Blake Lapthorn green breakfast with Gerry Jackson from Critchleys LLP - 18 May 2011
Blake Lapthorn Employment seminar - employee morale and motivation - 17 November 2011
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Transcript of Blake Lapthorn Employment seminar - employee morale and motivation - 17 November 2011
Employee Morale and Motivation
an employment lawyer’s perspective
Grievances
Session One
Gillian Leach
The Aggrieved Employee
poor performanceabsencedisciplinary problemsresignationsnegative public relationsbad moralewider disputes among the workforceconstructive dismissal, bullying or harassment claims
Drain on the business
falling productivityfrustrated managerstime wastingcustomer criticismET claimsstaff turnovercreates openings for Trade Unions to get involved
Sources of grievance
terms and conditions of employmenthealth and safetywork relationsbullying and harassmentworking practicesorganisational changeunlawful discriminationstress and pressure
Sources not covered today
disciplinary actionredundancytermination of a fixed-termcollective grievances
Variations
bullying and harassment policysafeguarding policyappeals against various decisions e.g. gradingequal opportunities policy
The grievance procedure
non-contractual written policy and proceduregives a framework for processavoids – losing enforceability for post-termination restrictions– claims for damages or injunctions– claims for constructive dismissal
Essentials of the policy and process
how to raise a grievancewith whom to raise a grievancehow to appeal or take the grievance furthertime limits for the procedureexplanation of the right to be accompanied
Recommended extras
obligations of confidentiality under the procedurethe differences between the informal and formal stages of the procedurelevels of management who will consider grievanceshow and when to appealwhen a decision is final
Employment Rights Act 1996
Section 1 statement must include:...a person to whom the employee can apply for the
purpose of seeking redress of any grievance relating to his employment, and the manner in which any such application should be made...If in a document then the document must be reasonably accessible to the employee
Publicise
handbookintranettraining
Adjustments to awards
employee– minus up to 25% for failure to raise a grievance
employer– uplift of up to 25% for failure to follow up a grievance or
apply a reasonable process
WA Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 (EAT)
held that there exists an implied term in all contracts of employment obliging employers promptly to afford employees a reasonable opportunity to obtain redress of any grievances
Abbey National Plc v Fairbrother [2007] IRLR 320
failure to follow a reasonable grievance processwould be a breach of the implied term established in the Goold v McConnell casesufficient to justify a claim for constructive dismissal
General Principles
respond promptlytake grievances seriouslydo not escalate unnecessarilybe sensitive respect confidentialityallow an appeal process
Record keeping
do keep written recordsdo not breach the DPA principles:– do not gather information by deception– ensure records are of good quality– remove unsubstantiated allegations– keep records securely– protect confidentiality
Statements and requests for anonymity
investigator should remain neutralstatements must be in writing ideally have them signed and datedinvestigation report can be substituted in exceptional circumstances
Asda Stores Ltd v Thompson [2002] IRLR 245
caution when giving promises of confidentiality to those giving statementsonly grant anonymity in exceptional circumstances seek corroboration
Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235
consider credibility and weight of evidenceinterview by manager conducting the hearing
Right to be accompanied
contractual or statutory?arises when the grievance is about a duty owed by the employerwho?– colleague– trade union employee– certified workplace trade union representative
others in exceptional circumstances
Keeping control of the companion
written guidelines including confidentialityreasonable time to prepareconduct at the hearing:– putting the case– summing up– respond to opinions but not answer on behalf of
colleague– confer
Investigatory meetings
no right to be accompanied (Skiggs v SWT [2003])unbiased investigatoravoid witch hunts
Overlapping disciplinary and grievance procedures
stalling tactic?disciplinary can be temporarily suspendedif grievance is related to disciplinary action then deal with them together
False allegations
investigate motivationconsider disciplinary action
Appeals
require written groundsrespond promptly new person to hear it if possibleput outcome in writingconfirm if the decision is final
End of session
Benefits – motivators and their pitfalls
Session Two
Gillian Leach
bonussabbaticalsflexible workinghome workingenhanced holiday entitlementloyalty awardsdiscount schemessalary sacrifice
Bonus
motivatorcan be tailored to support cultural or behavioural changecan be linked to productivity or profit
Bonus - pitfalls
confusion over discretionary v contractual written rules need to be:– unambiguous– not discriminatory– communicated at the right time– kept under regular review
issues around parity for:– absences– agency workers
Sabbaticals
effective way to deal with temporary fall in demandholds on to skillsideal for employee who needs some temporary space e.g. to achieve a personal ambition or care for a sick relativepay and benefits can be suspended
Sabbaticals - pitfalls
employee must want to have a breakpredetermined arrangements for returnwritten amendment to contract overlapping absences can make it complex e.g. ill-health or maternitysome benefits are difficult to suspend on a temporary basis
Flexible hours
reduces unscheduled absencesimproved productivity
Flexible hours - pitfalls
administrationworkflow, continuity and covertight written rulescan be inappropriate for very senior or very junior roles
Home working
gives employee more control reduces unscheduled absences
Homeworking – pitfalls
supervisionequipmentHealth & Safetyisolationconfidentiality
Enhanced holiday entitlement
event driven special days e.g.– birthday– celebration– local community event– weather and travel conditions– sporting events
Enhanced holiday entitlement – pitfalls
discriminationworkflow, continuity and coverlimitations on discretionary variationparity with atypical work patternsinterrelationship with other benefits e.g sickness and maternity leave
Loyalty awards
something to share outside workplacepersonal tailored for your culture
Loyalty awards - pitfalls
discriminationparity discretionaryavoid cash equivalents
Discount schemes
open to all
pitfalls– frustration– external provider gets the credit– at mercy of 3T providers– written rules needed if discount is for employer’s
products or services
Salary sacrifice schemes
direct financial gain for employee
pitfalls– regulatory changes– finance team needs to be on the ball– administration costs– complex to explain
End