Member Article

The ever-changing goalposts of employment law

It’s HR focus week on Bdaily. Here, Leigh Stott, director of HR at Hunter Adams, provides insight into employment law.

In HR, the goal posts are forever changing. The landscape of the profession has revamped, reinvented and rebooted itself over the last 50 years.

The latest change to emerge relates to employment law.

The conduct of employment disputes has undergone one of the biggest overhauls since the inauguration of the Employment Tribunal system. The most intriguing modification to emerge from the changes is the ‘off the record’ discussion employers can have with their employees.

But employers beware. You should proceed with extreme caution before deciding to participate in one of the uninhibited chats. When it comes to employment law it’s best to operate in black and white. Clear, distinct boundaries protect all parties involved.

Unfortunately, these new changes come with a lot of grey areas.

At first glance, this change in protocol could be welcomed with open arms by managers looking to cut through the red tape and have open and honest discussions with their workforce. Employers can become frustrated by continually tip-toeing around employees, who routinely underperform.

But unfortunately these confidential severance discussions leave too much open to interpretation and do too little to protect either the employer or employee.

The protected conversation can be discredited if deemed to be ‘improper’. This is one of the major pitfalls of the changes. Helpfully, the ACAS Code of Practice on Settlement Agreements lists some examples of improper behaviour. This list includes all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour.

However, the list is not exhaustive and the term ‘improper’ is still very much open to interpretation. Depending on the individual’s sensitivity towards what’s improper an employer could quickly find themselves falling foul of the law. It will take a few cases of managers getting it wrong to begin to understand what actually constitutes ‘improper’ as the case law interpreting the legislations starts to emerge.

Until what ‘improper’ constitutes as is clearly communicated, managers need to avoid knee-jerk reactions.

As it stands managers can see ‘off the record’ conversations as a way to side step what can be seen as the standard lengthy and detailed dismissal process. But they’re detailed for a reason. They provide safety nets for all the parties involved and ensure all available avenues have been explored and the various possible outcomes considered.

For instance, what if, on the spur of moment, a manager pulls in an employee to have a confidential discussion? This employee has constantly underperformed, has been afforded extra learning and support and still routinely missed targets. But what if this employee happens to be the only woman in the company?

Discrimination litigation could soon follow suit but at present only unfair dismissal claims are potentially covered by protected conversation legislation. One snap judgement could result in an employment tribunal and costly times for an organisation.

For the changes in employment law to be an effective tool managers can confidently use, more has to be done in terms of establishing the boundaries of ‘improper’ and eliminating the grey area.

This was posted in Bdaily's Members' News section by Hunter Adams .