FRIDAY HR FAQS – How long do I have to take someone to tribunal?

Hopefully this won’t ever happen, but if you do find yourself in a situation where you feel you have been unlawfully treated at work, you can make a discrimination claim at an employment tribunal and if this is the case there are time limits during which you need to make your claim.

The normal time limit for making your discrimination claim at an employment tribunal is 3 months less one day from the date when the discrimination happened. But before making your claim you should put a request in to ACAS, who will then offer you the chance to try and settle the dispute using early conciliation, which is a free service.  To avoid going to court, most people and employers choose to take part in the early conciliation process to settle their workplace dispute, the conciliator will talk through the issues with you or your representative and work with you and your employer to see if a resolution can be found.

If you choose to take advantage of the early conciliation process, don’t worry, the time limit for raising a claim is paused and extended for the duration of the early conciliation period.

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Situations where you may choose to make a claim maybe in situations of unfair dismissal, discrimination or contractual breaches such as unfair deductions from your pay. When the time limit starts, can in some instances be difficult to identify, but in any of these situations the time limit will generally start to run from when the decision was made, not when you were told about it.  If in a situation of discrimination, it takes place over a period of time, the time limit starts to run at the end of that period. If you’re dismissed, it’s much more straight forward and the time limit simply starts to run from the date your employment is terminated.

An employment tribunal will have the final say as to whether your claim was brought in time and will consider any links between incidents of discrimination, the evidence of an ongoing situation and whether there is a continuing relationship between you and your employer.

Although time limits for bringing a claim in the employment tribunal are quite strictly enforced, an employment tribunal does have discretion to extend the time limits where it thinks necessary to do so and fair to both you and your employer. In making this decision, an employment tribunal will consider the reasons for the delay, whether the delay affects the evidence and your actions once you knew you may be taking action.

If you do make a claim it is important that you try to get as much information about your legal rights as possible first.

If you would like further advice on making claims or if an employee has made a claim against your company, get in touch with HR Revolution:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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FRIDAY HR FAQS – Can an employee be dismissed during their notice period for gross misconduct?

If an employee is dismissed or resigns they’ll most likely stay at work for their notice period, as agreed or outlined in their contract of employment. For some employees this can be a difficult time, as they can loose motivation or feel awkward working in an environment after they have been dismissed.

If an employee were to do anything which is classed as gross misconduct, contrary to some beliefs an employer CAN terminate an employee, even during their notice period as long as the proper process is followed. Giving notice that you are ending the employment relationship does not change the employer’s right to independently end the relationship first if it is appropriate.

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Is it worth it?

In practice, dismissing an employee on their notice period is very rare and is usually not worth the expense and possibility of legal action. Employers cannot make any deductions to pay in respect of time already worked due to an employee leaving before their notice period is up, unless this is specifically allowed by the employment contract.

If you dismiss someone without following the proper disciplinary process you could be subject to an unfair dismissal claim. If this was they case, a tribunal could drag on for months.

With this in mind if you are considering dismissing an employee for gross misconduct whilst they are on their notice period, it would be important to consider the individual situation and the cost and time implications to the business of each case and therefore in these instances we would always recommend seeking professional HR advice.

If you would like HR guidance on any issues you may have in your business get in touch: +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk  where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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HR disaster? HR Revolution can help

You might not be surprised to hear that at HR Revolution high percentage of the enquiries we receive are from businesses who are experiencing what they consider to be ‘a bit of a disaster’, to say the least.

Sometimes, it’s that productivity levels have slumped to the extent that they can’t fulfill their agreements with customers and clients and occasionally, it’s because they’re facing a tribunal.

But often it is relations with employees that have spiraled out of control and they’re not quite sure what to do for the best.

Most businesses recognise that they can’t fix these problems on their own, and they then draft in expert help, this being a sensible course of action.  As good as HR consultant’s are at helping you to sort your people issues, we don’t have a magic wand.

Of course we can help you to create a plan that’s going to give you the best chances of navigating your way out of a tricky situation and make sure that you’re acting on the right side of the law, and your next steps minimise the potential of any long-lasting damage to your business.

But prevention is always better than cure.

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Consider this…

Right now, are there any issues that are bubbling away beneath the surface of your business?  Do you worry that you’re only one mismanaged situation away from landing yourself in hot water?

In so many businesses, the answer here is a very firm YES… Regardless of whether or not you’re willing to admit it.

If so, then don’t wait until the proverbial hits the wall before you do something about it.

Fixing issues before they spiral out of control is going to save you a whole load of time, money, and hassle in the longer term.

Don’t put your business at unnecessary risk.

That’s where HR Revolution can help, we have different HR solutions to help businesses whatever the budget, give us a call today and we can arrange to carry out a no-obligation review get in touch: +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk  where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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FRIDAY HR FAQS – Can I make someone redundant on Maternity Leave?

There is a common misconception you can’t make someone on maternity leave redundant. While it is possible, you should always exercise caution as it is likely to be risky and should only be used as a last resort.

To begin you must ensure that the redundancy is lawful and genuine under these three qualifying reasons:

  • when the business closes down either temporarily or permanently;
  • when the business moves and the employee cannot get to the new place of work;
  • when fewer employees are required for existing work.

If the redundancy qualifies under any of the above, then you must make sure you follow the correct process.

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Under the Equality Act 2010, it is unlawful to disadvantage someone because of their pregnancy and maternity leave and they have protected employment rights regardless of their length of service. This essentially means that their pregnancy or maternity should have no effect on your decision to make the individual redundant and the full redundancy process should be followed. Just because you have managed without someone on maternity leave by distributing their work is also not a valid reason to make them redundant and likely to be classed as unfair dismissal. That said if there is a genuine reason for the redundancy decision that would have been exactly the same if they weren’t pregnant (i.e. their pregnancy or maternity has no bearing on your decision – and you can prove it) you can terminate their employment fairly, as long as you have followed the proper process and are able to prove their maternity or pregnancy has not disadvantaged them if they made a claim.

The redundancy process for these employees includes:

  • Ensuring employees on maternity leave are kept up to date with any Company announcements while they are off.
  • Consulting with employees on maternity leave who are at risk  – redundancy with failure to consult would be classed as unfair dismissal.
  • Selecting those employees for redundancy fairly.
  • Ensuring their notice period and any accrued holiday are paid.
  • Ensure that anyone on maternity has preference for any suitable alternative roles that maybe available.

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If there are multiple people to select from, there would need to be a very clear reason why someone on maternity leave was made redundant over an employee who wasn’t.

HR Revolution would highly recommend that you don’t pick someone on maternity leave or pregnant unless there is a very clear reason for doing this. If there are alternative available roles that are suitable then someone on maternity leave should get preference to minimise any risk of unfair dismissal.

It is also worth noting that if an employee is on maternity leave or pregnant and is made redundant after the 15th week before their due date, they will still be entitled to their full 39 weeks SMP.

Always seek advice before making someone who is pregnant or on maternity leave redundant, HR Revolution can guide you seamlessly through the process to ensure you do not put yourself at risk of an unfair dismissal claim!

Give us a call on: +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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Employment tribunal claims on the rise again

Alarmingly, employment tribunal claims are on the increase again, as highlighted in the recent article from CIPD.

Employment Tribunal statistics for 2018 highlight a significant resurgence in tribunal claims since associated fees were abolished in July of last year. The figures, which take a broad look at the number of claims across all jurisdictions throughout the UK over a financial year, highlight a 66% increase in single claims and a 78% in multiple. These unprecedented amounts have resulted in a significant backlog in the courts, with 54 new Judges having been announced to process the claims for 2019.

Since the payment of Employment Tribunal fees was made compulsory by the then Legal Secretary Chris Grayling in 2013, there have been numerous calls for their removal, with many questioning their fairness and legality. This was finally put to bed in July 2017, with the Supreme Court confirming that the fees were unlawful under both UK and EU law and should be abolished with immediate effect. The result has been a staggering increase in claims across the last three quarters of financial year 2017/18, reminding businesses to take care when considering “high-risk” dismissals.

The most recent statistics focus on the time period between January and March 2018. Compared to the same quarter from last year, claims for equal pay has seen a 262% increase, with failure to inform and consult during redundancy also seeing a rise of 243%. In addition, claims for unauthorised deduction from wages has risen by 189%. Overall, the total number of single claims made between January and March has reached in excess of 9,200, up 118% on the same period during 2017.

Businesses should therefore ensure they are taking all reasonable steps to ensure fair and open processes and policies throughout their working environment. With individuals no now longer financially deterred from bringing a claim, business owners could face considerable fines and associated courtroom costs if they do not properly safe-guard themselves against claims of unfair treatment. Individuals generally have three months in which to register a claim from the date of the act complained of or the effective date of termination.

If you need any HR advice or guidance in relation to tribunals please do get in contact:+44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk where our expert CIPD HR professionals are waiting to help you with any questions you may have.

A version of this article first appeared in CIPD.

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Employment tribunal cases rise after fee abolished

The Ministry of Justice has just released its latest round of data on tribunals, since fees were scrapped last summer.

The number of single claims has almost doubled since fees were found unlawful, with receipts, disposals and caseload outstanding increasing by 90%, 21% and 66% respectively in the three months to December 2017, compared with the same quarter in 2016.

Multiple employment tribunal claims received have increased by 467% – mainly due to a surplus of holiday pay cases that were presented in 2017 but not the year before.

Some 8,173 single claims were filed with the tribunal system over the three months to December 31st, a 16% increase compared to the previous quarter and the highest level seen since the third quarter of 2013.  The total number of cases, both single and multiple claims, rose 32% compared with the previous three month period.

Just under 3,000 single claims per month has become the new normal, the sharp rise seems more dramatic when compared to a relatively low number before fees were abolished.

Of the total claims accepted during the quarter, almost a quarter (22%) were for unlawful deduction of wages, around 13% were equal pay claims, 7.5% breach of contract and 3% sex discrimination.

The stats also show that from the launch of the fee refund scheme in October 2017 to 31 December 2017, 4,800 applications for refunds were received and 3,400 payments made, with a total value of £2.8m.

This upward trend is likely to continue for the next 12 months, but claim numbers would be unlikely to exceed the levels they did prior to fees being introduced.  This is primarily because of the Acas early conciliation scheme, which was introduced at the same time as the fee regime and remains in place.  This makes it mandatory to explore conciliation before lodging a claim and there is no doubt that this has reduced the number of claims making it through.

Employers will be increasingly wary of a claim being brought when handling HR issues.  As always, prevention is better than cure and having a robust set of employment policies in place and training on key areas such as sickness absence and equality will go some way towards mitigating the risks.  Remember, small issues can escalate to big and costly issues very quickly.

If you would like any practical advice or guidance please get in touch and see how we can help: call +44 203 538 5311 or email: hello@hrrevolution.co.uk or visit www.hrrevolution.co.uk  where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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A version of this article first appeared on hrmagazine.co.uk

How to manage gender reassignment in the workplace – Part 2

In yesterday’s blog we talked about discrimination in the workplace, today we discuss disclosing gender identities.

The job applicant: A ‘transsexual’ person is not required to tell a prospective employer they have changed gender when they apply for a job, it should always be up to them to decide whether to disclose or talk about their gender identity – for fear being misunderstood and/or treated unfairly.

The employee: A person who is starting (or intending) to go through gender reassignment will in practice have no choice but to tell their employer.  The employee will then agree with the employer what information can be shared with whom and when.

Other general rules: Employers and colleagues must not ‘out’ an employee or applicant as trans as they could breach laws. Also, apart from in certain circumstances, it is a criminal offence to reveal, without the person’s permission, that they hold a gender recognition certificate or have applied for one.

If an employee or applicant who is trans decides that some information can be shared, the employer should, without pressuring the employee, talk to them about:

  • What they do and don’t want their colleagues to know
  • Who will be told, who will do the telling, where, when and how, and
  • Whether the employee will be there.

It is advisable that communication of any information to be shared is noted and recorded, and happens before the employee changes their appearance.

Employees disclosing their trans identity to a supportive employer can feel more comfortable at work, with a likely improvement in their morale and productivity, too.

Depending on the employee’s role, it may be beneficial to discuss and agree whether some limited information about their trans identity or gender reassignment should be communicated to clients and customers the employee regularly deals with.

These processes are always best supported by HR and it may be advisable to outsource your projects where possible. HR Revolution can carry out any project to ensure the process is performed unbiasedly.

Look out for Part 3 of the blog tomorrow.

If you need further information or guidance, give HR Revolution a call +44 203 538 5311 or email: info@hrrevolution.co.uk or visit www.hrrevolution.co.uk  where our expert CIPD HR professionals are waiting to help you with any questions you may have.

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Employment Tribunal Fees New Ruling – Will it affect you?

After arguably one of the biggest employment law rulings this year, the Supreme Court has ruled that Employment Tribunal Fees are unlawful, that they prevent access to justice and have been abolished with immediate effect. You may now be wondering what this means for you?

Effectively it means it is easier for an employee to take a case to an employment tribunal if they feel they have been unfairly treated or they feel their employer has broken the law.  Since the introduction of fees in 2013, the number of employment tribunals brought to court has dropped by almost 70%.  The removal of fees is highly likely to now mean this number will rise.

With some of the most common errors made during a disciplinary process including; not following the ACAS Code of Practice, including new allegations without investigation, not warning the employee of possible consequences and not checking what penalties are allowed under the disciplinary policy there are many areas that can mean your employee may successfully win in a case against you even if in your eyes they have done something wrong.  With the fees now removed to bring a case against an employer, it is much more likely that these cases will be taken to an employment tribunal and it is therefore essential you have done everything right first time.

“Protect your business from the potential risk of increased claims”

With collectively over 30 years’ experience of handling situations such as this, we at HR Revolution can support you to reduce this risk by giving advice to ensure you are following the correct processes and procedures and ensure you don’t breach any legislation as an employer.  Disciplinary, grievance and redundancy situations are complex and need to be done right for both the employer and the employee.  We can help simply by guiding you through the process to undertake yourself or run the process for you ensuring you avoid the pitfalls as well as any risk of a claim of unfair dismissal.

If you would like to talk to us about how we can help you in any employee relations situation whether you are at the start or mid-way through the process, please contact us at 0203 538 5311 or email info@hrrevolution.co.uk in confidence.

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