References - should we agree to requests for information

Writing a reference
Writing a reference for an employee seems a perfectly reasonable thing to do. After all, the new potential employer will need to know if the employee turned up late every Monday morning or had a bad attitude to female colleagues. On the other hand, the new employer may want confirmation that their new employee is a star in the making and that you are very sad to be potentially losing him.

What are the potential problems
It is important that any reference is true and accurate. It may be that the employee was late every Monday morning. However, the author of the reference may not have known that the employee's supervisor had allowed this and a shortened lunch break so that the employee could drop off his or her son at school.

In writing a reference there is both a duty to the new employer and the previous employee. If you make a false statement you could be sued for damages by the employee if he or she is not successful in obtaining their desired new role.

Again, the same is true if an employee is described in glowing terms by his previous employer as they are glad to see the back of him. However, the truth is that he is lazy and has a bad attitude. Further, he is a disruptive influence and has been disciplined a countless occasions. In this case the new employer may seek to sue the old employer for damages based upon the fact that they have taken on a new employee who they would never had employed had they known all of the facts of his previous employment.

Requests for a reference
Most employers deal with requests in one of three ways. The first way is to refuse to give any type of reference. This is not particularly helpful to anyone. Further, most employers seek information by way of references and therefore they should feel able to meet any requests in a positive way.

The second way of dealing with references is to send a standard reference giving such details as job title, dates of employment, salary and sickness record. Again, this is of limited assistance to the new employer and may not help the employee in his search for new employment.

The third and final way of dealing with requests is to give a full reference and provide all information requested. It is important that the reference is prepared by a person with authority to write the reference on behalf of the company and even more importantly is aware of the employee and has the knowledge required of the employee to write the reference. If the employee was dismissed then this should be stated and the reasoning behind the dismissal should be explained. If the person left by way of a settlement agreement then this should be so stated.

What steps do we need to take as an employer

• Have a policy on references and stick to it. Make staff aware of this policy.
• Make someone in the Company responsible for writing references and ensure that others know that they have no authority to reply to requests on behalf of the Company.
• If an individual is asked to write a reference then they should do so as an individual and not as a representative of the Company. They should make this clear in the reference that the views expressed are those of the individual and not necessarily the Company.
• Include a disclaimer with all references excluding any liability for any inaccuracies. However, this will only be over very limited effect.
• If you wish to adopt a policy of no references or limited references then make it clear that this is your policy for all employees.
• Be reasonable and be truthful. If you are both then there is little risk in providing references.
• If you are at all concerned by a request then seek legal advice.     

The above blog represent the views of the author and is not meant to be relied upon as specific legal advice on any particular set of facts. If in doubt always seek legal advice.

At Chiltern Solicitors, we have a HR system to take care of all of your staffing needs. If you have ever struggled to get some quick advice on an employment issue or have failed to find previous notes on a staffing issue then the system is for you. Ever business employing staff will benefit from having advice readily accessible, staff documents kept securely and in order and a telephone helpline. For more information watch the video on our website at www.chilternsolicitors.co.uk or call us on 01582 439795 for a free demonstration and to discuss how the system can be set up to help you.  

At Chiltern Solicitors we are experts in employment and staffing issues. For regular updates on employment law issues sign up on our website. www.chilternsolicitors.co.uk or email us at info@chilternsolicitors.co.uk 

What is the difference between misconduct and gross misconduct

Many employers struggle to understand the difference between misconduct and gross misconduct. However, it is important that this is dealt with properly by employers. After all, an employer is entitled to dismiss without giving notice to an employee is they are deemed to be guilty of gross misconduct. This will not apply to a case of simple misconduct where dismissal will still apply but notice is required to be given to the employee.

What amounts to misconduct
The law does not define misconduct. However, over time, certain issues have been identified as amounting to misconduct. We have outlined a few examples below:

• theft or dishonesty
• violence or fighting
• unauthorised absence
• disobedience
• misuse of internet/social media
• being under the influence of alcohol/drugs
• harassment of staff/customers
• behaviour which undermines good faith in the employee

What amounts to gross misconduct

Again there is no definition of what amounts to gross misconduct or indeed what the difference is between misconduct and gross misconduct. Generally speaking, the more serious the act of misconduct, the more likely it is that an employer will be entitled to rely upon a finding of gross misconduct. Virtually all of the examples given above can amount to misconduct or gross misconduct and will have to be viewed on a case by case basis. We have however given some examples below as to how the facts of a particular case may influence what decision an employer may reach.

Theft

A minor theft such as taking a colleague's chocolate bar may be seen as misconduct rather than gross misconduct. However, if the employee works with money or in a position involving a high degree of trust then any act of dishonesty may affect how the employer perceives the employee and may lead them to find that the act does amount to gross misconduct.

Violence

An act of violence in the workplace will always rightly be viewed as being serious. However, what if the act of violence takes place outside of the workplace. For example an employee may be cautioned by the police for a minor assault whilst out drinking. If this is the case then other issues will come into consideration such as any adverse publicity and the role in question. For example, a window cleaner may escape dismissal in such a case whereas a carer or social worker who works with vulnerable people may be dealt with very differently.

Misuse of social media

Again this is a question of degree and, to some extent common sense. An employee using facebook or twitter on work's time would not normally face summary dismissal. However, if the same employee was using social media to harass a colleague or make inappropriate remarks about his employer then he may face dismissal.

What does this mean to your business?
Any business must know what amounts to misconduct and what amounts to gross misconduct when dealing with disciplinary issues. Get it wrong and you will face a claim for unfair dismissal with awards averaging between £5-10k. Far better to seek an hour's legal advice so you are aware of your options and how to deal with matters properly and effectively. 

Summary

If dealing with misconduct issues, investigate thoroughly and establish the facts then consider the following points:

• How have others been dealt with for similar matters
• What is the effect upon the business
• What is the effect upon other employees
• Has trust and confidence in the employee been affected
• If the matter took place away from the workplace is this a relevant issue in how the matter is viewed

This blog contains the views of the author and is not intended to be specific legal advice on any particular set of facts. If in doubt then always seek legal advice.

At Chiltern Solicitors we are experts in providing workplace solutions to your staffing issues. Call us on 01582 439795 or email us at info@chilternsolicitors.co.uk. Please take a look at our website at www.chilternsolicitors.co.uk

Why employing staff is a little like running a car

When you first read this headline it makes little if any sense. However, employing staff is very much like running a car and the same principles can be applied to both. We all know that when your car has problems the bills involved can be very large indeed. This also applies to your business if you fail to deal with  staffing issues in the correct way.

An employer who got things wrong which costs the Company £10k
There are many examples we could give of Companies getting staffing issues badly wrong. However, a recent case  we will discuss involves a bus driver in the Tamworth. Mr Blower was employed by a local Company and was on sick leave, suffering from arthritis and diabetes. Whilst he was on sick leave he received a letter from his employer stating that he had been sacked.

Mr Blower took his employer to Birmingham Employment Tribunal and won his case for unfair dismissal and disability discrimination. The employer was ordered to pay him £10k in compensation after both claims were successful.

Where did the employer go wrong?
We do not know all of the facts but it appears that a letter was sent to the employee just dismissing him. It does not appear that the employer considered having a meeting with the employee to discuss matters. It may have been open to the employer to employ the driver in a different role or make reasonable adjustments to his driving role. It may have been possible for the Company to consider a health related dismissal based upon capability grounds. However, it appears that the employer may have just sent the dismissal letter.

How could the employer have dealt with things differently?
At this stage, we come back to our comparison  of a business and a car. Most of us are capable of dealing with simple day to day maintenance with a car. With a little bit of guidance and common sense, we can check the oil, tyre pressures and top up the radiator. However, when the service light comes on we don't go to the garage and reach for the tool box as most of us simply don't have the skills or knowledge involved.

In a business, most of us can deal with the simple staffing issues such as holiday entitlement, an application to leave early and even minor issues relating to performance. However, when the 'service light' comes on in the business such as an employee being absent and the matter needing to be dealt with, many employers do not have the knowledge to deal with the matter correctly. This was certainly the case here and the cost to the Company was £10k.

What can we do as an employer?
As mentioned above, most employers should be capable of straightforward day to day maintenance of their business and any staffing issues. However, if matters are more complicated then the employer needs to recognise that the 'service light' has come on and that help from a solicitor or HR advisor needs to be sought. Your car works better if it receives the servicing it needs when required. Your business is no different. If staffing matters are dealt with effectively and correctly then staff are likely to be happier and more importantly there will be no nasty £10k surprises.  

The above views are those of the author and should not be relied upon in relation to any specific legal matter. If in doubt always seek legal advice.

At Chiltern Solicitors, we are experts in proving HR support. Please see our website at www.chilternsolicitors.co.uk for more details or call us on 01582 439795. To receive regular updates on employment and staffing issues email us at info@chilternsolicitors.co.uk.