1. Have bespoke policies, contracts and handbooks
Start as you mean to go on – make sure you have the basic documents every employer should have and that these are shared with new team members as part of their induction. Don’t get them off the shelf – every business is unique, so these important documents should be bespoke and drafted by a specialist.
Having these in place sets expectations all round from the outset, so it is clear what obligations employers and employees have to each other, and what they can expect if these are not met. It also makes life far easier if you do need to challenge an employee’s standards, output or behaviour or follow a disciplinary procedure. If a contract is not in place at the outset, there can also be financial penalties if any tribunal claims are later brought.
2. Train anybody who manages people
Depending on the size of your business, you may be responsible for day-to-day management of your people by yourself, or you may have a layer of senior management underneath you. As your business grows, you will certainly need people who act as a conduit between you and your teams and help your business deliver your vision and objectives.
Managing people is hard – and someone who is good at the day job won’t necessarily make the best manager without some guidance. There are numerous potential pitfalls, and to minimise falling into them, make sure you and anyone who leads teams has appropriate training – better to invest in training in advance than spend on costly errors later on. Managers need the skill set to drive engagement, get the best performance out of their team and be prepared to have that ‘difficult conversation’ when needed.
Ensure managers understand and implement your employment contracts, policies and procedures and, importantly, that these are communicated to employees. These should cover topics such as harassment and equal opportunities.
Managers should also be aware that, although generally unfair dismissal cases can only be brought after two years of employment, employees (and interviewees) can still bring other claims, such as discrimination. They should therefore make sure no one is discriminated against by colleagues or treated less favourably because of their age, race, gender or gender reassignment, sexuality, disability, pregnancy or religion or beliefs.
3. Know the rules on flexible working
Flexible working can be a broad concept and may include changes to working hours such as a change from full to part time or compressed hours or to the place of work, such as working from home or hybrid working. All employees with at least 26 weeks of service have the right to request flexible working, but this doesn’t guarantee them the right to receive it. Companies can refuse these requests on one of eight business grounds, such as the detrimental impact on the business’s ability to meet demand, or an inability to reallocate work between remaining employees.
Employers should be aware that employees may make a flexible working request to deal with childcare arrangements or carer responsibilities, and so may be protected under the Equality Act. If in doubt, seek legal guidance on how to respond to a flexible working request.
The Employee Relations (Flexible Working) Act 2023 has now achieved Royal Assent and the law is expected to come into effect some time in 2024. This makes a number of changes to how flexible working requests can be made, including that employees must be consulted with by their employer before any request is rejected, with an outcome to their request given within two months (rather than three). Employees will also be able to make two requests per year, an increase from the current limit of just one.
There is also secondary legislation around a day one right to flexible working, meaning employees will no longer have to wait 26 weeks to put in a flexible working request. Although we don’t yet know when this will come into force, the suggestion is that this will be introduced at the same time, which will give employers up to a year to prepare.
4. Know how best to downsize if you need to
No business wants to downsize, but when times are tough, and if all other options have been explored, then there may be no other option.
Where this is the case, make sure you handle it correctly – as with disciplinaries and dismissals, getting it wrong can be a costly mistake if it goes to tribunal.
Firstly, you’ll need to provide a good business rationale for downsizing, and you’ll have to communicate it to affected employees. You’ll also need to demonstrate fair selection criteria for those being made redundant and follow a reasonable process to consult with at-risk employees to reduce the impact of redundancies. This includes considering and offering any suitable alternative roles.
If employees have been with your business for more than two years, they have a right to a redundancy payment, and could raise a case for unfair dismissal if a fair reason for dismissal is not established or a fair process is not followed. When downsizing, it can be useful to seek legal advice as this is a relatively complex process, especially if making more than 20 people redundant at one time.
5. Know how to follow a grievance or disciplinary process
Things can go wrong despite your best intentions – including, but not limited to, the examples outlined. If they do, disciplinary and grievance investigations should be conducted in line with your company’s procedures and with the Advisory, Conciliation and Arbitration Service’s (Acas) Code of Practice.
It’s important to take advice before you begin a disciplinary or grievance process. This ensures you receive guidance on how to proceed, rather than how to extricate yourself from difficulty.
You must ensure matters are investigated thoroughly, and that employees have sufficient notice of upcoming disciplinary or grievance meetings with advance access to any evidence being used. Employees have a legal right to bring a companion to these meetings, and they also have the right to appeal the outcome.
If an employee or ex-employee wants to bring a claim against an employer, they must get in touch with Acas before issuing proceedings. An Acas representative will then contact the employer to discuss the matter and investigate whether they would like to settle.
If you can’t settle the problem through early conciliation, the employee may issue proceedings through an Employment Tribunal Claim Form (ET1). You must then file a defence within 28 days, which the tribunal will follow up with a case management order of directions or case management hearing.
There may also be a preliminary hearing if any specific issues need to be addressed and, if not, a final hearing will be listed. If a judgment is issued, it will be final unless there are grounds to appeal to the Employment Appeals Tribunal.
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