The modern workplace has evolved greatly over the past 20 years. No longer are workplaces restricting themselves to do business between 9am and 5.30pm because it’s the ‘done thing’ and co-working spaces are on the rise.
There has also been a generational shift in the workplace. Millennials are set to make up 75 per cent of the global workforce by 2025, and their views and work ethics have changed the way in which businesses operate in terms of work and culture. Millennials are less interested in being motivated by the ‘job for life’ mentality of the previous generation, and instead put their work-life balance first. Providing another challenge for businesses to contend with.
Yet as the workplace has changed so has the role of the HR department. Gone are the days of HR departments being seen as an outdated business entity. The modern HR is combining traditional HR functions such as recruitment, development and retention with ensuring business culture is maintained and the businesses ‘employment’ image is being upheld across every aspect of the business.
However, this has provided a challenge for HR professionals who need to manage the HR functions of old and new, while maintaining their legal obligations.
HR is the backbone of every business. However, for start-ups and SME’s this practice often doesn’t take a priority, and can leave those organisations vulnerable to discrepancies which could easily have been avoided if the correct policies, procedures and practices had been in place.
The period up to March 2016 saw tribunal applications reach over 83,000 and with the average cost to an SME estimated at £20,000 – avoiding a costly and damaging tribunal is something many businesses are keen to avoid. Taking a hit both financially and to your brand image is something many businesses struggle to survive, especially so when they are just starting out.
To ensure that your business is on the right side of the law, we have listed some of the ways your business may be acting illegally.
Discriminating based on a candidate’s social media
While you are legally able to check a potentials employee’s social media profile before you interview or hire them to gain a better understanding of them, it can lead to discrimination claims. This is because you have accessed their ‘protected characteristics’ such as age, religion, ethnicity, political views, sexual orientation and disability – characteristics would have either been difficult to determine prior to – or after – interview.
Keep it legal by making decisions based on the knowledge that you should legally have access too, and take care to not expand your interview questions to include details which you have viewed on social media.
Asking candidates different questions
While every candidate is different and so are their responses, the questions that you ask should remain the same where possible. For example, if you are examining competencies in a candidate then the same question should be asked to those who are interviewing for the position.
Where you want to pick out individual details on a CV, you are able to reference these with individual-specific questions.
Not honouring verbal contracts
Employment contracts do not need to be in writing to be legally valid, as verbal contract agreements are also legally binding. However, they are often hard to prove in court, so it’s advisable to ensure you receive a retuned written contract as soon as possible to avoid any disputes arising.
Under legal obligations, as an employer you are required to provide a written statement of the terms and conditions of employment within two months of an employee starting their position.
The document should contain details such as pay, holiday and working hours. Alongside, these obvious details, contracts are also made up of obligations which have not been spelt out. Things which may be too obvious to mention – for example, if you are employed as a driver, it’s assumed that you hold a valid driving license. Putting everything in writing can help to avoid misunderstandings, even if it does seem obvious.
Storing employee data incorrectly
Any data you hold on employees should be securely stored and only accessible to authorised business personnel. Digital records should be password protected, and paper documentation should be in a locked cabinet.
Data that you hold on employees should only be stored for as long as your business has a need for it. For example, if an employee leaves the business then that information should be disposed of securely.
Employees are able to request a copy of the information you hold on them, and requests should be responded to within 40 days.
Not having a disciplinary or grievance process
Failing to have a disciplinary or grievance process in place at an organisation can leave a business vulnerable to unfair dismissal claims, if the issue is not handled correctly.
Your policy should be fair and transparent and be set in writing. Employees should be aware of the procedure, where it can be found and how it can be used. If formal action is needed then an employment tribunal will determine based on the size and resources of the organisation what steps need to be taken.
A disciplinary procedure should take into account the following steps:
- Establish facts for the case
- Inform employee of the issue
- Hold a meeting to discuss the issue (with accompanying employee if appropriate)
- Decide on action to be taken
- Allow the chance for an employee to appeal.
A grievance procedure should be raised in the following manner:
- Employer notified of nature of the issue
- Meeting held to discuss the issue (with accompanying employee if appropriate)
- Decide on action to be taken
- Allow employees to take the grievance further if it remains unresolved.
If a grievance and disciplinary overlaps (for example, a grievance is raised during disciplinary process), then it may be suspended until either the grievance has been resolved. If they overlap, then both issues may be dealt with at the same time.
Failing to check right to work visas
While many businesses are aware that they need to check an employee’s right to work documentation before they begin employment at that organisation, they often forget to check documentation. This could lead to a costly £20,000 civil penalty fine for employing illegal workers. Employers are under legal duty to prevent illegal working in the UK and avoid unlawful discrimination.
Original documents should be checked and in the presence of the applicant. Documents should be genuine, not have expired, contain consistent photos across documents, have the same date of birth on documents and be permitted to conduct the work that you are offering.
Checking personal devices
In 2016 the European Court of Human Rights ruled that employers could monitor messages sent on an employee’s personal Facebook, WhatsApp, webchat applications and email during working hours on a work device, following a hearing which brought the matter into the spotlight.
Factors relating to this case included that the employer has an established policy which allowed for accounts to be checked and made clear that devices and internet should not be used for personal reasons during working hours. These factors effectively enabled the ECHR to rule in the employer’s favour.
However, you should still exercise caution when checking employees personal accounts and only do so on work devices. As an employer, you are not permitted to check a personal device.
While many businesses may not be aware that their actions are leading them astray, ensuring your business is up to date on the latest HR policies and legal obligations should be a priority, or you could risk being taken to a costly and brand destroying tribunal.
Caroline Griffiths is managing director at Bradfield HR.
Further reading on legal issues
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