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A recent query to our regular legal contributor Claudia Gerrard highlighted an area in employment law which is often misunderstood. And therefore neglected, she suggests.
About the writer: Claudia Gerrard is a Legal Consultant working for Excello Law and she specialises in law relating to the security, leasing and parking sectors. Visit www.excellolaw.co.uk.
Here’s the scenario. An employee (X) had raised a grievance about a colleague (Y). The complaint was based on alleged bullying and harassment. So far, fairly straightforward. It was essentially a matter of reviewing the facts and reaching a decision. Wasn’t it? The employer had a detailed staff handbook which had been made available to all staff. In it was a comprehensive policy on anti-harassment and bullying. The procedures for dealing with grievances were also well-documented. Accordingly, the employer investigated the matter and found in favour of employee X. The employer also decided that employee Y had behaved so badly (threats of violence at knife-point) that the offence warranted summary dismissal. Accordingly, employee Y was dismissed without pay or notice.
The staff handbook allowed employee Y a general right of appeal against the decision. So, Y had seven days within which to appeal and the employer had to respond to that appeal within seven working days of the appeal. Y brought a claim for both unfair dismissal and breach of contract because the employer didn’t respond until ten working days after the appeal was raised. This gave rise to an interesting question. The employer had followed all the procedures in the handbook except meeting the final deadline. The matter had been thoroughly investigated and recorded. How, then could this allow employee Y to raise a claim against the employer? In essence, the case highlighted the status of the staff handbook and the importance of ensuring that a handbook doesn’t form part of a contract. As we’ve seen previously, a contract imposes legal obligations and allows an innocent party to claim if there has been a breach. If a staff handbook forms part of the contract of employment, an employee can claim against the employer for the slightest wrong-doing. In our scenario, therefore, employee Y could claim that he suffered loss as a result of the employer’s delay in responding. This could have significant implications for the employer and, in some circumstances, might even help to make a dismissal ‘unfair’.
What is the purpose of a well-drafted staff handbook? First and foremost, it acts as day to day guidance on operational matters when dealing with staff. It should be used as such by managers and directors to ensure that the company operates consistently and uniformly when dealing with employee issues. Secondly, it should contain all important policies governing the employees’ work. Matters such as equal opportunities and anti-harassment and bullying should be covered to show that a company is complying with the Equal Opportunities Act 2010. Also specific policies are relevant to the security industry, such as a dress code policy health and safety. Working on the site of third party clients or having contractors on site might also require policies governing confidentiality and data protection. In our example, it was important to have a policy covering grievances and how these would be handled in a practical sense. Think about policies to cover capability, sickness and use of IT. As well, ‘family orientated’ policies should be included, acknowledging rights of maternity, adoption and parental leave. Thirdly, a staff handbook acts as evidence of the company’s ethos when dealing with employee issues. The handbook becomes vitally important in dealing with employee matters and if a claim is made against the company. An employment tribunal will refer to it if there is an employment claim and any court will review it for alleged breaches of contract.
Ultimately, therefore, the staff handbook can be a valuable tool for employers, shaping and governing day to day practices. However, as our scenario shows, it can be a double-edged sword. Make sure your handbook works with you, not against you.
Staff Handbooks: Ten Top Tips
Basic rules for staff handbooks include:
1) Ensure that the handbook is non-contractual: a statement would always be included stating that the contract of employment forms the basis of the contract. The staff handbook should be described as ‘non-contractual’ to avoid a claim being made for breach of contract.
2) Include all relevant policies: there are general policies which should always apply, such as equal opportunities. However, consideration needs to be given to industry specific matters, such as security, confidentiality and removal from site.
3) Follow ACAS guidance wherever applicable: failure to comply with ACAS can make certain actions automatically unfair. ACAS provides guidance on how to deal with mattes such as disciplinaries and grievances. These can often form the basis of your staff handbook policies.
4) Ensure that you can comply with timescales: be realistic. Don’t include shorter timescales in your handbook, if you know you can’t meet them. It is important to think about how long matters may take to resolve internally and how many people might be available to make decisions at any given time.
5) Cross refer to the handbook in the contract of employment: mention the staff handbook by stating that it is not part of the contract of employment. The two documents should not conflict but make sure you state which document will take precedence if there are any conflicts.
6) Include the handbook as part of induction for new employees: make sure that employees are aware of the key policies. Training shows the company’s ethos and the importance the company places on the staff handbook.
7) Make sure you follow the procedures carefully Apply all policies consistently: a tribunal will always look at how policies are applied, so make sure that there are no differences in the way employees are treated. Any differences might suggest breach of the Equal Opportunities Act 2010.
8) Train all staff: managers should be trained on how to best operate under the staff handbook. This also shows a company’s commitment to the staff policies and procedures. It can form valuable evidence if a claim is made against the company.
9) Review, update and monitor: review policies in the light of changes to employment law and make sure that training is carried out as necessary. Policies might quickly become out of date and it is important to remain vigilant to the impact of any changes in the law.
10) Notify employees of significant changes: make sure you tell employees if there are changes to the handbook. Keeping employees informed can encourage dialogue and make employees feel more involved in the company.