Leaders and employees often ask, “What are the most contentious areas in employment law?” It’s a good question because, as prepared as we are to fight our client’s corner every time, we’d far prefer them to avoid disputes where possible. Here are five strategic approaches towards HR procedures, that can help you avoid costly employment law issues further down the line advised by Bellevue Law founder Florence Brocklesby.
Unfortunately, redundancy is likely to be a common theme for many employers over the coming months. One immediate point to note is that making redundancies takes time and must follow a fair process.
Breaching the redundancy rules will, in our experience, almost always result in higher costs further down the line. So, please – if you are an employer or an employee who thinks you may be affected – take the time this week to get to know your rights and obligations in this area.
This is one of the most likely scenarios to lead to a contentious exit.
We all know that it’s essential to address and document performance issues as they happen. Bottling up issues until annual performance reviews – or not conducting appraisals at all – is a common mistake as employees don’t have the information they need to change their behaviour. It’s much better to communicate expectations as you go.
First, use the probation period to consider whether a new employee is right for the role. Second, give feedback and address issues in real-time – the vast majority of individuals want to do a good job. Finally, if things are not working out, in many cases you will need to put in place a formal performance management process to support the employee to improve or be able to dismiss them fairly if they don’t.
Where there is a mismatch between expectations and performance at a senior level, or where co-founders no longer share the same vision for the business, something has to give. Rather than risking a costly and painful dispute, it may be appropriate to have a “protected conversation” with a view to agreeing terms for an exit. These will often cover the individual’s departure as an employee, director and shareholder, and it is important to take advice on areas of legal risk and market practice before proceeding
Terms and conditions: pay rise, bonus, changing roles as the business grows
Please document any changes as your business grows. Many of the matters that employment lawyers are called in to resolve – especially in fast-growth businesses which are changing at pace – centre on misunderstandings overpay, bonus and remit. In some cases, the cost and disruption of not having good documentation in place may be significant, especially for early hires where equity is part of the mix and disputes can arise about what was originally agreed.
There are some challenges ahead for employers when it comes to flexible working. How can you insist, say, on an individual being present in the office when they have spent the past several months remote working? On the flip side, it’s going to be hard to insist on employees working from home if they originally joined to work in an office.
Consider that we’ve all – to a great extent – made remote office working the norm over recent months. As schools return, employers will see the benefits of actual remote and agile working. Keep the dialogue open and document your decisions – but check that they are applied fairly and consistently across your workforce.