George Green LLP have compiled a list of employment law “must dos” for SMEs. If SMEs act on these points they will be well placed to deal with any challenges to their HR practices.  

1. Beware the recruitment process

• Be aware that the provisions of employment law relating to discrimination apply to all potential employees including interview candidates and those rejected at the initial application sifting stages.
• This means that you should ensure that the whole of the recruitment process from placing an advertisement through to final interviews and selection is free from potential discrimination.
• As a minimum, you should draw up essential requirements/job specifications and take full notes of interviews and in particular the reasons for rejection which should be retained for at least 12 months.

2. Issue contracts of employment

• This is a legal obligation which has been in force now since 1963.
• A failure to provide a contract within 2 months after the beginning of the employment can by itself lead to a separate award in the Employment Tribunal.
• The contract will also enable the employer to include further matters which can of course be negotiated by agreement with the employee.
• In practice, an Employment Tribunal would always frown upon the employer who turns up at trial with no evidence to show that this basic fundamental requirement has been complied with.

3. Stop your former employees from poaching your business/clients

• This can only be done by the insertion and inclusion into the contract of specifically and carefully drafted restrictive or post termination covenants.
• These can prevent competition following termination and can also prevent former employees soliciting or poaching clients and former colleagues.
• Without these specific provisions, an employer’s options and remedies in response to the employee who poaches work and business are very limited.

4. Proactively deal with sickness absence

• Ensure you have a sickness policy in place.
• Implement return interviews for employees who have been off sick.
• Consider whether the employee may be disabled.
• Remember your obligations under the Equality Act 2010.
• Ensure you have all the facts before considering dismissal and take legal advice if you are not sure.

5. Capability – you can just dismiss them can’t you?

• Give employees an opportunity to improve if there are capability issues.
• Clearly communicate your expectations and provide clear objectives.
• Confirm objectives in writing.
• Have regular appraisals.
• Remember that misconduct is a separate ground for dismissal – ‘can’t do/won’t do’.
• Managers should not be afraid to manage underperformance firmly and consistently.

6. Changing terms and conditions

• Employers should be aware that they cannot unilaterally impose changes in terms and conditions of employment without consent of the employee or adopting a full consultation process.
• Even then, if the employee does not consent, it may be necessary to serve notice to terminate the contract and offer to re-engage on the new terms but this can still count as a dismissal.
• Therefore, changes in fundamental terms and conditions should be negotiated extremely carefully and advice obtained at an early stage in order to avoid the legal pitfalls.

7. But he has only been here a week / month?

• What it is generally the case that employees cannot claim unfair dismissal unless they have worked for 2 years or more, there are a number of categories of claims which do not require such qualifying service.
• The main categories relate to discrimination but it is common for employees dismissed with less than the normal required qualifying service to argue that the reason for dismissal was one of the automatically unfair reasons.
• These include health and safety, whistleblowing, working time, trade union duties etc.

8. In a potential redundancy situation remember:

• A genuine redundancy is when an employer no longer requires a role/roles to be carried out, where there is a reduction in the number of people required to fill a role/roles or when a business is closing.
• Redundancy is not about the performance of an individual or any other failings of that individual (although this may feature in selection criteria).
• TUPE is not redundancy.  Where you are outsourcing, insourcing or there is a change in a provider of a service, the employees are likely to transfer under TUPE and are not necessarily redundant.
• Plan thoroughly and timetable what actions you need to take.
• Remember collective consultation (if applicable) and individual consultation.
• Ensure the pool of employees and the selection criteria is reasonable.
• Criteria relating to attendance should discount any absences caused by disability or pregnancy.
• Vacancies which can be filled by those at risk of redundancy should be offered.
• Communicate with the employees who are staying

9. Good communication is essential

• For example, in relation to disciplinary action or grievance outcomes, communicate decisions effectively and promptly, setting out reasons.
• Keep written records, including minutes of meetings – you may need to rely on it in Tribunal in a subsequent claim 

 10. Follow your procedures

• This may sound obvious, but any failure to follow the correct procedure may cause issues in a subsequent Tribunal claim.
• Follow the Acas Code of Practice on Disciplinary and Grievance Procedures (where applicable) to avoid compensation uplifts of up to 25%.
• Ensure that your own Company policies and procedures comply with the Acas Code.