explanatory notes and key facts

EXPLANATORY NOTES
Any business that has been involved with an Employment Tribunal or any other litigation will know how costly, time consuming and inconvenient it can be.  The cost of employment disputes is measured not only in terms of legal fees but also management time and low staff morale.  

Our view is very much that prevention is better than cure.  We have created a two stage process that will help ensure that “best practice” is followed, and that Tribunal claims and employment disputes are avoided if at all possible.

EMPLOYLAW AUDIT
In our view, the first stage is to ensure that you, as an employer, are fully up to date with all your employment law policies, procedures and documentation.  Such documentation falls into three areas - contracts of employment, company handbook and company forms.

Contracts of Employment
Contracts apply from the most junior part-time employee to the most senior Director.  Downs are able to tailor contracts for all levels of staff in your business whether home workers, full time, part time, hourly paid, casual etc.  In the Menu, we have broken the contracts down into three categories.  We will work with you to identify the various levels of employees within your business and will then tailor contracts to ensure the appropriate terms are included.  

Special attention is needed for service agreements and contracts for “high risk staff”, which we see as key sales or management individuals who could harm your business should they leave your employment.  Our aim is to try and protect your business with suitable restrictive covenants.  The overriding objective is to afford you as much protection as possible in the event of the employment terminating and/or a dispute arising.

Company Handbook
The company handbook will be broken down so as to expand and support the terms and conditions of employment which will be detailed in the contract(s) of employment (as above).  The handbook will provide greater and wider information on the processes employees can and should adopt.  

The aim is to ensure that there is a user friendly handbook that is easy for your employees to use and find the appropriate sections should they have any queries on what they should be doing.

The main purpose of the handbook is, however, to set out all your non-contractual policies and procedures.  In our view, it is critical to have appropriate documentation, especially for dealing with such items as grievance and disciplinary procedures.  There is also the additional benefit of having these on a non-contractual basis as it means that you will be able to change and update them as employment law evolves without having to obtain your employee’s consent.

A classic example in relation to the handbook is a potential claim for discrimination.  The burden of proof is on you to show there is no discrimination.  That now means that if an employee can set out that he/she has a prima facie claim for discrimination, the onus then shifts to you, as the employer, to demonstrate that you have not discriminated.  The most effective way to start your defence is to produce your equal opportunities policy and harassment policy.  The next stage is then to show that you have implemented and communicated that policy to all your staff/managers, usually through consultation and training (see below).  This is the start of defending a claim for discrimination, showing that you do not discriminate because you have the policies which have been implemented (and evidenced by training records).  Obviously, the intricate facts of each case will depend on what has happened, but having the policies is, in our view, the best and only starting point.

We will also assist you (through EmployLaw Assistance) to update your policies as and when rules and regulations change.  

Company Forms
These are perhaps not as critical as the policies but are nonetheless still important for keeping and retaining records.  The most important form will be the Working Time Regulations opt-out form which allows employees to work more than 48 hours, on average, per week.  The additional benefit of having such a form means that the requirement for you to keep records of the hours an employee works is negated.  Without the form you will be required to keep records to be able to demonstrate the hours which employees work.  

EMPLOYLAW ASSISTANCE
As indicated above, with the example of the claim for discrimination, the first stage is having the documentation, the second stage is then ensuring that the policies are effectively communicated and enforced.  

There are various ways in which Downs can assist you in doing this.

Legal Advice
We provide a legal advice retainer service.  This allows the managers/senior staff to have backup from a specialist employment solicitor in writing or on the telephone (9am - 5pm weekdays), should any issues arise that they feel unable to deal with.  We can also provide out of hours assistance, subject to prior agreement.  

The solicitor advising will be dedicated to your business and most likely to have undertaken the EmployLaw Audit.

We have excluded advice on the Information and Consultation Regulations as this is a major project, which not all businesses will want.  However, we are willing to advise on this area at a further fixed cost.

Updates
By newsletters and free breakfast briefings we aim to keep you abreast of changes in employment law and to assist you in updating  your contracts and handbooks.  The updates and briefing notes can be circulated by e-mail to you, should you prefer.

Not only will you have access to an employment law specialist but you will also be invited to join our Training and Development partners, Positive Perspective TDX Group programme of seminars and workshops, which they run each quarter with an employment lawyer from Downs.  For further information, their website address is www.positiveperspective.co.uk.

EMPLOYLAW TRAINING
If you undertake an effective training program, highlighting to your managers/senior staff, or even the whole workforce, points to recognise and steps to take in certain circumstances, then this will have two effects.  

Firstly, it will assist with any Employment Tribunal claim, as you can demonstrate that you have effectively trained and  communicated  your  policies to your staff.  Secondly, it will carry through the ethos that “prevention is better than cure” because your senior staff/managers will more likely recognise a situation that could lead to an Employment Tribunal claim.

Downs typically trains its commercial clients in relation to disciplinary/grievance procedures.  We explain the steps that managers need to ensure are taken so that a full and proper investigation is undertaken, that the procedures comply with the levels expected by Tribunals, and that a decision to dismiss or refute a grievance is only given once all the procedures have been complied with.

The other main area for training relates to discrimination/harassment.  This can typically tie-in with grievance issues but has wider implications because compensation for discrimination is potentially unlimited.  Therefore, it is key that when issues arise, or when a manager sees an issue that could give rise to a claim, he/she knows what to do in that situation.  Discrimination can be based on a person’s sex, race, religion, disability, religious belief, sexual orientation and age.  We will be able to assist with training on these areas to ensure that your managers are fully armed with the appropriate knowledge, so that the chances of being taken to a Tribunal are significantly reduced.

There are many other areas where training could be provided e.g. the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”).  This applies on the transfer of a business, a division or even upon outsourcing.  We can give training on the appropriate consultation and highlight the issues to those managers that may be involved with dealing with such scenarios.  

Essentially, we tailor the training sessions to tackle any issues that you may want covered.  The above describes some of the main areas where training is needed.  Anne Martin who usually undertakes the training has considerable experience in devising, writing and presenting training courses for the Chartered Institute of Professional Development, and many well known national and international organisations.    

EMPLOYLAW REPRESENTATION
In the event of a Tribunal claim being made against you, the employment law team at Downs has extensive experience to guide and assist you.  Our aim it to give a friendly, professional service to a high standard, to achieve the best possible result, both with regard to cost and your overall employee strategy.

If you subscribe to EmployLaw Representation, the legal fees and any award (subject to the insurer’s limitations) will be covered.  This means that the cost (which can be considerable) will be paid by the insurers, as will any award of compensation.  Rather than being passed to a firm of panel solicitors, Downs will represent you.

As we have knowledge of your business and the circumstances giving rise to the claim (through EmployLaw Assistance) we will be best placed to see the matter through for you.  Our aim will be to avoid a claim, but if this is not possible, and should matters go to Tribunal, as we have worked with you under EmployLaw Audit and Assistance, we will stand by you. 

On notification of a Tribunal application received by you, we will:

• Complete the IT3;
• Settle disclosure of appropriate documents;
• Handle all negotiations via ACAS or direct with the Claimant;
• Collate and inspect documents;
• Take full instructions and statements;
• Represent you at the Hearing.

Set out below is the Insurer’s “ Key Facts”.

• Claims or circumstances that have already commenced or circumstances of which you are aware prior to the commencement of the policy.
• Any claims in respect of redundancy payments or monies judged to be due under any contract of employment including monies due by reason of bonus, holidays, Wages Acts, Equal Pay Acts. 
• Any claim arising from a failure to provide written reasons for dismissal.
• Any claim in respect of monies due under any pension scheme or pension arrangement.
• Any claim, legal proceedings or disputes arising out of deliberate, conscious, intentional or careless disregard of the need to take all reasonable steps to avoid, prevent or limit any claim or legal proceedings.
• Any claim or legal proceedings made, brought or commenced outside the United Kingdom.
• Any claim, legal proceeding or dispute where you failed to consult and follow the solicitors advice and this results in the opinion of the solicitor that there is no reasonable prospect of success or chance of achieving a satisfactory outcome.
• Fines or other penalties imposed by a Court or Tribunal.
• Any claim, legal proceedings or dispute arising from or relating to a Shareholders Agreement or a Partnership Agreement or a Trust.
• Any claim, legal proceedings or dispute arising as a result of an allegation of libel or slander.
• Any claim, legal proceedings or dispute relating to intellectual property, breach of confidentiality or a passing-off action.
• Any claim, legal proceedings or dispute arising from or relating to an application for judicial review.
• Any claim, legal proceedings or dispute relating to a contract deemed to be illegal. 
• Protective awards payable under Section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992.
• Any award made under in respect of the Transfer of Undertakings Regulations unless otherwise stipulated in your cover note.
• Interim relief as defined in Section 132 of the Employment Rights Act 1996.
• Punitive awards including but not limited to any additional award made under Section 117 of the Employment Rights Act 1996.