Your Top 5 HR Questions - October

1. Should an employer deal with an employee's poor performance through its disciplinary or capability procedure?

Whether an employer should deal with an employee's poor performance through its disciplinary or capability procedure will depend on the nature of the poor performance.

First off, you need to carry out an investigation, which will include meeting with the employee concerned to establish whether the employee's poor performance is conduct or capability related.

Conduct related means that the employee has some control over their actions, and that they may be “willfully” not performing to the required standards. If it is conduct related, then it’s is appropriate to follow your company Disciplinary Procedure.

Capability related means they do not have control over their poor performance and its likely to need intervention such as more training or shadowing someone else performing well in their role. However, if the employee's poor performance is capability related, then you should follow your company Capability Procedure for performance improvement.

It is not always obvious whether an employee's poor performance is due to capability or conduct, and this is why the investigation stage of the process is really important. Its about trying to get to the root cause of why the poor performance is happening and this takes great listening and questioning skills.

In some cases, it will be a combination of the two, and you may therefore need to adopt the procedure and change course if the evidence that emerges suggests that this is necessary. Irrespective of which procedure you follow, you should make sure that your Disciplinary and Capability Procedures follow the Acas Code of Practice.

How can we help?

If you need a Disciplinary or Capability Procedure, then please get in touch and we’d be happy to provide you with either of these policies that meets the Acas Code of Practice for just ￡50 each.

If you’ve got a performance issue that you need help with, then please book a meeting with us and we’d be happy to help. You can book a meeting here.

2. Can an employer ask a prospective employee to fill in a medical questionnaire?

Yes, you can ask a prospective employee to complete a medical questionnaire, but only after it has made them a job offer and only if it complies with UK GDPR. (General Data Protection Regulations).

Section 60(1) of the Equality Act 2010, also prohibits employers from asking job applicants questions about their health before offering them employment (with some exceptions).

If you intend to ask prospective employees to complete a medical questionnaire after making them an offer of employment, you must ensure that you have a legal basis to do so under the UK GDPR, as this will amount to processing their personal data. For example, you would have a legal basis to do so, if you need to establish an employee's fitness to do the work you are employing them to do, for example, to comply with health and safety obligations or risk assessments you may have in place.

Information about an individual's health falls into the special categories of personal data under the UK GDPR. An employer can process special category data where this is necessary for the purposes of performing or exercising employment law obligations or rights, such as in relation to health and safety as noted above.

However, you must have a thorough GDPR Policy in place that explains how you will comply with the principles of the UK GDPR in relation to the special category of personal medical data, how you will store this data, how long you will retain it for and when you will delete it.

We would advise our clients that if you have a need to obtain medical data, then you should engage with an Occupational Health Practitioner. If you receive any medical information back form an employee, you aren’t a medical expert, so you need to think about what you do with that information! If a condition is mentioned, I wouldn’t know whether this was OK or not, based on a Job Description or a risk assessment, but an Occupational health Practitioner will. They will be able to advise you on the information you receive from your new employee, and make a medical decision for you as to whether this person is fit to do your role or not.

How can we help?

Need us to recommend a good Occupational Health Practitioner, then get in touch and we’d be happy to suggest a few for you to contact. [email protected]

If you need help with a sickness absence or health issue, then lets have a chat about it. You can book a meeting with us here.

3. How long must an employer consult with employees for when seeking agreement to change their contracts?

You should always consult individually with employees with a view to obtaining agreement to changes to their contract, before these changes are made, and you may also have an obligation to consult collectively with your employees.

Generally speaking, you only need to consult collectively with your employees if the changes impact;

1.????? More than 20 employees over a 90 day period

2.????? Or there is a recognised Trade Union within your business

The length of the individual consultation period will depend on several factors, including the number of employees involved, the nature of the proposed change and the employees' responses.

There is no minimum time frame for individual consultation, but best practice would suggest a minimum of two meetings, and if the employees agree to the proposed changes, the consultation period may be relatively short.

Another thing you need to consider when proposing changes to employee’s contract of employment is what you will do if they don’t accept the changes. You could;

1.????? Dismiss them and then re-engaging them on the new terms. This is not an approach we would advise, and is fraught with issues, plus this is also likely to be banned in the near future as part of the Labour Manifesto “Plan to make make work pay”

2.????? Allow them to resign as you believe the changes to their terms are reasonable. Here you run the risk of an unfair dismissal or constructive dismissal

3.????? Offer them something, known as “legal consideration” for them to accept the changes you are proposing. This could be for example an increase in their annual holiday, or an increase in salary or pension contributions, or a one off payment.

?

How can we help?

This is a complicated area and it’s really important to seek HR advice and input before you make any changes to your employee’s Terms and Conditions of Employment, to ensure you are following the legal requirements around consultation, and that you have considered which of the three options you will take if they refuse to accept the changes. If you are thinking about doing this, then please book a meeting with us to make sure we help you do this the right way!

?

4. If a third party harasses an employee, will the employer be liable for the third party's actions under the Equality Act 2010?

An employer will not currently be liable under the Equality Act 2010 for harassment of its employees by a third party (for example, a client or supplier).

If an employer fails to take action in response to complaints about a third party, the employer itself could be found to have harassed the employee if the failure to act was because of a protected characteristic. For example, trivialising a female employee's complaints about third-party sexual harassment and taking no action to prevent it, could in itself amount to harassment. This is known as “vicarious liability”

Employees who have been subjected to harassment by a third party may be able to bring a constructive dismissal claim against their employer, if they resign and claim that the employer's failure to protect them amounts to a breach of contract. An employer could also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced the amount of harassment/mental or physical damage.

A new positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment comes into force from 27th October 2024, and its arguable that this includes prevention of harassment by third parties. The Equality and Human Rights Commission will be able to take enforcement action against an employer in relation to the new duty.?

Employers should ensure that they continue to take all reasonably practicable steps to prevent any harassment of employees, and this would include conducting a risk assessment and regular training for employees, and in particular your managers, to prevent sexual harassment.

How can we help?

We can conduct an audit to identify the risks of Sexual Harassment in your business, and provide you with recommendations to reduce or eliminate those risks, helping you to implement our recommendations if required. Get in touch with us for further information via [email protected]

You can book your managers onto one of our Training sessions on How to prevent Sexual Harassment in the Workplace which run on the 17th October or the 29th November here; https://www.merakihr.com/workshops/

5. If an employee is on sickness absence during a bank holiday, are they entitled to be paid or to receive time off in lieu?

The employee's entitlement will depend on whether the bank holiday forms part of their statutory holiday entitlement under the Working Time Regulations 1998 (SI 1998/1833). This will be the case where the employer grants employees the minimum 5.6 weeks' holiday entitlement and this includes bank and public holidays, and would be stated in their contract of employment.

In?Pereda v Madrid Movilidad SA [2009] IRLR 959 ECJ, the European Court of Justice held that a worker who is on sick leave during a period of scheduled annual leave must be allowed to take the annual leave at a later time. This means that where an employee is on approved sickness absence during a bank holiday that forms part of their minimum holiday entitlement, the employer should allow them to take a day off in lieu. Payment in lieu of the statutory holiday entitlement is permitted only on the termination of employment.

However, if the employer grants paid time off on bank holidays in addition to the statutory minimum, the employee's potential right to a compensatory day off or pay in lieu in respect of a bank holiday will depend on the terms of the contract of employment or any policy on the matter that forms part of the contract. It may also be that a right to time off or pay in lieu of bank holidays only exists as a result of “custom and practice”, ?even if it is not written down in any company documentation.

How can we help?

Confused about holiday or bank holiday calculations, pay or sickness absence during holidays? Then get in touch and we will help you to navigate this tricky area. [email protected]