13 January 2022

New year and a fresh start for employers

By Anissa Hallworth, Director, Hayes + Storr.

Many businesses are now at the stage where they have planned their longer-term working arrangements for staff who may be office-based, remote working, or a hybrid arrangement.

Some of the changes to working practices which were introduced ‘on the hoof’ as businesses adapted to the pandemic may have become permanent, and many lessons have been learned about new ways of achieving the same business objectives.

Alongside Covid, we have also seen a huge shift in the awareness of diversity and inclusion and, after so much change, now is a good time to check your policies are relevant for your company in the future.

It is also timely to look at wider issues relating to policies, such as best practice around introducing and changing policies, tips on how to get the best out of HR policies, and pitfalls which include looking at a case involving equalities policies.

The benefits of employment policies

As a minimum, all employers are required to follow the Acas Code of Practice on discipline and grievance procedures or risk a tribunal increasing damages by up to 25 per cent and increase the risk that your actions will be found to be unfair.

Some organisations like to have a full suite of detailed policies, while other businesses see policies as unnecessary red tape, but there are many good reasons to have policies and procedures:

• employees know what their employers expect of them, the potential consequences of not meeting those expectations, and how to enforce their workplace rights;
• procedures give managers clear steps to follow and guidance on important decisions to help them stay on the right side of the law;
• policies encourage consistent treatment of staff, which can be crucial to ensuring fairness and avoiding discrimination;
• businesses may need to have specific policies in place when tendering for work, for example when bidding for public sector work or using dangerous equipment; and
• policies can help employers defend themselves against certain employment claims.
  Making sure policies are not contractually binding

A well-written policy or procedure avoids being too prescriptive, inflexible or setting unrealistic timescales. The policy needs to be fit for purpose for the needs of your business.

It is advisable to make sure policies are not contractually binding, otherwise this could create contractual rights and obligations as well as make it more difficult to change policies.

You are required by law to refer to disciplinary and grievance policies in employees’ contracts of employment. We can help you use the right wording in policies and contracts to prevent policies becoming contractual.

Introducing and updating policies

Human resource and employment policies can become out of date due to changes in the law or changes in ways of working, so schedule regular checks to ensure that they remain fit for purpose. We can review and update your policies.

It is good practice to train managers on new and updated policies to ensure that they know they exist, understand the contents and any changes, and know how and when to apply them.

Employees should be made aware of new policies, which should be readily accessible such as on the intranet. It is a good idea to ask staff to acknowledge receiving and reading any new policies. Nowadays, you could also organise a video call to discuss and provide an opportunity for questions.

Provided that the policy is not contractually binding, you should be able to change the policy as and when required. Significant changes should be highlighted to managers and staff.

A policy alone is not enough to defend a claim

While policies can help employers defend themselves against certain claims, a policy alone is unlikely to be enough and employers need to be able to show that the policy is fully implemented.

Usually employers are liable for their employees’ acts of discrimination, such as the racial harassment of a colleague. If an employer can show that they took all reasonable steps to prevent the discrimination, they may be able to defend the claim against the business. Having an equalities and anti-harassment policy would be essential to establishing this defence.

However, employers need to ensure that employees and managers are also given relevant and regular training. The Employment Appeal Tribunal found in Allay (UK) Ltd v Gehlen [2020], that training needs to be updated and regularly carried out or it can go ‘stale’ and the defence will not be available.

For example, taking proactive steps to remind employees of the policy and the organisation’s zero tolerance approach to harassment before the Christmas party or other off-site events might be helpful.

How we can help

Having appropriate and up-to-date policies in place that were developed for your business, can save a lot of trouble down the line. We can help your business avoid the expense and stress of tribunal claims by preparing policies for you or reviewing and updating your existing policies.

Please contact Anissa Hallworth in the employment team on 01263 825959 or email anissa.hallworth@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.