03-04-2008
Boldly going where legal advisers seldom go
In the coming year the challenging economic climate will place added pressure on HR professionals. With employees winning relatively large sums of money because of “gingerism” it is little wonder that HR credibility in the boardroom is being questioned.
The rigid application of employment law, by some legal advisers, has led to an overcautious approach from many professionals. Often commentators are applying legal changes to the “nth” degree in a way that tribunals would never do. The tribunals recognise that the economy must keep turning and businesses must function commercially. In today’s climate, it is therefore crucial to start making pragmatic decisions.
Consultation regulations
This year the threshold for consulting employees will reduce to 50 staff. If ten per cent of a workforce presents a petition to an employer, the employer has certain obligations. But it seems few workforces will have the “collective consciousness” to achieve this and the best advice is for an employer to have a contingency plan and not to set up an employment forum unless they need to.
Compromise agreements
While compromise agreements are very useful tools in certain circumstances, they are often overused. For low-level employees such agreements are not always necessary. In addition to unnecessary costs, the employer is actually dragging out the argument and contributing to the fees for the employee to engage a lawyer and negotiate the amount of severance payment upwards.
Statutory dismissal procedures
Another cause for concern is the unwillingness to push the boundaries of the statutory dismissal procedures. While I would be very slow to suggest that employers act outside the law, there are some occasions where, employees prolong investigation procedures to gain another three months’ wages. If there is clear evidence that a tribunal would accept a dismissal was inevitable anyway, and that the employee’s conduct was unconscionable, then damages would be reduced to a minimum. Therefore by taking decisive action further damage to the company can be prevented.
I’m not suggesting that in every case procedure can be cast aside. Rather that much business time and money is wasted on inevitable cases when the cost benefit analysis of the situation is not done.
The real question should be whether or not the employer can prove the reason for proposing to dismiss the employee. For years, HR professionals have maintained a paper trail of the decisions that are being made. What seems to have been forgotten is why those records have been kept. One of the most compelling reasons is so robust business decisions can be taken and their legitimacy can be proved. This usually has nothing to do with someone’s race, religion, orientation or “hair colour”.
More than ever legal advisers should be giving pragmatic commercial advice to business and HR professionals, guiding them through the difficult maze of employment law.
Darren Sherborne is a Partner and Head of Employment. He can be contacted on 01242 248256 or via email darren.sherborne@bpe.co.uk
The rigid application of employment law, by some legal advisers, has led to an overcautious approach from many professionals. Often commentators are applying legal changes to the “nth” degree in a way that tribunals would never do. The tribunals recognise that the economy must keep turning and businesses must function commercially. In today’s climate, it is therefore crucial to start making pragmatic decisions.
Consultation regulations
This year the threshold for consulting employees will reduce to 50 staff. If ten per cent of a workforce presents a petition to an employer, the employer has certain obligations. But it seems few workforces will have the “collective consciousness” to achieve this and the best advice is for an employer to have a contingency plan and not to set up an employment forum unless they need to.
Compromise agreements
While compromise agreements are very useful tools in certain circumstances, they are often overused. For low-level employees such agreements are not always necessary. In addition to unnecessary costs, the employer is actually dragging out the argument and contributing to the fees for the employee to engage a lawyer and negotiate the amount of severance payment upwards.
Statutory dismissal procedures
Another cause for concern is the unwillingness to push the boundaries of the statutory dismissal procedures. While I would be very slow to suggest that employers act outside the law, there are some occasions where, employees prolong investigation procedures to gain another three months’ wages. If there is clear evidence that a tribunal would accept a dismissal was inevitable anyway, and that the employee’s conduct was unconscionable, then damages would be reduced to a minimum. Therefore by taking decisive action further damage to the company can be prevented.
I’m not suggesting that in every case procedure can be cast aside. Rather that much business time and money is wasted on inevitable cases when the cost benefit analysis of the situation is not done.
The real question should be whether or not the employer can prove the reason for proposing to dismiss the employee. For years, HR professionals have maintained a paper trail of the decisions that are being made. What seems to have been forgotten is why those records have been kept. One of the most compelling reasons is so robust business decisions can be taken and their legitimacy can be proved. This usually has nothing to do with someone’s race, religion, orientation or “hair colour”.
More than ever legal advisers should be giving pragmatic commercial advice to business and HR professionals, guiding them through the difficult maze of employment law.
Darren Sherborne is a Partner and Head of Employment. He can be contacted on 01242 248256 or via email darren.sherborne@bpe.co.uk
