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A strong HR function needs to be supported by legally compliant and clearly written employment documentation.
Improve productivity
A failure to regularly take stock and ensure that these documents are fit for purpose can undermine the strategic aims of your HR team and managers. Out of date documentation will impact on operational efficiency, limit managers’ ability to manage and increase the likelihood of legal claims and financial penalties.
Minimise risk
Disputes can be minimised if up-to-date contracts, policies and procedures are in place and are effectively communicated to the workforce. Employers who want more certainty should ensure their risk management programme includes an annual audit of employment practices and documentation.
The annual audit
A successful audit will identify whether the documents comply with current legislation and reflect current working practices.
Common problems
FG Solicitors’ specialist independent audit continues to highlight the following problem areas which are often overlooked:
Legislative changes have not been addressed
Developments in legislation and regulatory requirements can bring about additional obligations which need to be managed:
Even now employment documents do not reflect current rights and obligations under the revised data protection laws (and GDPR). Employees who manage data need to know what is required of them to minimise the risk of a data breach or in the event there is a breach, they need to know what to do. The maximum penalty for a breach is the higher of 20 million Euros (or equivalent in sterling) or 4% of the total annual worldwide turnover.
Modern slavery and human trafficking legislation is also often overlooked. Many organisation will not be required to publish the mandatory modern slavery and human trafficking statement, as the £36m turnover threshold is not triggered. It is however essential that steps are taken to tackle slavery and human trafficking within any business and in its supply chain. Many customers now only want to do business with suppliers who can demonstrate that they are safeguarding against modern slavery. Given the broader commercial considerations, a good starting point is a policy in an employee handbook supported by a statement demonstrating the measures that have been taken.
Managers are still unsure about family friendly rights. In the absence of clear policy guidance mistakes are frequently made in relation to dependent care leave rights and flexible working applications. The highly publicised and complex shared parental leave regime, which gives employees who are parents a new, more flexible way to take leave in the first year after the birth or the adoption placement of a child are often overlooked in employee handbooks. A misunderstanding about rights and obligations can lead to costly disputes.
Poorly drafted post-termination restrictions
It is only when a valuable client is lost, an entire team follows their former manager or confidential information is misappropriated, that an employer reaches for the employment contract in search of much needed protection. The discovery is usually that there is little or inadequate protection for the business. An investment in carefully drafted post-termination restrictions and confidentiality provisions that are likely to withstand judicial scrutiny are a powerful weapon when the business is under attack from an ex-employee’s competitive activities. Clauses that deal with garden leave, payments in lieu, the use of social media and intellectual property are also an effective means of protecting the business and should be incorporated in the employment contract.
A lack of contractual flexibility
A common mistake it to make the employee handbook contractual so that it forms part of the employees’ terms and conditions. This is not a wise decision as there will be a legal obligation to follow rules and procedures, which may not always be convenient. It may also be difficult to make changes in response to business change without employee consultation.
While employee engagement about changes to contractual terms is always preferable due to the legal risks associated with varying contracts unilaterally, an express provision setting out the circumstances where changes may be made will always put the business ahead.
A lack of flexibility in the documentation can make it harder to respond to unexpected events or specific HR and employment issues.
Employers who want to be confident that they are complying with their legal obligations should ensure that their employment documentation is both legally compliant and business relevant.
If you want to know more about our HR and employment law document audit and have more certainty when managing your business, please contact a member of the team at FG solicitors by sending an email to info@fgsolicitors.com or by calling 01604 871143.