Bacon rolls and informative polls at our latest employment update!

Posted on: November 29th, 2017

On 22 November the employment team was delighted to host an employment breakfast seminar at the Ageas Bowl in Southampton. The main topic was how to use ‘protected conversations’ effectively and this proved to be popular, as evidenced by a high turnout of delegates. Perhaps the removal of Tribunal fees back in July had something to do with this!

We also looked at some recent case law and what is coming on the horizon in the world of HR. Naturally this included Brexit, the gig economy and employment status, as well as GDPR.

If you missed the seminar but are interested in any of the topics, please contact us for the slides. Or feel free to get in touch with any of the speakers if you have a burning question.

During the seminar the attendees were also able to participate by using the audience interactive software tool Sli.do. This is something we have used in our own business to great effect and were keen to trial here.

As part of this the audience voted on 5 polls and the results of these, along with some commentary from us, is below. The audience were also able to pose questions and we have chosen the 2 most popular (as voted by the attendees) below to answer. We hope you find the results as interesting as we did!

  1. 25% have experienced an increase in the volume of Tribunal Claims or early conciliation via ACAS since the removal of Employment Tribunal fees. However, 58% have seen no change.
    This result was probably not surprising and fairly closely mirrors what we are seeing at the moment in the market place. Certainly ACAS and the Employment Tribunal have reported claims are up and we have definitely seen more coming across our desk. Whilst the largest percentage may have seen no change, this should also be expected: it has only been 4 months since the change and ACAS will continue to filter out a number of disputes. However, as word continues to spread it seems increasingly certain the number of claims will continue to grow. Perhaps not to the level prior to the introduction of fees but the days of bullish employer behaviour may be over. As such, prudent employers will factor this into their settlement negotiations. 
  2. 38% had never been involved in holding a protected conversation and only 16% had done so often. 
    We were slightly surprised to see such a low number having used protected conversations on a fairly frequent basis. Of course, there could be many different reasons for this, including that there simply is no need as staff engagement and performance is good. However, we also suspect there remains a degree of hesitancy in using protective conversations pro-actively. Possibly arising from knowing how best to position it and what is the right time. Indeed, from the conversations we had on the day there can often be some confusion around the differences in protected conversations and the ‘without prejudice’ rules. If this applies to you and your business do read our slides and seek specific guidance (used properly, protected conversations can be a powerful tool and much more cost effective in the long run).
  3. 42% thought the introduction of grand parental leave was a good idea but that the take up would be low with 22% already offering time off and 25% believing it was not needed.
    The audience scepticism as to the anticipated level of take up definitely reflects our own. Whilst there may be some interest, and introducing such a scheme certainly creates good headlines, we are not sure the real ‘demand’ is there to prioritise this over other changes to the law (say in relation to employment status). Whilst it is a noble aim in principle to better share caring responsibilities, the key driver often remains whether it is financially viable or not.
  4. 11% monitor their staffs’ emails and believe it is a crucial tool for their business. 16% do but are unsure what happens with the information but 57% either decided not to or have not thought about it.
    Being a cynical employment lawyer who is heavily involved in the technology sector I was actually quite surprised to see that the level of email monitoring was so low. However, unless it appears there is a business crucial reason to do so, many do not see the need or simply have not thought about it (which may amount to the same thing!). In light of recent case law, if an employer is going to do this then they need to tread carefully so it is not something that should be undertaken lightly or without seeking advice.
  5. 27% had not taken any steps to prepare for GDPR, with 57% making some change. 16% believed they were compliant. Whilst it is reassuring to hear that over two thirds of our audience have been pro-active in preparing for GDPR, a significant number of those polled had not yet taken any steps towards compliance.
    As we are nearing the end of the year (and will soon be in the final 6 month countdown), it is important that GDPR becomes an area of focus. Of course, of those 57% making changes, we suspect they may still have several actions to tick off the list before 25th May 2018. In our experience, once you start looking into what you need to do, the list can become extensive and that’s when the difficult questions pop up. There is a vast amount of information available on the GDPR in the public domain but if employers are struggling to know where to start, our free guide to GDPR and compliance questionnaire may be able to assist. Employers should seek advice on how to tackle those tricky questions. Remember the personal data you hold will extend beyond your employees, to customers, suppliers and prospects. 

Click here to find out more about our guide to GDPR

Can employers really refuse to give a reference? Does that include factual details of employment dates etc. without comment on performance?

There is no legal obligation on an employer to provide a reference for an employee or ex-employee, either normally or in a settlement agreement. However, care must be taken to ensure that the refusal to provide a reference is not discriminatory (for example, refusing to provide a reference for someone as they have been on disability related absence). 

If a reference is provided, there is no specific content that the reference must include and so an employer can simply just state dates or job title, with no comment on performance. However, where a reference is provided, employers must ensure that the information it contains is true, accurate and fair, and does not give a misleading impression.

Don’t forget, where you do provide an agreed reference as part of a settlement agreement, withholding the reference or changing its content may lead to a breach of contract claim.

Do most companies expect their employee to continue working between the Protected Conversation and the decision, or offer some sort of ‘garden leave’?

Unfortunately, there is no hard and fast rule here. It will ultimately depend upon the employee concerned and the hostility of the matter. 

If the situation between the parties is not too acrimonious and trust and confidence has not broken down (for example, in redundancy), it may be suitable for the individual to continue their active duties. However, where the circumstances are more hostile or confidentiality is paramount (for example, in the financial services industry), it is advisable to send the employee home on paid leave whilst they consider the offer put forward. If you do wish for the employee to stay at home though, we recommend that you take some legal advice to minimise the risks so far as possible.  

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