing again; whereas the emphasis on performance proceedings is to encourage and enable the employee to DO something – but to do it better/ faster/ more accurately etc. For that reason, we would always recommend that employers have separate conduct and performance management procedures; and that managers are trained to recognise the differences between the two.

Disciplinary procedures best practice

Often minor disciplinary issues can be dealt with informally with a quiet word to the employee and a reminder that the particular behaviour should not take place again. There will invariably be occasions, however, where this will not be sufficient and more formal action is required. Employers should ensure, therefore, that they have the necessary formal procedures in place should they be required.

We would recommend that all employers have written disciplinary procedures which are shared with all employees on commencement of their employment and, importantly, whenever they are updated. These procedures should not be contractual as this allows the employer to change them as required; this will ensure that the employer is not bound by procedures which may, in certain cases, not be appropriate. As a minimum, all procedures should comply with the Acas Code of Practice. Although this is not a statutory requirement, employment tribunals will take into account the terms of the code; and if there is any departure from it, to the detriment of the employee, this will be taken into account when determining whether a dismissal was procedurally fair.

Disciplinary procedures should normally include the following requirements:

1. A full investigation should be carried out before any formal action is taken.
2. The employee should be invited, in writing, to a disciplinary hearing, and this letter must contain:
   1. details of the allegations to be considered;
   2. copies of any relevant evidence, shared a reasonable time prior to the hearing;
   3. details of the potential outcome of the hearing if the allegations are upheld; and
   4. details of the employee’s right to be accompanied to the hearing.
3. The hearing should be conducted, wherever possible, by someone who has not been involved at an earlier stage. Notes should ideally be retained of this hearing.
4. At the hearing, the employee should have a full opportunity to state their case and should be offered the right to be accompanied by either a work colleague or trade union representative.
5. Following the hearing, the decision should be confirmed in writing and the employee should be informed of their right to appeal.
6. If a warning is issued, the outcome letter should set out:
   1. the level of warning being issued;
   2. the time for which it will remain on file; and
   3. the potential consequences of any further disciplinary issues while the warning remains live.
7. If the employee appeals, an appeal hearing should be conducted, wherever possible, by someone who has not been involved at an earlier stage of proceedings.
8. The appeal hearing may be conducted either as a review or a rehearing of the disciplinary hearing: it will depend on the circumstances, including the grounds for appeal, as to which is most appropriate.
9. The outcome of the appeal hearing should be confirmed in writing.

Performance management procedures

As with disciplinary procedures, it is often possible to deal with minor performance issues informally, by offering additional training and support where required. Again there will invariably be times, however, when more formal action is necessary if the informal process does not produce the required improvement in performance within a reasonable time frame.

If that is the case, it is important to have formal performance management procedures – separate to disciplinary procedures – which can be followed. The focus of these procedures will be to assist the employee in achieving the required standards of performance, including providing training and support where required.

A performance management process will normally cover the following elements:

1. Meet to discuss with the employee the concerns regarding their performance; and to establish if there is any underlying reason for the poor performance which means that a formal performance management plan is not appropriate;
2. Write to the employee inviting them to a formal review meeting; including details of the areas in which performance is lacking and enclosing evidence of the same;
3. Hold a formal review meeting to discuss the performance issues; any reasons for the failure to meet the required standards (including any training / support needs); and to agree a formal performance improvement plan (PIP). The PIP should set out:
   1. Required improvement – with SMART objectives;
   2. Timescales over which this should be achieved;
   3. Potential consequence of failure to achieve the required standards.
4. Confirm outcomes in writing, including:
   1. details of the PIP agreed at the meeting;
   2. the level of warning issued for poor performance and the time after which this will expire if the required standards are achieved;
   3. review date(s); and
   4. details of the employee’s right to appeal.
5. If an appeal is lodged, an appeal meeting should be arranged and the outcome confirmed in writing.

As with disciplinary hearings, the employee has the right to be accompanied at the formal review meeting and any appeal; and detailed notes should be retained of all discussions held.

Minimising the risk of disciplinary and performance management procedures

When disciplining or performance managing employees, there may be a number of issues which arise which can impact on how the proceedings are managed; or indeed on whether it is appropriate to continue with the process at all. For example, an employee may allege that the reason for their poor performance stems from bullying or discrimination at the hands of their manager; or that their conduct arose as a result of significant ongoing personal issues.

It is always important to take into account any explanations which may be offered by the employee to ensure that employers do not expose themselves to the risk of unfair dismissal or discrimination (or any other) claims. Employers will need to be able to demonstrate to an employment tribunal that any dismissal resulting from such procedures was fair ‘in all the circumstances of the case’. This will necessarily include, therefore, consideration of any explanations offered by an employee. If there is any uncertainty, we would recommend taking advice prior to taking formal action.

When faced with disciplinary or performance management procedures, another common situation is that an employee will submit a fit note signing them off work. This does not necessarily mean, however, that you cannot proceed with the performance/ disciplinary procedures. Indeed, if an employee is off sick with stress as a result of ongoing disciplinary procedures, it is often the case that their stress will not improve until they are dealt with. Whilst it is harder to manage performance whilst someone is off sick, that does not mean that you cannot start the process; although it is always worth taking advice in these circumstances as to how best to deal with any particular situation.

Employment law can be complex, such as the rules relating to all types of family friendly leave, and employment is a part of the law which can change rapidly.

Our expert employment law specialists are here to assist you. We support you with:

• drafting of bespoke policies and procedures for your organisation, to suit your particular requirements
• advice on the interpretation of, and suitability of, any such policies and procedures, including advice on the appropriate process to follow when any changes are proposed
• handling all aspects of ‘family friendly’ legislation, including: responding to notifications of pregnancy; advising in relation to payment of bonuses and other benefits during leave; dealing with requests for leave; and bringing and responding to tribunal claims which may arise
• responses to flexible working requests, including considering the matters that an employment tribunal would take into account when considering the reasonableness, or otherwise, of any refusal to agree to such a request, and ways in which you can minimise the risk of a claim
• advice on all areas of employment related discrimination legislation, from reviewing the content of policies and procedures to providing training to help you to successfully defend any claim on the basis that you took ‘all reasonable steps’ to prevent discrimination occurring
• the management of sickness absence, whether it is short or long term, and whatever the reasons are for the absence; we help you make reasonable adjustments and minimise the risk of disability discrimination and unfair dismissal claims, as well as dealing with Employment Tribunal claims where these do arise; we also advise on your absence management policies and procedures to ensure that they place you in the best position to manage such situations when they do arise
• reviews of existing grievance policies to ensure that they are fit for purpose and in line with current requirements, or draft new policies where required; where there is a grievance we assist you with responding to grievances, as well as providing advice on how to manage both the grievance procedure and the ongoing employment relationship once a grievance has been concluded
• our considerable experience in advice on how to conduct settlement negotiations and, if a settlement is reached – whether through a protected conversation or otherwise – we can provide the necessary documentation to record the terms of that settlement; we can also provide independent advice upon the terms for employees (provided we do not act for the employer)
• advice on managing disciplinary and performance procedures, including any tricky issues which may arise; if necessary we support and advise you in dealing with employment tribunal claims, and help you to minimise the risks of a successful claim

Our experience covers employers from small to large and covers a wide range of sectors.