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How to Deal With Sexual Harassment

How to Deal With Sexual Harassment

#metoo 

Since the #metoo movement hit the headlines, I’ve seen a big increase in the number of workplace sexual harassment cases. 

In this climate, it can be tempting to focus on protecting those who make allegations. But as we all know, there are always two sides to every story.  

In the eyes of the law, employers are responsible for giving both the person making the complaint and the person being accused a fair hearing.  

In this article, I explore: 

  • what you need to do to protect your business from legal proceedings 
  • how you should deal with people who lodge a claim 
  • and how to treat those who have been accused, falsely or otherwise 

What Counts as Sexual Harassment? 

ACAS defines sexual harassment as unwanted conduct of a sexual nature that violates the dignity of a worker. Or that creates an intimidating, hostile, degrading, humiliating or offensive environment. 

Sexual harassment doesn’t have to be intentionally directed at an individual. Making sexual references, gestures or behaving inappropriately in a sexual way can still count as sexual harassment. Even if there’s no intended victim.  

Critically, the nature of sexual harassment is defined by the person experiencing it. This means something can be considered sexual harassment even if the alleged harasser didn’t intend it to be.

Examples include: 

  • making comments of a sexual nature about an individual’s appearance 
  • asking questions about someone’s sex life 
  • telling offensive jokes  
  • displaying pornographic imagery 
  • sending emails of a sexual nature 
  • making unwanted physical contact 
  • sexual assault 

Legally, all your employees, male and female, at all levels of the company are protected from sexual harassment. Depending on the nature of the incident, they will be covered by employment and/or criminal law.  

As a business owner, you’re responsible for the safety of your people. Which means dealing appropriately with claims of sexual harassment is critical for the security of your business. 

Innocent Until Proven Guilty 

Like many crimes of a sexual nature, harassment often takes place behind closed doors or away from other people. Without witnesses, cases often set one person’s account against the other’s. 

As with any grievance, sexual harassment can only be alleged until a full investigation has taken place. This should align with your grievance policy and procedure which should follow the ACAS Code of Practice 

Investigate Thoroughly and Sensitively 

Although it may feel like there’s a lot of pressure to act in the face of claims of sexual harassment, it’s important that you don’t jump to conclusions.  

Examine 

You will need to conduct an investigation into the alleged sexual harassment. In serious cases you may need to involve the police. Your investigation can run alongside the police investigation and you can take the police’s findings into account.  

Working Arrangements 

Depending on the type of allegation, you may need to consider working arrangements while the matter is investigated. This could include asking the accused to work from home or putting them on paid leave if paths are likely to cross. 

Anonymity 

Experiencing – and being accused of – sexual harassment is often extremely upsetting, so the case needs to be handled sensitively. It’s extremely important that both the claimant and the accused are supported throughout the process. 

The individual making the claim can choose to remain anonymous. However, it’s really important that the person being accused understands the claim being made against them. This will allow them to mount a defence.  

Evidence 

The individual making the claim should provide as much proof as possible to support their case. If emails have been sent they should provide copies of them. Or if there are witnesses, they should be asked to provide evidence.  

Outcomes 

If the outcome of the case is that the accused is guilty, you will need to take appropriate disciplinary action in line with your procedures. What constitutes a reasonable or justified action will depend on the details of the case. However, all outcomes should be fair and consistent. 

Failing to deal with sexual harassment claims fairly for both parties can place your business at risk from tribunal or criminal claims.  

What Happens if the Sexual Harassment Claims Are Groundless? 

When someone is falsely accused, they will likely find the experience traumatic. It’s important that you deal with these individuals fairly as other employees will be watching your approach. If possible, you should integrate them back into the business.

Depending on the circumstances, you may feel that you need to take action against the accuser. This forms part of your duty to ensure your employees work in a safe environment where they are not put at risk. Even from false accusations.

Sexual harassment is one of the most difficult claims to investigate and deal with. As long as you do so legally, promptly and deal sensitively with all parties involved, you will be acting appropriately. Which will safeguard your employees and protect your business. 

Don’t deal with sexual harassment claims alone. Contact Crosse HR for pragmatic support on 0330 555 1139 or at hello@crossehr.co.uk. 

 

Probation and Notice Periods – What You Need to Know

Probation and Notice Periods – What You Need to Know

Probation period not up yet? Thinking of saying goodbye to a new hire? Then something obviously hasn’t worked out. To ensure their departure goes smoothly, you need to give them the right amount of notice.

But how long should that be when an individual is still in their probation period? And what else do you need to consider? Read on for the answers.

Probation – Not Just For Criminals

Most employers operate a trial period for new employees – also known as a probation period – which can vary from a few days to several weeks or months. The length of probation should be clearly set out in the employee’s contract alongside the employee’s standard notice period.

But what happens if they hand their notice in, or you want them to leave, during their probationary period? Does the standard notice period apply? Or can you legally give less notice and hasten their departure?

It Depends on Length of Service

People with probation periods shorter than one month are not entitled to any notice so you can exit them from your firm immediately.

Of course, notice periods work both ways and employees can notify you of their intent to leave too. Which means you could be left in the lurch if someone leaves within their one-month probation period.

That’s why most organisations stipulate a probation period of three months. This often increases to six months for more senior roles and jobs that are difficult to recruit. By extending the notice period, both employers and employees are protected.

There are two types of notice that employees and employers must give.

Contractual Notice

Contractual notice is the agreed notice period, as set out in the employment contract, that must be given by either side to terminate the arrangement.

You can choose to give more notice than legally required. But of course you cannot give less than the law stipulates.

Typically, contractual notice periods are:

  • Less than one week for staff with under one month’s service
  • One week for people with between one and six months’ service
  • One month for people who have recently passed their probation

These notice periods give both sides a degree of protection and tie in nicely with the following legal minimums.

Statutory Notice

If you don’t include a notice period in your employees’ contracts you have to abide by legally predefined notice periods based on the individual’s length of service:

  • Less than one month’s service > no notice
  • One month to two years’ service > one week’s notice
  • Two years’ service > two week’s notice
  • Three years’ service > three week’s notice

The notice periods increase by one week for every complete year of tenure. So someone with eight years’ service would need to give and be given eight weeks’ notice.

Notice Has Been Served – What Happens Next?

This usually depends on who gave notice and the reasons why.

If an employee gave notice and there’s no problem (like performance issues), you will probably want them to work for the duration. This helps your organisation by keeping work moving and giving you time to recruit.

If you’ve given notice to a member of staff during the probation period, it’s usually because performance or attitude is not up to scratch. Which might mean you don’t want the employee to come in.

In this instance, you will still need to pay them for their notice period and you can do this in one of two ways:

  1. Pay in lieu of notice – you end the employment before the individual serves their notice and pay them as if they had worked their notice period.
  2. Garden leave – the employee serves their notice but doesn’t do any work for your company. This might happen if they are leaving to work for a competitor. Again, they must be paid for the full notice period.

Nobody wants to recruit the wrong person for the role. But occasionally it happens. Protect your business by:

  • checking your contracts of employment
  • paying notice periods as required
  • revisiting your recruitment practices to spot any gaps

If you want help protecting your business from the unexpected, get in touch with Crosse HR.

Unfair dismissal or wrongful dismissal?

Unfair dismissal or wrongful dismissal?

In this blog, we explore the differences between unfair dismissal and wrongful dismissal and explain how you can avoid falling foul of either.

The intricacies of employment law often trip business owners up. And one of the most common hazards is dismissing someone in line with the letter of the law. There are two kinds of dismissal that sound similar but mean very different things and you need to avoid getting either of them wrong.

Isn’t Unfair the Same as Wrongful?

Not quite. In fact, in legal terms, they are entirely different concepts, as we explain.

Wrongful Dismissal

This happens when you breach an individual’s contract in the process of dismissing them. The most common breach is failing to give an employee the correct length of contractual or statutory notice.

When are employees protected?

Employees have this right from day one so you need to be vigilant from the outset of a new employment contract. If you cannot settle the issue via conciliation with HR support, you could be looking at a tribunal or court case.

Claims for £25,000 or less would be settled in an employment tribunal whereas those over £25,000, would require a county or high court action.

How much could it cost?

 Damages are not fixed. The figure will be set in reference to the individual’s pay and benefits for the period of their notice had they received it. This can include items like a company car, bonus, health cover and pension payments.

The more senior the employee, the longer their notice period is likely to be and therefore the more costly their claim. It’s also worth noting that it’s unlikely you will be able to recover your court costs.

On the plus side, employees are required to look for a new job as soon as possible. If they secure one and work during what would have been their notice period, their new pay and benefits will be taken into consideration. This could reduce the amount of any monies owed.

What can you do to avoid it?

 If you want to dismiss an employee, ensure you give them notice in line with their contract or statutory minimums. If you want the individual out of the business immediately, you could pay them in lieu of notice. This means paying them all their usual pay and benefits as if they had still been working up until the end of their notice period.

This is a very common practice and in many cases will be cheaper than paying court, salary and benefit costs. You’ll also save time and effort into the bargain.

What else do you need to know?

What constitutes wrongful dismissal is defined by referring to case law. This means that the most recent judgement on the topic sets a precedent by which wrongful dismissal is assessed.

As such, it can change form time to time so you need to keep abreast of any changes. Or work with someone who does that as their day job.

Unfair Dismissal

 Employees are protected by law from being unfairly dismissed. It’s a statutory right and is based on the employer’s reason for dismissal. For you to defend an employee’s claim you must show that:

  • the reason for dismissal is one of the potentially fair reasons listed in the Employment Rights Act 1996 including:
    • capability
    • conduct
    • redundancy
    • statutory illegality
    • some other substantial reason
  • your conduct was fair and reasonable in the circumstances, taking into consideration the size and resources of your organisation. This means:

Both these tests must be passed: if you dismiss for a fair reason but carry out the dismissal unfairly, you will still be deemed to have acted unfairly. The only good news in this scenario is that the amount of compensation might be reduced.

When are employees protected?

Except in specific circumstances, employees must have a minimum of two years’ continuous service to qualify for the right to bring an unfair dismissal claim. And it can only be pursued in an employment tribunal.

How much could it cost?

 Compensation is made up of a basic award (calculated on the basis of age, length of service and salary) and a compensatory award limited to one year’s gross pay or £80,541, whichever is lowest. This takes into account future loss of earnings and loss of statutory rights.

What can you do to avoid it?

If you have an employee who you want to dismiss, you need to tread carefully. The Acas Discipline and Grievance Guide provides step-by-step advice on dealing with challenging situations including capability and conduct.

If you find you have dismissed someone unfairly and you do not have a case to defend, you could reinstate or re-engage your employee.

What else do you need to know about unfair dismissal?

 Sometimes an employee will pursue tandem claims. While this will mean a more complicated case it doesn’t necessarily mean more compensation as an employee would not be entitled to double recovery for the same loss.

What’s the key takeaway from all this? Bring in an HR specialist early on if you’re thinking of dismissing someone. It might cost you a few hours of their time but it’s likely to be a lot cheaper and quicker than getting it wrong and having to pay compensation and undergo a lengthy legal process.

If you need further advice or information on unfair dismissals or wrongful dismissals, then please contact us.

GDPR – What, When and Why

GDPR – What, When and Why

There’s a lot being said about GDPR at the moment so we thought we’d uncomplicate matters and keep it simple with the what, when and why of GDPR from an HR perspective.

What is GDPR?

GDPR stands for General Data Protection Regulations. It’s a piece of EU legislation that harmonises a raft of data protection laws across Europe.

The regulations apply to any company processing the personal data of European citizens, even if that firm is outside the EU. Whether you’re handling this information in relation to offering goods, services or for the purposes of monitoring people’s behaviour, these regulations apply to you.

Why is the Law Changing?

 In recent years, there has been a massive shift in technology and a huge increase in the volumes of data being processed. This has impacted how we gather, store and manage data. And it has also led to rising concern amongst EU citizens with regards how their data is handled and the level of control they have over it.

The existing legislation was published over 20 years ago so it was high time for an update.

When do You Need to Meet Your Obligations?

 You need to ensure you’re compliant by 25th May 2018 and on an ongoing basis thereafter. If you’re found to be in breach, you can be fined up to €20m or 4% of annual turnover, whichever is larger.

What Does GDPR Mean for HR Data?

Employers have been required to provide staff and job applicants with a privacy notice that sets out certain information under the Data Protection Act. However, the GDPR means you will be required to provide additional information like how long you will store an individual’s data for and whether their data will be transferred to other countries.

You’ll also need to let employees know how to request a copy of their own data and how they can apply to have their personal data deleted or rectified. This means ensuring your data is labelled and stored to enable these activities to happen.

It’s important to be aware that employees can retract their consent for you to process their data at any time so you’ll need processes in place to help you swing quickly into action.

If your organisation is in the business of monitoring or processing sensitive data on a large scale, you will need to appoint a data officer. This role is in place to advise you on your obligations under the GDPR, monitor compliance and liaise with the data protection authorities.

What if I have a Data Breach?

 Should you be unfortunate enough to suffer a data violation – be it through disclosure, loss or unlawful means, like a hacking incident – you must comply with the GDPR’s reporting requirements.

You will need to report specific information to the data protection authority within 72 hours. If there’s a major risk to the rights or freedoms of those employees whose data has been impacted, they will need to be notified.

All of which can cause a huge workload and significant embarrassment to your business.

What Steps Should You Take Next For GDPR?

 On a positive note, the GDPR isn’t there to trick businesses into falling foul of the law. It’s aim is to protect individuals’ personal data, a right that all of us are entitled to.

To protect your employees’ data, there are several stages you need to undertake:

  1. Audit – know what employee data you’ve got, where it is, who has access to it and what you do with it. This is a good opportunity to minimise the data you hold by questioning whether you really need it or not.
  2. Gap analysis – are there any holes in your data handling processes that mean you won’t be compliant with GDPR? Identifying whether it’s a necessity to retain and process each piece of data is key as is taking action to correct any issues.
  3. Review privacy notices – this is one area where nearly all employers will need to make changes. Update your privacy notices to ensure they’re compliant whilst also being easy to understand.
  4. Do your legal homework – if you currently rely on existing consent to handle employee data you will need to get employees to sign a new, GDPR-compliant privacy statement to ensure you’re legal.
  5. Prepare your data breach response – you need to have a written policy and process so you can take immediate action should the worst happen. This could include training employees to be able to recognise a data breach and know how to take the appropriate next steps.
  6. Hire your data protection officer if required – be prepared to pay as these roles will be in demand.

The technicalities of the GDPR can feel dizzying, but by taking the steps outlined in this article you’ll have a much better handle on the personal data you manage. Not only will this help you take the actions required to keep employee data and the people it relates to safe from harm, but you’ll protect your business to boot.

For more information please contact us.

Sex Discrimination and the cost of a single remark

Sex Discrimination and the cost of a single remark

The result of sex discrimination: We’ve all made comments at work we wish we could take back. But what if those remarks caused someone such distress that they had a mental breakdown? And what if the remarks were made in relation to a legally protected characteristic – gender?

You might think larger organisations would have a handle on this kind of behaviour. However, arms manufacturing giant BAE Systems were fined £360,000 for a single sexist comment. This blog outlines how this comment was really the tip of the iceberg and what you can do to avoid making the same mistakes in your business.

The Case

Marion Konczak had complained of bullying and sexual harassment, by four male colleagues to her line manager. She was moved to another role but when this didn’t work out she was asked to return to her old job working alongside the four men.

Konczak told her manager that she couldn’t do this because of the bullying and harassment history. Her manager responded with a comment about women taking things ‘more emotionally than men who tend to forget things and move on.’

Before this point Konczak had felt ‘dispirited and demoralised’ but this remark made her feel she wasn’t being taken seriously. It was the final straw that tipped her into depression and a period of sickness absence. She was dismissed in July 2007 and was unable to work for 11 years.

The Ruling

The Tribunal rejected 15 other sex discrimination complaints but found the comment by her manager constituted sex discrimination. They also found her dismissal to be unfair and an act of victimisation.

The sum awarded was so large because it took account of the preceding incidents which were deemed to have pushed Konczak to the edge making her vulnerable. The manager’s comment was the final straw.

What BAE Systems Got Wrong And How To Get It Right

Respond to Bullying and Harassment Claims

Regardless of whether the earlier behaviour Konczak experienced was illegal or not, it made her feel uncomfortable enough that BAE Systems felt bound to move her to another role. Having a bullying and harassment policy in place would have guided HR and managers through what to do and how to react. So far, so good.

Don’t Ask A Victim to Work With the Same People Again

By asking Konczak to work with people she had accused of harassment, the manager was insensitive to her concerns. In a company the size of BAE Systems, it should have been possible to find an alternative position.

In smaller businesses, moving people’s desks can be an effective way to separate warring parties. Keeping the lines of communication open will help everyone to feel heard. And ensuring all parties are clear that they must behave professionally will prevent a repeat of any upsetting comments.

Know Your People – And Act Accordingly

What’s bullying and harassment to one is a remark that can be easily brushed off to another. In this case, as well as making a sexist comment, the line manager missed the impact the situation was having on Konczak.

In summing up, the Judge said, “the basic rule is that a wrongdoer must take his victim as he finds him, eggshell personality and all.” This means line managers need to focus on two things:

  1. Whether what was said concerned:
    • a protected characteristic, like race, age or religion
    • a non-protected characteristic, like ginger hair, height or weight
  2. How the comment was received and the emotional state of the individual receiving it

Comments about protected characteristics place businesses at risk of a legal case if, as in the case of Konczak vs. BAE Systems, the appropriate steps aren’t followed. Any case where a protected trait is involved should ring alarm bells and mean you tread very carefully.

The ruling also underlines managers’ responsibility for considering and ensuring the mental health of employees. The crux of the BAE case is that the manager failed to spot the seriousness of the situation and to respond accordingly.

Changing individuals’ behaviour is not a simple fix. But you can put training and awareness programmes in place to help. Ensure your managers know how to listen, what to listen for and how to act in similar situations.

Develop a Culture of Equality And Safety For All

Allowing office banter about non-protected characteristics would make your business an unpleasant place to work for many individuals. And it would also be difficult for them to speak out if the behaviour appeared to be condoned at the top.

Go beyond the letter of the law and ensure that people feel able to speak out when any comments make them feel uncomfortable, not just those relating to protected characteristics.

Be prepared to lead from the front by challenging inappropriate behaviour publicly. This will help to create a safe place where your employees enjoy doing their best work as well as reducing risk for your business.

Bullying and harassment, sex discrimination, victimisation and mental health is a challenging combination of factors to deal with. If your business ever finds itself dealing with any one of these situations, bring in HR support sooner rather than later. It might cost you a little in time and money up front but it could save you a lot of pain, reputational damage and, potentially, £360,000.

If you need HR help for sex discrimination then please contact us.

Know your religious festivals

Know your religious festivals

While Christmas holidays often steal the limelight, accommodating other religious festivals supports employee engagement and keeps your business running smoothly. This run-down of the main religious festivals will help you plan ahead and be culturally aware at work.

Religious Rights and Religious Rites

As an employer, you’re not legally required to give workers time off for religious festivals. That said, accommodating religious requirements outside of Christmas is great for employee morale.

These rules of thumb will help you navigate what might feel like a tricky area:

❌Don’t provide additional paid leave to cover religious festivities. Use annual leave entitlement, flexi-time arrangements, one-off or discretionary flexi-time or unpaid leave to cover time off.
✔Do ask employees to advise you in good time about any requests for time off or flexible working.

❌Don’t over-provide for a particular group – how you treat those of faith should not disadvantage colleagues with different or no religious beliefs
✔Do keep the requirements of your business in mind when deciding whether to grant any special requests.

❌Don’t expect every individual to have the same needs or requirements.
✔Do understand that, as with Christmas, every individual will have their own way of celebrating.

❌Don’t make people feel singled out for their beliefs.
✔Do make colleagues aware of upcoming religious festivals so they can understand and accommodate any changes in behaviour, dress or diet.

Guru Nanak

Sikh tradition typically marks the birth of Guru Nanak, founder of the Sikh religion, in November. The date can vary and celebrations take place in advance of and following the day itself.

The Sikh holy book is read continuously from start to end two days before the celebration and ending early on the morning of the birthday. Some areas of the UK hold processions and celebrations also take place at home or the Sikh place of worship. These may start at 4am and are followed by a celebratory community meal.

Workplace Considerations

  • Longer lunch breaks may help employees attend a reading at their local place of worship.
  • A late start or early finish can help people attend some of the late night or early morning activities.

Diwali

This Hindu tradition honours Lakshmi, the goddess of Wealth. Also known as the festival of lights it celebrates the victory of good over evil, light over darkness and knowledge over ignorance. It typically takes place over five days between mid-October to mid-November.

Celebrations often involve lighting lamps, firework displays, cleaning the home, wearing new clothes, preparing festive meals and exchanging gifts.

Workplace Considerations

  • Take the opportunity to host a celebratory meal to build team relationships.
  • Support the triumph of knowledge over ignorance by communicating what Diwali is to the wider team.

Passover

One of the most widely celebrated festivals of the Jewish faith, Passover celebrates the liberation of the Jews from slavery by God. It usually takes place in March or April beginning at sunset and lasting for seven or eight days.

People celebrate in different ways: some will attend temple more regularly during this period; others may choose not to work on the first, second, seventh and eighth days of Passover; and some will follow specific dietary observances.

Workplace Considerations

  • Jewish worship starts at sunset the day before Passover so flexible working or allowing people to swap shifts close to this time will be helpful.
  • Ask your team to advise you ahead of time for any holidays, unpaid leave or flexible working requests. If holiday is to be used to cover the absence, ensure people have enough days.

Ramadan

This Islamic tradition marks the revelation of the first verses of the Koran to the Prophet Muhammad. As one of the five pillars of Islam, observing Ramadan is a cornerstone of the Islamic faith. The celebrations last for 29 to 30 days and the dates change each year.

Many Muslims will fast each day from sunrise to sunset abstaining from food, liquid and even smoking. People usually have a meal just before sunrise and one after sunset, often gathered together with family, friends and the community. Ramadan is a time for self-reflection, prayer, giving to charity and reading the Koran.

Workplace Considerations

  • Abstaining from food and drink can make some people feel irritable, tired or weak. Ask anyone who is fasting to let their manager know and possibly their colleagues so they can avoid offering food or drink.
  • In manual jobs, risk assessments should be carried out and preventative measures taken for health and safety.
    Fasting can be most felt in the afternoon – arranging more demanding tasks for the mornings may be preferred.
  • As Muslims are required to pray regularly throughout the day, it’s a good idea to ensure a meeting room is available.

Vesak

The most important tradition of the Buddhist festival, Vesak celebrates the Buddha’s birthday and for some his death and enlightenment. The data varies but is usually during April to May.

Buddhists may get together at their local temple before dawn to raise the Buddhist flag, to sing hymns and give offerings. Others meditate in private. Those Buddhists who usually eat fish or meat are particularly encouraged to eat a vegetarian diet during Vesak.

Workplace Considerations

  • Flexibility around working hours, like longer lunch breaks, can help individuals attend their temple.
  • Additional meditation or prayer can be accommodated by giving access to a prayer room; under-utilised meeting rooms often work well.

Demonstrating cultural awareness and being sensitive to the religious needs of all your employees makes good business sense. By bringing celebrations into work your people will feel valued and included. Which will secure greater loyalty and increase engagement, all without damaging the productivity of your business.

If you need help with accommodating religious festivals please get in touch.

Fit For Work? – Uncovering Sick Note Storytelling

Fit For Work? – Uncovering Sick Note Storytelling

137.3 million. That’s the number of working days UK businesses lost to sick note or injury in 2016. The government recognised the challenge that managing long term absenteeism posed to businesses. And, in 2013, they replaced sick notes with fit notes to help employers reduce sickness absence costs and minimise the disruption caused by employees being off sick unnecessarily.

However, several years on, the fit note is plagued by misconceptions. This article clears up the myths so you can make best use of the system for your business.

Myth 1 – Employees Can Get a Fit Note from Day One of Being Ill

Contrary to popular opinion, employees are not able to obtain a fit note until they have been absent from work for seven calendar days. Demonstrating they are ill or injured for this initial period should be covered by a self-certification form.

Myth 2 – Sick Note Can Carry a Cost

Fit notes are issued free of charge on the NHS by a GP.  However, if an employer requests medical evidence that an employee is unfit to work before they have been absent for seven consecutive days, this will incur a cost.  Which is where the confusion can come about.  In this case, it is up to employers to foot the bill.

Myth 3 – Employees Can Only Return to Work Once Completely Fit

In most cases, people don’t need to be completely fit to return to work. Fit notes are issued on the premise that appropriate work is usually good for people’s physical and mental well-being. Which means employers can support recovery by giving people alternative work to do.  This should be appropriate and within the limits that the individual’s health condition imposes.

Myth 4 – Fit Notes Are Specific to the Individual’s Job

Fit notes tell you whether an employee’s doctor considers them to be fit for work in general and is not in reference to the individual’s specific job. This gives you the option to discuss alternative work with your employee that could be outside their usual remit. A temporary change to duties can often support people in returning to work.

Myth 5 – Fit Notes Are Legally Enforceable

The advice contained in a fit note is for the employee and is not binding on the company. It is ultimately down to you as the employer to decide how to act on the advice, taking into account your wider legal obligations.

If the fit note contains work adjustment suggestions you are unable to implement you can explain this to your employee and behave as if the fit note had said the employee is not fit to work. Alternatively, request that your employee returns to the doctor for alternative suggestions.

Consider involving a HR consultant to navigate your legal responsibilities and bring in specialist occupational health expertise if required.

Myth 6 – Only a Fit Note Will Do

It’s up to you what form of evidence you are prepared to accept from your employees regarding their long-term sickness absence.  You can choose to accept other proof, like a hospital letter detailing in-patient dates or a letter from chiropractor, if you choose to.  Judge each piece of evidence on its own merits and, if in doubt, request the employee provides a fit note if you feel their evidence is insufficient.

Myth 7 – Employers Can Revoke Sick Pay if a Sick Note is Not Provided

This myth is half true, half false.  If an employee fails to provide a fit note you cannot withhold statutory sick pay (SSP) even if the fit note is not received on day eight of their absence.   This is because the employee may have been too ill to get to the doctor or they have been unable to secure an appointment.

However, if you offer sick pay over SSP, you are entitled to apply your own rules to this remuneration element.  You can choose to revoke payment from day eight onwards until evidence is provided and then backdate the payment or even fail to pay it at all if evidence is not provided.  Ensure your rules are applied fairly, consistently and non-discriminatorily to keep your feet legally dry.

Myth 8 – Sick Notes Can Roll on Forever

A sick note will have a specified end date.  If the employee believes they are still not well enough to return to work or full duties, they can apply to their doctor to extend the sick note.

To prevent this from continuing indefinitely, if your employee has been off work sick for four weeks, you can make a referral to the government’s Occupational Health Service.  The Fit for Work assessment provides the employee with advice on interventions and steps to help them return to work.  Subject to the employee’s consent, the Return to Work Plan will be shared with you and the employee’s GP.

If you need some pragmatic HR support to help with a sickness absence case, get in touch on 0330 555 1139 or at hello@crossehr.co.uk.

Why Your Company Needs a Whistleblowing Policy

Why Your Company Needs a Whistleblowing Policy

Whistleblowing is the term used when a worker calls attention to wrongdoing within an organisation. If a worker exposes any information or activity that is illegal, unethical or incorrect, they are a whistle-blower and should be protected by law, as stipulated in the Public Interest Disclosure Act 1998. In this article, we explain your responsibilities as an employer when it comes to whistleblowing, and why you need a comprehensive whistleblowing policy.

What is whistleblowing?

The law translates the term “whistleblowing” to “making a disclosure in the public interest.” If a worker blows the whistle on something that is in the public interest, that concerns something they believe has shown past, present or future wrongdoing, they will be protected and should not be treated unfairly by their employer. Examples of wrongdoing include:

• Criminal activity, such as fraud
• Health & Safety risks, accidents or malpractice
• Risk or damage to the environment
• Miscarriages of justice
• Your company is breaking the law
• Someone is covering up wrongdoing

How to deal with whistleblowing in your organisation

First and foremost, it is good practice to create a company culture that emboldens workers to speak up about any wrongdoing, without fearing penalisation. Workers are usually the first people to witness any wrongdoing and should, therefore, be encouraged to communicate. You should demonstrate at all levels of your organisation that disclosures are welcome and put in place robust systems to ensure workers feel comfortable and confident to do so.

It is not a legal requirement to have an official whistleblowing policy, but it is certainly best practice, as it demonstrates to workers that you are committed to openness and transparency.

A comprehensive whistleblowing policy will help you to:

• Identify wrongdoing quickly and efficiently
• Enable you to respond and investigate promptly
• Give you better control of information to help you make decisions and control risk
• Create a company culture committed to openness and transparency
• React to wrongdoing by utilising internal systems, rather than requiring a worker to go to a third party

What should your whistleblowing policy cover?

All organisations are different and as such, there is no standard whistleblowing policy you should adopt. You may have a variety of different policies for individual business units, a standalone policy, or a policy built into your code of ethics. There is often confusion as to the type of wrongdoing that should be disclosed so you should clearly outline the type of disclosures that fall under whistleblowing and direct workers to your grievance policy for any other matters. Your whistleblowing policy should also outline in detail the steps a worker should take when making a disclosure for them to remain protected by law.

There are several elements your policy should cover including, and not restricted to:

• The type of disclosures that are classed as whistleblowing
• Your procedures for handling whistleblowing
• The correct procedure a worker should adopt to blow the whistle
• Clarification that contractual ‘gagging clauses’ do not prevent whistleblowing
• The feedback a whistle-blower is likely to receive
• The time frame for dealing with disclosures
• Signposts to information or support networks to those thinking of whistleblowing, such as Acas, Trade Unions, Public Concern at Work or the Government.

The importance of communication

You should communicate your commitment to whistleblowing, and your whistleblowing policy, regularly and through a variety of means. This could be via your company intranet, company newsletter or through team meetings or 1:1s. Keeping workers regularly informed through communication and training will reinforce the importance of openness in your company culture.

If a worker has made a disclosure, you should explain your procedures to deal with it and explain how you intend to keep them informed. Many whistle-blowers will expect to be kept in the loop and your policy should outline the information you intend to share with them following their disclosure. It is best practice for organisations to provide feedback on how their disclosure has been dealt with. Lack of communication can cause resentment or frustration from the whistle-blower and could result in them looking to a third party to take the disclosure further, a scenario you would probably wish to avoid.

It’s vital to be prepared

Whistleblowing should not be a source of fear in your business. By implementing a thorough policy, and instilling a culture of transparency, you will be able to deal with issues quickly and robustly before they turn into even bigger problems. For more information on your responsibilities as an employer, this guide from the Department of Business, Innovation and Skills is particularly helpful.

For further advice on implementing a whistleblowing policy, or if you have a case of whistleblowing with which you require professional support, we’re here to help. Call us for an informal chat on 0330 555 1139 or email us at hello@crossehr.co.uk.

References

http://www.acas.org.uk/index.aspx?articleid=1919
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/415175/bis-15-200-whistleblowing-guidance-for-employers-and-code-of-practice.pdf
https://whistle.org.uk/category/articles/