If you are lucky enough to work for an employer which still throws a Christmas party (it’s been reported this year that many are cancelling the annual shindig and making a donation to charity instead), then there are various legal issues which might arise. We have put to together a list of things your employer should be thinking about to make sure it’s all alright on the night! 1. Given the increasing potential for your employer to incur legal liability for things that happen at staff socials, it will probably want to make sure staff are informed about the “ground rules” for celebrations. No one wants to be “bah humbug” but, it is vital that everyone understands what is acceptable. The consequences of any unacceptable behaviour should be made clear. Remember that relevant workplace policies such as the harassment policy continue to apply and that the employer will be able to take action under its disciplinary policy if necessary. 2. An employer should consider the needs of all staff when planning the party. For example, will the timing and location of the party allow for those who need to arrange childcare to take part? Will disabled staff need assistance to get to or, access the party venue? Will the food provided meet all employees’ religious and cultural requirements? 3. An employer should consider ‘elf and safety! Steps should be taken to protect employees during and after the event for example, putting in place arrangements for transport home at the end of the night. If the employer is not providing its own transport it could arrange licensed cabs for staff to ensure they do not take undue risks. Alternatively, the party should be finished in time for people to use public transport. 5. Non-alcoholic drinks should be made available and, if there’s a free bar, it’s likely that some restrictions will be put in place to prevent excessive alcohol intake – like not providing hard spirits or limiting how many drinks one person can order. 6. Remember, not everyone celebrates Christmas. Staff of different faiths or for whom Christmas is not a significant festival shouldn’t be made to feel excluded. 7. Social media postings by staff are a minefield. Keep your social media under control (if you are going to post at all) Don’t risk your own or your employer’s reputation with photographs of staff in party mode, looking worse for wear or, the embarrassment of inappropriate messages. Your employer’s social media policy or rules will apply so remind yourself what these say beforehand if you need to.  8. Employers should have a consistent policy regarding post-party absenteeism. Managers should all be “singing from the same hymn sheet” the morning after the party (if this is a work day, although ideally it won’t be); the employer should decide beforehand how lenient or not it is going to be regarding lateness or absenteeism. Again, this should be communicated to staff so they are fully aware of the consequences of failing to attend work.

Here are the basics of this interesting area of law, plus recent proposals for change. Some employees are banned from striking altogether. Armed service personnel, police and prison officers cannot go out on strike, but other public service workers can. There are proposals for the ban to be extended to key transport services, and for all public services to be subject to a minimum service guarantee, as in France. These are currently only proposals, however. Protection for employees. Wages will not usually be payable to striking employees. However, they have the right not to be dismissed because they are on strike, provided this has lasted less than 12 weeks, their union has authorised the action (making it official) and it has jumped through the hoops set out below. Protection for trade unions. Trade unions authorising a strike will have immunity from legal liabilities such as conspiracy, intimidation, and interference with trade, but they first need to comply with a number of detailed rules. There must be a trade dispute, as defined. For there to be union immunity, there must first be an actual or potential trade dispute. This must relate to certain work matters, such as benefits and physical working conditions. A dispute about anything an employee is told to do will also amount to a trade dispute. There must also be a proper ballot. It is very easy for a union to get this wrong, as there are a large number of detailed rules covering every stage of the process. All those who are reasonably likely to go on strike must be balloted, and no one else. Only a majority of those who actually voted needs to be achieved for the ballot to be successful. However, there are new rules that apply to important public services. Picketing and sympathy strikes. Unions will have no immunity at all for sympathy or secondary action, and pickets are only allowed at the relevant place of work, with a moderate number of picketers, and where there has been no intimidation. If you would like to talk to one of our experienced solicitors about any of these issues, please give us a call; we would be delighted to help.

Following on from our article: the solicitor’s hourly rate explained we have put together a few hints and tips for keeping your legal bill as reasonable as possible and getting the best value from your solicitor. Hourly rates Charging according to the time spent on your matter using the hourly rate method is still the most common way that law firms charge for their services. This means, to put it bluntly, time is money. The more hours that your solicitor spends on your case, the more you will be charged. A solicitor will charge you for everything they do which is related to your case. This will include: speaking to you on the phone reading and responding to your emails reading documentation which you have provided researching legal issues drafting letters/emails on your behalf speaking to your employer and/or their lawyers instructing a barrister on your behalf Choosing a firm It may be appealing to go to a firm who can offer you a very low hourly rate. Generally this will be because a junior member of the team (who will have the lowest hourly rate) will work on your case. This can be a false economy however as you will have to factor in the additional time it will take them to do things, the additional research they will need to do, and the fact that they will need to be supervised by someone more senior. A more experienced solicitor (with a higher hourly rate) will instinctively be able to advise you, having seen similar cases in the past, and could ultimately end up providing you with better value because they can get the result you want more quickly. Before you choose your law firm, we would recommend asking some searching questions, such as: Is the person dealing with my case the most appropriate level of experience? Will my lawyer need supervision and how will this be paid for? How do you record time? Do you start the clock again for different activities, or do you keep it running during all your activities for me? Can you assure me that my lawyer will work on my matter without interruption or distraction? What policies do you have in place to ensure this happens. Exactly what does your estimate include and what is not included? Are there any caveats? Get an estimate Always ask your solicitor for an estimate of how long they think a particular piece of work will take. It may not be possible for them to predict a long way in advance (as they won’t know exactly how the matter will progress) but they should be able to break down individual bits of work such as drafting a document and give you an expected price for this. An estimate is a best guess, it is not the same thing as a fixed quote. Matters can always take an unexpected turn which means they take longer and cost more. However, if the estimate looks like being significantly wrong then your solicitor should inform you of this as soon as they can. Fixed/capped fee In some cases, or for some pieces of work, your solicitor may be able to offer you a fixed fee (you know in advance what it will cost and this will not change) or, a capped fee (where you will not pay more than a given maximum price but may pay less if the work takes less time). It may not always be possible to predict the amount of time that will be spent on your matter, or any particular stage of it, so such arrangements may not always be agreed. However, it is always worth asking if a fixed fee arrangement is available. What the client can do to help The more efficiently your solicitor uses their time, the less time they spend on your matter, the less you will be charged. Note that we have to review all correspondence and documentation which we receive from you. Before we can give you meaningful advice we will need to understand all the facts of your case. It can take a considerable amount of time to “read-in” to complex matters where there is extensive documentation. Clients are sometimes surprised that they need to pay for this preparatory work but, this is vital to being able to provide quality assistance to clients and will be chargeable. While no solicitor will want to “cut corners”, there are things you can do to cut down on charges for unnecessary time. For example: avoid making excessive telephone calls or emails to your solicitor try and stick to the point and be as succinct as possible on the phone and in your correspondence. For example, make a list of things you want to cover before you call and put everything relevant down in one email rather than sending several different emails if you have documentation which your solicitor is going to need to review, make sure this is clearly labelled and in chronological order before you give it to them come prepared and with any relevant documentation when you attend meetings relevant documents which your solicitor is likely to need to review will include: your employment contract and any documents referred to in it, relevant staff policies, your most recent pay slip, your draft settlement agreement (if you have been given one), copies of any relevant emails ideally, send through any questions you want answered at your meeting, in advance it can be really helpful to put together a time line of events, a list of relevant people involved and/or summary of the matter to date where there are lots of facts that your solicitor will need to get to grips with if your solicitor is helping you to negotiate it can be helpful to give your solicitor a first draft of correspondence which they can check and amend where necessary, rather than asking them to draft it for you from scratch don’t be afraid to ask if there are other things you can do yourself to keep charges down

In all but the most extreme cases of misconduct – termed gross misconduct – an employee is unlikely to be subject to dismissal for a first offence at work. Instead, they will be entitled to receive one or more warnings prior to termination of employment. Exactly how many warnings an employee is entitled to receive before dismissal will depend upon a number of factors, including the nature of the issue and individual employer’s guidelines. What is the correct dismissal process? A disciplinary situation in the workplace can arise in various ways and may be dealt with by the employer under separate policies (usually found in the staff handbook or on a company intranet). For example, where an employee is accused of some sort of misconduct they will be dealt with under the disciplinary process; or where an employee not performing satisfactorily, they may be dealt with under a capability process. In addition, employers can deal with poor attendance under a separate absence management process. Where absence is caused by genuine illness or disability, attendance issues should not be regarded as a disciplinary matter. Not all employers will have different processes for different types of disciplinary issue – there may just be one overarching disciplinary policy, but it is important that individuals are clear about which process applies to them in their situation and that the employer follows the applicable process correctly. Appropriate action following a disciplinary hearing Where allegations of misconduct have been made, an employer will first investigate, and then hold a meeting with the employee. During this meeting, the employee will be able to voice their side of the situation. Following this, the employer will have to decide whether or not further disciplinary action is justified. If the misconduct is confirmed, it is usual for a written warning to be issued to said employee. This will remain “live” for a certain period (which should be specified in the employer’s disciplinary policy or rules) e.g. three or six months. Generally, any further act of misconduct within that time would then result in a final written warning. Once a first written warning has lapsed then it will not generally affect any future misconduct, which should be considered for disciplinary purposes in isolation from the original act of misconduct. This means an employer cannot “tot up” warnings against the employee after they have lapsed. However, in some limited situations it could be legitimate for an employer to take into account an employee’s previous behaviour. Please bear in mind that this is a complex situation – get in touch with us for further guidance. Skipping to a final written warning If a first act of misconduct is very serious but there is some mitigation making immediate dismissal inappropriate, then an employer can potentially decide to skip the first written warning and go straight to issuing a final written warning. Where the employer has a well drafted disciplinary policy, it should be made clear that the employer has the discretion to skip to a final warning in appropriate circumstances. What should a written warning look like? A first or final warning will ideally set out: the nature of the misconduct (or poor performance) the change or improvement required, within what timescale how long the warning will remain current in the case of a final warning, the possible consequences of further misconduct or failure to improve (such as dismissal, loss of seniority or change of role). Gross misconduct Where the act of misconduct is so serious in itself or has such serious consequences that it amounts to gross misconduct, an employer is entitled to dismiss without giving a warning at all and without notice (or payment in lieu of notice). This is termed “summary dismissal”. However, a reasonable employer will always follow a fair disciplinary process – including an appropriate investigation – before dismissal for gross misconduct. In addition, staff rules should give examples of acts which the employer may regard as gross misconduct. These are subject to variance depending upon the nature of the employer’s business, but examples include theft, fraud, violence serious insubordination or gross negligence. Dismissal procedure is subject to individual employer The best practice guidance laid down in the ACAS Code of Practice on disciplinary and grievance procedures recommends the structure of first and final warnings as detailed above. Employers are therefore well advised to follow this, and any less lenient procedure is likely to be frowned upon by an employment tribunal, potentially leading to a finding of unfair dismissal. However, the actual process which an employer follows may vary if, for example, they have a longer, more complicated procedure which allows for a greater number of warnings before dismissal. It is therefore important to read your employer’s disciplinary/performance management policy to understand the exact process they are required to follow.  Also note that some employers may have contractual disciplinary policies which actually form a term of employee’s contracts of employment. If this is the case, the employer has much less freedom to deviate from the procedure as it is laid down in the contract. Any failure by the employer to go through the steps of the procedure properly would also amount to a breach of contract.

A new law came into force in the UK in May 2018, which outlines that employees can face prosecution for data protection breaches. As with previous legislation, the new law (the Data Protection Act 2018) contains provisions making certain disclosure of personal data a criminal offence. The Information Commissioner’s Office has prosecuted several individuals in the last couple of years for misusing personal information obtained from their workplaces. The old Data Protection Act 1998 The previous data protection act (the “DPA 1998”) criminalised knowingly or recklessly obtaining, disclosing or procuring personal data without the consent of the data controller, and the sale or offering for sale of that data (section 55). Section 55 was most often used to prosecute those who had accessed healthcare and financial records without a legitimate reason. Examples of employees being prosecuted for data protection breach In recent years there have been several cases of employees being prosecuted for breaching data protection regulations. Example one: A former GP practice manager was fined for sending personal data to her own email account without authorisation. Shamim Sadiq worked at Hollybrook Medical Centre in Littleover, Derby, but was suspended on 3 November 2017 for unrelated matters and dismissed later that month. Sadiq, of Carlton Road, Derby, admitted unlawfully accessing personal data and received a £120 fine, plus £364 prosecution costs and a victim surcharge of £30. Example two: A recruitment consultant emailed the personal data of approximately 100 clients and potential clients to her personal email address, before leaving the organisation. She then used this information to contact those individuals in her new job. When her ex-employer discovered this, it informed the Information Commissioner’s Office which brought a case against Ms Gray under section 55. Having pleaded guilty to the offence, she received a £200 fine and ordered to pay £214 prosecution costs plus a £30 victim surcharge. The case, R v Rebecca Gray shows how the legislation can be used by employers faced with a data breach by an employee or ex-employee. Example three: An employee of Heart of England NHS Foundation Trust (HEFT) unlawfully accessed the personal records of 14 individuals between February 2017 and August 2017, and received a fine accordingly. An internal investigation found that the employee had viewed personal data of seven family members and seven children known to her. Although she was authorised to access records on HEFT’s systems, there was no business need for her to do so on these occasions and therefore she broke data protection law. The employee pleaded guilty to breaching section 55 and section 60 of the Data Protection Act 1998 when she appeared at Birmingham Magistrates’ Court on 15 March 2019. She was ordered to pay a £1,000 fine with a £50 victim surcharge and was ordered to pay £590 towards prosecution costs. The General Data Protection Regulation and the Data Protection Act 2018 The General Data Protection Regulation (GDPR) is an EU regulation dealing with data protection and privacy, as well as the transfer of personal data outside the EU, which applies to all EU citizens. It replaced the former European data protection directive which had been in place since 1995. The GDPR came into force automatically in the UK on the 25 May 2018. The requirements of the GDPR were enacted into UK law by the Data Protection Act 2018, which came into force on the same day. Because GDPR has been enacted into domestic legislation by Parliament, its provisions will continue to apply after Brexit, unless the Data Protection Act 2018 is amended. GDPR and the Data Protection Act 2018 repeat and build upon section 55 of the 1998 Data Protection Act by adding the offence of knowingly or recklessly retaining personal data (which may have been lawfully obtained) without the consent of the data controller (usually the employer). Although prosecutions by the Information Commissioner’s Office (ICO) are still relatively rare, it seems likely that it will continue to pursue individuals through the Courts, particularly where a complaint has been made. The ICO will decide whether or not to bring a GDPR related prosecution in the Courts; it will usually notify the individual concerned in writing of its intention to do so. This would usually be followed by a formal summons to Court for trial. Employment law issues surrounding data protection breaches Data controllers are subject to increasingly stringent requirements and, potentially far harsher penalties by the Information Commissioner. For example, they must notify, the Information Commissioner within 72 hours of any data breach concerning personal data held by them. Consequently, employers are likely to regard a workplace data protection breach more seriously themselves. With litigation and reputational risks increasing, employers may be tempted to discipline their workers more harshly for a breach, and treat them as gross misconduct. This would allow the employer to dismiss without notice or pay in lieu of notice where such a breach is proven. Preventing an employee data breach Ideally, employers will now be focusing on prevention rather than cure when it comes to employee data handling. This can be achieved by ensuring regular and adequate training for relevant staff about legislation such as GDPR, and putting in place clear and properly communicated policies. Employees need to be very clear about their obligations and if in doubt should ask for clarification from managers as to the extent of their responsibilities and for further training, if it is felt this is needed.  Where an employee has particular concerns about the security of their employer’s personal data, they should raise these immediately. An employee should never send personal data obtained at work to their own or any other third party, other than as expressly authorised by their employer. If you have any further questions regarding employees being prosecuted for data protection breaches or how the new data protection laws, including GDPR, will impact your organisation, please do not hesitate to get in touch with our team of employment law specialists.

An employee who is consistently underperforming can have a detrimental effect on an employer’s business. Not only will poor performance affect an individual’s productivity, it can undermine team morale and the productivity of the organisation, as well as sucking up management time and resources. Unfortunately, in many circumstances, an employer is left with no choice but to dismiss an employee for poor performance. Often, performance issues are allowed to run on for far too long because managers are not confident about dealing with such issues, so they delay having a difficult conversation. However, this dread is perhaps misplaced. Depending on how long your employee has been employed for, if you follow the correct procedures, dealing with poor performance at work shouldn’t be too difficult. The key is to give yourself enough time to carry out the process properly. An employer will be well protected against a possible legal claim from the employee if they follow the correct procedure. This means understanding the steps which must be gone through, and carrying them out appropriately without rushing. Work on improvement rather than dismissal A successful performance management process would see the employee improve and become a useful member of the team. It is crucial to give the individual enough time and support to allow this to happen. In reality however, the outcome is often a failure to improve, leaving the employer with no option but to dismiss. How long has your employee been employed? If your employee has been employed for two years or more, they will be protected against unfair dismissal and will be able to bring a claim in the employment tribunal if that right is breached. A dismissal will be unfair if the employer fails to follow the correct procedure in carrying it out. Employees with less than two years’ employment cannot generally bring a claim for unfair dismissal, so the procedure is slightly different. Employees with less than two years employment Even if you are dismissing an employee for poor performance within the first two years of their employment, it is still good practice to follow a reasonable procedure before dismissal. Remedying poor performance There are a number of basic elements to any fair process when it comes to performance management, which all employees must strive to adhere to. In order to prevent employee poor performance, it’s sensible to enforce a probation period in order to assess new employees. A probationary period of between three and six months provides a good opportunity to review performance and take any appropriate action if necessary. The employee must understand what is expected of them, and the standards they are expected to meet must be clearly spelled out. If an employee is given targets, these should be realistic and based on their skills and experience. Also, employees should be given a realistic time-frame to achieve any targets and should understand any deadlines the employer is putting in place. It is the employer’s responsibility to ensure that all employees are given adequate support to achieve their targets and/or the standards expected of them and this will encompass proper training. A comprehensive induction processes for new employees can save a multitude of problems at a later stage. If performance is felt to be lacking, then an employer needs to explain what needs to change in order to meet the required standard of performance – for example, some individuals may need extra training or support. Underlying reasons for poor performance Employers should take note of the fact that there may be an underlying reason for poor performance. An employee may not even be aware themselves that they have additional needs if, for example, they are an undiagnosed dyslexic. If an employee is disabled within the meaning of the law, an employer has an enforceable duty to make reasonable adjustments for them to enable them to do their job. Once any additional support or training is put in place then an individual must be given enough time to prove themselves. Performance reviews should be arranged regularly, and these agreed dates stuck to. It is important to give feedback so that the employee knows whether or not they are improving as required. If dismissal is a potential outcome, then the employee should be warned that this is a possible consequence of a failure to improve. How to proceed if employee’s performance remains poor If, despite best efforts, it seems likely that the employee’s performance is not going to improve, then whether or not to dismiss them will have to be discussed. Firstly, you must check the relevant contract of employment. Is there a term in the contract that sets out the dismissal procedure to be followed and, if so, have you complied with it? If there isn’t, then you have more flexibility. While you don’t strictly need to give any prior warnings of dismissal or a right to appeal (unless it’s provided for in the contract of employment) for employees with less than two years service, it is considered good practice. Make it clear in the termination letter why you have dismissed them and give either appropriate notice or payment in lieu of notice. Employees with 2 years employment or more Employees with at least two years’ service are protected against unfair dismissal. Therefore, in order to dismiss fairly, an employer must: have a fair reason for the dismissal act reasonably in treating that as a reason for dismissal in each case follow a fair (formal) procedure in carrying out that dismissal Reason for dismissal Capability (or more accurately, lack of it) is a potentially fair reason for dismissal, so make it clear that this is the basis upon which you are dismissing in any termination meeting and letter. Gathering evidence Make sure you have evidence of consistent underperformance and all the measures that have been put in place to assist the employee in trying to improve. For example, what training and mentoring did they receive? Did the employee’s manager have an informal meeting with them to try and encourage the employee to improve their performance? Ensure you have documents on file to show that adequate warnings were given to the individual. Notes of any meetings held under the formal procedure must be kept on file. Fair procedure – the formal process The ACAS Code of Practice on disciplinary and grievance procedures will apply, so make sure you follow its recommendations for a fair procedure. Let the employee know that you are commencing the formal disciplinary process (or capability process if you have a separate process) and give them a copy of it for reference. It is vitally important that the employee is informed of their rights and is allowed to bring a work colleague or trade union representative to all meetings held under the formal procedure. At each stage of the procedure, you should write to the employee and explain that their performance is considered to be below the required standard and why. Make it clear that this letter is part of the formal disciplinary procedure (and which stage it is at) and invite the employee to attend a meeting to discuss it. The employer must also explain what the potential consequences are i.e. a formal warning or dismissal. At any formal meeting, give the employee an opportunity to respond to the issues. You can also collaboratively explore ways to help the employee improve their performance and try to agree some targets and time scales. Keep a written record of the meeting and give a copy of this to the employee. If, following the meeting, a formal warning is given, remember to include the fact that your employee has a right to appeal against the decision. Unfortunately, there will be situations where the employee fails to improve their performance either enough or at all. If, at this stage, you consider the only option is dismissal, you need to invite the employee to a meeting to discuss their dismissal. Explain in writing in advance the purpose of the meeting and the possible outcome, reiterate the performance issues and remind your employee that they have a right to bring someone to the meeting with them. Ideally, the decision to dismiss an employee will be given face to face with reasons identified and explained. Following this, the employee should be given a copy of the decision and reasons for it in writing, along with notifying the employee of their right of appeal. Don’t forget to state whether the employee is being dismissed on notice or with payment in lieu of notice.  If you would like more advice on your legal rights as an employer, or how to properly dismiss an employee for poor performance, please get in touch with one of our employment law specialists who will be happy to guide you further.

Most employers dread the hassle and cost of recruitment. But being taken to the employment tribunal by a disgruntled worker who you’ve dismissed can be equally damaging and costly.

Recruiting the right new employee can be a costly and protracted process. So, what do you do when it becomes apparent that, for whatever reason, you will have to dismiss an employee during their probation period?

What amounts to a workplace disciplinary issue? It’s not always easy to define: workplace disciplinary issues will normally concern the conduct, absence or work of you or your colleagues.