We promised to begin adding a library of guidelines and tips to help you and we’re delighted to have fulfilled our promise. This section of the website will be frequently added to and updated.
DISCLAIMER – before we begin it is important that we point out that should you decide to use any of the information provided on this site without our expert guidance, you do so at your own risk.
Almost every employment/employee related situation is unique and as such it is always wise to seek specific expert advice before undertaking any action.
Please feel free to call us or email us for more specific guidance or advice.
One of the most difficult aspects of this is simply where to start. We wrestled with this long and hard, as everyone will have different needs, we thought it sensible to begin with –
Contracts of Employment
Let’s start by debunking some myths – there is NO legal requirement for you to provide a contract of employment to your employees.
Employees ARE entitled to receive a written statement of their main employment terms within two months of starting work for you.
Whether in writing or not an employment contract will exist between you and your employee as soon as they start work for you.
Having saved you some money on drafting new contracts, there are very significant benefits in having written contracts of employment. The clear detail of someone’s terms of employment can help avoid unnecessary disputes with employees regarding any “grey” areas (can we say grey nowadays?) relating to their employment.
Despite what you may see on some other web sites or perhaps what you have heard elsewhere, we don’t believe that there is any such thing as a “standard” contract of employment that you can simply fill in for your employees. Every employment situation is unique and the specific terms of employment should be reflected in an employment contract.
The easiest way to set out the main terms of employment is to give your employees a “statement of main terms”. The letter below is for guidance. Your statement of main terms must include the details below.
Dear….
Further to our meeting last Wednesday 29th December, please find below your statement of main terms and conditions of employment. The following terms and conditions forms part of your contract of employment, except the disciplinary and grievance procedures which are a statutory requirement and do not form part of your contract of employment.
Name:
Employer’s name:
Job Title:
Job Description:
- Insert an accurate summary of the main tasks that the employee will be expected to perform in their role
- (It is very wise to add a sentence along the following lines)
- You may be required to undertake additional or other duties which are within your skill and competence and appropriate to your position.
Start date: Your employment commenced on DATE (the date the employee started working for you)
Salary/Pay Rate: Your salary is £???? per annum paid monthly in arrears. You will be paid directly into your bank account on (the last Friday of every month?)
Hours of work: Your hours of work will be 9:00 a.m. to 5:30 p.m. with a 30 minute lunch break.
It should be noted that breaks are to be taken in accordance with current Working Time Regulations and it shall be the responsibility of the employee to take an unpaid break after 6 hours of continuous work.
Holiday entitlement: Please note that under current UK law all full time employees are entitled to 28 days holiday per year (this includes Bank/Public Holidays). This would be pro-rated for part-time employees
Place of work: Where will your employees be based? It is sensible to add something along the following lines – It is a condition of your employment that you may be required to work at other locations as required.
Sick pay: What are your sick pay arrangements?
Notice Periods: Insert your notice periods and be aware of statutory minimum entitlement that the employer must give the employee. This amounts to one weeks notice for each full year served up to a maximum of 12 weeks. For example an employee with 9 years service will be entitled to 9 weeks notice. An employee with 14 years service will be entitled to 12 weeks notice.
Disciplinary & Grievance procedures: We suggest you follow the ACAS Code of Practice 1 (The “Code”) available free from ACAS. See www.acas.org.uk
Pension scheme: Details of the pension scheme are enclosed. Please note than an employer with over 5 staff normally has to give employees access to a Stakeholder pension(there are some very specific exceptions)
Length of employment (if not permanent): if you are employing people on a temporary basis or for a fixed term you should include the end date of their employment.
Please check that these details are correct, if you have any questions or queries regarding the contents of this letter, please do not hesitate to contact me.
Yours sincerely
The“Statement of Main Terms” letter above can work wonderfully well as a job offer letter, which leads us very nicely on to one of our favourite subjects –
Recruitment
Whatever you may think, people ARE THE most important part of your business – even if your business employs only one person (if that’s you, yes you guessed it right – you are your businesses most important asset!) This is why it is so important to get recruitment right – first time, every time.
Recruiting right is the BEST way to help your business to maximise productivity and to avoid a whole host of people related problems later on. Unfortunately recruitment is such a time consuming exercise that very few people feel able to dedicate enough time to recruit as well as they should.
If you don’t you could end up spending a lot more of your time dealing with other issues and (probably) recruiting all over again.
Time spent on getting recruitment right is an investment not a cost – the cost of getting recruitment wrong is huge and depending on which research you choose to believe can be as much as 15 times the employee’s salary!!
That’s £300,000 for a relatively junior employee earning just £20,000 per year or £1.5 million for someone earning £100,000 per year!!
That’s a lot of money to anyone.
Spending too little time on recruitment can result in the wrong hires, poor performance, culture clashes and another round of recruitment!
We all have pressures on time and most of us know how difficult it can be to deliver against all of our goals and objectives. This is probably one of the reasons that in the UK recruitment has become £19.7 billion p.a. business according to the Recruitment & Employment Confederation (annual turnover figures from April 2009 to March 2010)
That’s a lot of money too!
One of the difficulties that such a sophisticated recruitment marketplace brings is that many employers simply hand recruitment over to an agency or outsourced partner and then blame them when things go wrong.
To get recruitment right businesses need to realise that it is they that are responsible for getting it right. The agency supplies the candidates to the specification that they are given, they don’t (or shouldn’t) write the job specification.
As we’ve already seen getting it wrong can cost you far more that the cost of the agency fee!
So how can we help you with some simple guidance?
To start with you need to plan. In relation to recruitment this involves you properly understanding what you expect your new recruits to deliver to the business and how you are going assess and measure their performance against these expectations.
If you measure the performance of your employees (which is a sensible thing to do), you should start by thinking about how you will be able to assess whether your new recruit is doing well in their job and performing well against your expectations over periods of say, six months, twelve months through to three years.
It is essential that you the WRITE this information down. This act of commitment should really help you focus your mind on what you want this person to do.
Don’t just re-hash an old job description with some new technical terms – an effective job description involves you writing down what the main purpose of the role is. What is the purpose of this job?
After this you need to write down a number (not too long, not too short) of measurable goals that would help the employee to achieve the purpose above.
Now you’ve got an idea of how you’re going to be able to assess someone in the role it becomes far easier to think of what skills, qualities, behaviours and competences your new employees will need to possess to successfully achieve those goals.
Depending on how you are hiring (yourselves, agency, outsourcing partner) you can either communicate this requirement via an advert or directly to your agency or outsourcer.
Please note – when considering any recruitment activity you should be aware of the prevailing discrimination law in the UK. The recent Equality Act 2010 has made discrimination legislation clearer and it has a significant impact on recruitment.
For any specific advice in this area, please email us at info@creamhr.com
However you choose to source your candidates you should try and think about the type of person that you are looking to attract.
In our opinion far too many adverts spend far too long simply talking about the job in hand and what you need to apply and what qualifications they must have……..zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz. It’s boring!
Recruitment advertising is just like any other form of advertising – it’s all about attraction and appeal! Try to make your opportunity as attractive and inspiring as possible to potential applicants. You want them to dream and to think that your job is their ideal job, not just another one like all of the rest they’ve seen – make your advert special and remember that all recruitment activity is PR. How you want to portray your business to the outside world?
There are many different ways to recruit –
- Agency
- Head-hunters
- Executive search
- Job Boards
- Social Media
- Networking
- National Newspaper
- Local paper
- Internal referral schemes
- Internal recruitment teams
Whatever method(s) you choose, we feel that you should seek to attract as many people as you can from a wide target audience. This may frighten the life out of you – don’t let it. Having spent considerable time understanding exactly what you are looking for you should be able to devise a number of effective screening tools to help you sort your applicants into a more manageable number.
Research tells us that a staggering number of people lie on their c.v.’s so a great starting point to help you select suitable candidates can be included in your advert –
Ask applicants to tell you why they feel suitable for the role and to attach this letter to their application
You’ll be surprised how many people don’t do this when they apply to job adverts. That failure gives you a simple screening tool that could cut your applications in half.
Separately devise some technical tests and assessments that you can use to assess candidates specific skills for the tasks you set out in the job description.
These can often be sent ahead of any interview to help you assess the enthusiasm as well as skills of your applicants. A lot of people simply decline to undertake such tests helping you to narrow your pool down to those who actually WANT the job.
Before you ask, YES, some people will cheat – however, normally very few and you can screen them out further on in the process.
Alternatively you could telephone interview your candidates. If you decide to do this we recommend that you devise a small number of questions that will help you to assess suitability against the requirements of the role that you wrote earlier.
Ask the same questions to all applicants.
All of these activities carry a great message about your business – you are thorough and you only recruit people of high quality. This also boosts the morale of your existing staff!
When devising and undertaking any screening activity remember the Equality Act 2010 – your screening tools must be a “proportionate means of achieving a legitimate aim”
Having got this far you can look forward to INTERVIEWING a number of (hopefully) suitable and well matched candidates.
As you may have started to realise effective recruitment requires a structured approach, rather than an instinctive one and interviewing is no different. A structured approach enables you to consider each candidate on a consistent basis and avoid pitfalls and mistakes based on your instinct and personal likes and dislikes (you are unlikely to recruit someone you dislike).
This approach can also help people to overcome the discomfort that they feel when conducting interviews we know that a lot of people are not naturally gifted interviewers or feel particularly comfortable in this area.
When you were drafting the job description earlier you will have listed the skills, qualities, behaviours and competences that you seek in the role. These form the basis of your interview.
Interviews are very artificial situations – it is not often that you ask someone to give you the details of their career achievements over an hour or two. As such it is more important than ever that you get as close as possible to who is the real person sitting opposite (or next) to you, not the polished and interview prepared version.
The best way to do this is to ask for real examples of times when they have been in a situation that would relate to the role you seek to fill. The reason for this is the premise that past behaviour is a good indicator of future behaviour. However you need to seek lots of examples of the behaviours that you seek throughout their career, not just the odd one.
If somebody has a real passion for customer service/satisfaction, then they will have loads of examples of pressured or emotional situations that they turned around and you can explore the details of each scenario to get to the bottom of how they did it (and was it really their idea or someone else’s etc…).
Somebody who doesn’t have this passion may be able to give a few examples, but it is unlikely that there will be as many or that they will be recounted with great enthusiasm.
One great question to ask is how their previous bosses have reacted when they have resigned from previous positions and how they think that their current boss will react when you contact them for a reference.
You want bosses who are either sad to see them leave, who would re-recruit the candidate again should they have the opportunity to do so, or they are delighted that the person has now developed to the level that they have all the tools to succeed in something much more challenging that perhaps isn’t available in their current job.
You should also probe relationships with previous bosses and tell the candidate that you will be following up references from their old bosses (this will help them to tell you the truth). This will give you a good indication of what they’re really like to manage.
Beware – think about the questions that you ask in interviews, particularly in relation to discrimination legislation. It is important to remember that the vast majority of people are decent and honest. However, there are a number of people in this country who make a living from the recruitment process, bringing claims of discrimination that they have been subject to during the recruitment process.
There is an intention to publicise these serial litigants to try and stop repeat claimants bringing such actions. We will wait and see if and when this will have an impact on this behaviour.
You should ensure that your recruitment process is structured. Review every aspect to make sure that the structure is robust and legal.
You CAN ask difficult questions during the process as long as you can demonstrate that they are a proportionate means of achieving a legitimate aim.
If you are unsure about any aspect of this, please get an expert to check for you.
The final section relates to References, Medical Checks and Pre-Employment Checks.
References should always be taken. There are lots of issues surrounding references and there are regular cases of claims being made against former employers as a result of questionable references. Even if the recruitment process that you have followed is fantastic, it is always sensible to follow up on references from the applicant’s previous boss. Apart from the technical tests that you made them take, this is the one area where you can check whether someone has told you the truth during the process.
We advise against formulaic references asking previous employers to fill in boxes about absence, attendance and sickness. Many employers will simply not reply to this.
Ask questions based on achievement and results and their working relationships. Just what did this person bring to the team?
You will generally receive the responses you seek. (Although not always – you may occasionally get abuse!)
Medical Checks. There was a great uproar in the press following the introduction of the Equality Act 2010 saying that you could no longer ask for pre-employment medical history checks on the basis that they could discriminate against a large number of potential job applicants.
This isn’t strictly true and whilst it is sensible to check that you are entitled to ask for certain information, there are situations where it is essential that somebody is physically able to perform certain tasks. If your new employees are likely to work in an environment that could be dangerous, then you need to know that they are physically able to do so and that they do not have a medical history that could place them at greater risk.
This is a very important area and as we can’t give examples of every situation that you will face, it is wise to seek expert clarification. For free information contact ACAS at www.acas.org.uk
Pre-Employment Checks. We still are quite amazed by the number of employers who do not realise that it is their responsibility to check that the person that they are about to employ is legally allowed to work in the UK.
This requirement became law in May 2004, so you really have no excuses. The courts certainly don’t accept many.
You MUST check the eligibility of your potential recruit BEFORE they start work for you. Failure to do so means that you will have no defence against a potential fine of up to £10,000 for recruiting illegal workers.
The best way to check is to contact the Border Agency at -www.ukba.homeoffice.gov.uk
They will always be the source of the latest guidance on these matters.
The one thing you should take from us is the importance of proof. Whatever steps you are required to take you must photocopy and securely store the information to prove that you did what you were meant to do.
If you recruit someone who provided you with forged documents, as long as you can prove that you properly checked the documents, you should be safe.
Simply writing this very brief overview took considerable time. Recruitment is time consuming. However, by investing time in the process and working outs ways to ensure that you recruit the best person for the job, you can actually enjoy recruiting.
The benefits of doing it well far outweigh the cost of doing it badly!
One outcome of poor hiring is often a high level of conflict from people who have been hired for roles that they are either unsuitable for or unhappy in. This leads us nicely onto another massive topic in people management…..
CONFLICT & DISPUTE RESOLUTION
We were really looking forward to writing this section (NOT!!) and we have to start with a simple cop – out!
It is virtually impossible for us to give you specific advice or guidance about your employee disputes without getting full details from you.
The reasons for conflicts and disputes are infinite and if you are struggling to resolve disputes, you should seek expert advice. We are more than happy to help and there are many other organisations with expertise in this area that can help.
However, in light of very clear instructions from government and judiciary, it is important that you realise that you are being asked to try and resolve workplace disputes internally, before they escalate, become entrenched and potentially lead to Employment Tribunal.
Our experience suggests that Employment Tribunals take a pretty poor view of businesses that can’t show that they have tried to reasonably resolve employee/employment disputes internally to avoid costly and time consuming legal action.
Let’s start at the beginning – however fantastic your business, conflicts at work are almost inevitable. In most cases conflicts at work can be a good thing and often lead to some very constructive dialogue as long as they are handled well.
Whatever causes the conflict or dispute the best piece of advice that we can give you is DO NOT AVOID the issue and hope that it will go away. It won’t and if you do, you are probably storing up trouble for the future.
I don’t want to deal with this now – surely things will just calm down and go away?
There will be occasions when it may be best to try and defuse a situation and let things cool down before trying to get into the detail of resolving the dispute – particularly if there is a great deal of emotion involved. You will have to judge yourselves how best to do this. Whatever the situation do make sure that you address the issue in good time.
Most of us avoid conflicts and we all face situations that we’d rather avoid if we could. As human beings we have an automatic response to potential conflict situations using our “fight or flight” response – it’s actually “stop, fight or flight” (we do generally need to quickly assess the situation before deciding which action to take).
At work most people decide not to fight and many managers and supervisors very definitely decide that flight is a better response. However If you consider all three responses – STOP, FIGHT or FLIGHT – none of them are really appropriate ways of dealing with workplace conflict. Confronting workplace conflicts in a positive manner almost goes against our instincts.
Many years of evolution have developed our stop, fight or flight response – we’ve only been working in organised groups in factories and offices for a relatively short period of time and as such may not have developed an instinctive response to workplace conflicts!
If you do face an emotional dispute and feel that it is most sensible to allow people to “cool off” before dealing with the issue – make sure that you have control of the situation.
Something along the following lines might be most sensible “I know that now might not be a great time to speak. However I do need to speak with you about what happened this morning (or whenever). Shall we book some time tomorrow morning?”
Potential conflicts at work arise for so many reasons, the list really is endless and we cannot hope to give you examples of what you should do in each situation.
All of us are subject to many different pressures and we all behave differently under pressure. When people are suffering from external pressure it can sometimes spill into the workplace and affect how they may handle relatively normal events.
As a business owner or manager it is important that you are aware of these potential pressures and that you keep an open mind when dealing with a problem. You need to be able to objectively assess what has happened and think about what solutions you might be able to implement to prevent something happening again.
Sometimes conflicts arise because of very different personalities clashing at work, which may include yours! On other occasions the situation will involve dealing with more obvious matters such as people feeling that colleagues are not “pulling their weight” by often arriving for work late, regularly having time off sick or not mucking in with some of the less enjoyable parts of their job.
Whatever the situation the most important things that you need are –
- Facts – you need to get as many facts as you can BEFORE dealing with the issue
- Your ears – listening is a much under-used skill! How can you begin to understand a problem if you don’t listen?
- Objectivity – you should want to reach a satisfactory outcome, whatever that may be!
Before you begin to address the situation be aware of your own feelings towards the person or people involved. Don’t be swayed by your personal feelings, make sure you get as many of the facts before you sit down with the person(s) concerned.
Explain to them what they have done and how this breaks the rules – listen to what they have to say. It is important that you actively listen – in doing this you can repeat what someone has said to you to check that your heard them correctly. For example – “if I understand you correctly, you called the office at ten to nine to inform us that you were going to be late. Nobody answered the phone and the answer phone wasn’t on. Is that correct?”
Don’t prejudge a situation before you have listened to and understood the explanation.
Sometimes it is very hard not to offer your own opinion at such times and to belittle or undermine their explanation. Whilst you may feel that this will give you some satisfaction, it is not particularly productive and will perhaps prevent a sensible solution being reached.
The most important part of managing conflicts is to try to work towards a solution. This could be quite serious – telling someone exactly what the potential consequences of future behaviour may be or agreeing a new way of working that might accommodate a particular difficulty that someone might face.
For example somebody who is often late for work and relies on public transport, they may genuinely struggle to get into work on time. Would it be possible to agree some flexibility provided that they make up any lateness? Could somebody else in the team offer them a lift into work? What can be done to help?
As we said earlier, each situation is different, there will be occasions when you know that people are deliberately misleading you or not telling the truth, you have to decide how best to manage these situations and if you really are struggling, seek advice and guidance.
When managing by the rules we often come across situations where some people get away with anything and others are punished for the slightest indiscretion.
Effective man-management involves applying the rules consistently. That doesn’t necessarily mean that you can’t deal with bad behaviour or bad attitudes – you can. However, if you have rules – they apply to everybody.
For example if you conduct back to work interviews for employees following sickness absence (which we highly recommend), make sure that you hold them for everyone – don’t use the opportunity to pick on people that you don’t like.
When you look at the facts your star employee may have higher levels of absence than you think, their performance at work could make up for this shortfall, whereas a poorer performer may appear to have higher levels of absence, because you don’t like them as much!
Check that the person who you think is off sick every second Friday, is actually off every second Friday and it’s not your imagination? If they are then use the back to work interviews to address the facts at your disposal.
What about conflicts of personality between team members or between you and your colleagues?
These situations can be much harder to manage. If you are dealing with a conflict between team members, then as the manager your role is to get these people together to give both (or more) sides the opportunity to give you their side of the story – stop each from “butting in” whilst the other speaks as they will all get a chance to speak.
You need to listen to what is being said and try to understand each person’s point of view – find out what the conflict is about. Take notes and check that you have really understood what is going on. Let everybody have their say before trying to develop solutions. It’s often tempting to offer opinions during these conversations – don’t. In situations such as these your role is to let everyone air their feelings by facilitating the meeting – you are not there as judge, jury and executioner!
You may well have some good ideas that may resolve the situation, before you offer them it is sensible to ask the people concerned to try and come up with their own ideas and solutions.
You can try an approach as follows “Ok, thanks for telling me what this has all been about. I think that I’ve got a good understanding of the problem, now what ideas have you got that might stop this from happening again?”
If they aren’t very forthcoming you can try and draw them out with something along the lines “what would you both (all) think if we did …..?” You need to draw all parties into a constructive dialogue about resolving the issue. This is far more productive as all those involved will feel more ownership of whatever is agreed. Implementing rules may not resolve the issue in the same way.
These situations can be really positive as you may be identifying some underlying issues that you team were feeling. By handling the problem as a facilitator and by looking for the people involved to find their own solution (with your guidance) you should achieve some really positive outcomes.
In such a situation and after you have agreed a solution it may be sensible to reflect with the team and say something along the following lines; “I’m pleased that we’ve all managed to agree to a sensible solution to prevent this from happening again and thank you all for your honesty and the mature way in which you have listened to everyone’s point of view. I hope that we don’t ever reach this situation again and if you are feeling frustrated about anything, don’t let it boil over, make sure you speak to one another and if necessary to me to help us deal with whatever we need to.”
As we said at the start of this section, it is impossible to predict what conflicts or disputes you may have to manage.
It is important to try and resolve disputes at work. If you are struggling, seek expert advice to help you arrive at a satisfactory conclusion.
Some Simple Do’s and Don’ts to help with the current Disciplinary process
The purpose of this guide is to ensure that all managers and business owners are aware of the importance of following the correct legal procedures in handling disciplinary matters.
If you are considering taking disciplinary action against any employee it is imperative that you follow the correct procedure. There have been a few recent cases in Employment Tribunal where the judge looked through the entire disciplinary process (i.e. the disciplinary meetings before the final dismissal) and found errors in the process, which lent weight to the employee claims for unfair dismissal.
By following the procedure correctly you prevent this type of potential claim and it is good practice to apply disciplinary procedures consistently across any business.
You always need to –
- Deal with any disciplinary matter promptly - there is no set rule for this the phrase that ACAS use is “whilst the event is fresh in the mind” – ideally you should deal with a disciplinary matter within two weeks of the event taking place. Exceptions to this would be when a lengthy investigation may be required before the disciplinary meeting takes place.
- Give your employee TWO FULL working days notice of the disciplinary meeting. They have a right to prepare for the meeting.
- Write to the employee telling them exactly what it is they are being disciplined for. Ensure that your letter is clear and sets out what they have done that has resulted in the action being taken and why this is a disciplinary matter – the clearer the better.
- IF you have to conduct an INVESTIGATION before the disciplinary the investigating officer needs to be different from the disciplinary officer.
- ALL EVIDENCE from the investigation MUST be sent out with the letter inviting your employee to the disciplinary meeting. The investigation notes must be properly formatted.
- Give the right to be represented at the meeting. Employees are entitled to be accompanied by either a trade union representative or a work colleague. Work colleagues do not have to agree to represent a colleague if they are asked.
- Clearly set out the potential consequences. Your employees are entitled to be told what the potential outcome of the disciplinary meeting could be. You should tell your employee in writing what the worst case scenario might be as a result of the disciplinary meeting. If somebody may be dismissed as a result of gross misconduct, they need to be told that this may be the outcome.
- Give them the right to appeal your decision. After you have made your decision your employee is entitled to appeal the decision if they disagree with it or think that you have been overly harsh. They must set out their reasons in writing and ideally will appeal to someone who was not involved in the original meeting.
- Give your decision in writing, you must set out your decision in writing and give the right of appeal in writing.
- Have a note taker in the meeting. You should always try and ensure that someone accompanies you in the meeting in a note taking capacity. Notes are important to refer back to following your decision.
Do Not –
- Simply call someone into a disciplinary meeting without notice or without written details about the disciplinary matter. This clearly contravenes the ACAS guidelines
- Use a disciplinary meeting to bring up historic issues that you want to address unless they have direct relevance to the current matter in hand.
- Allow your employee to bring in a mystery “friend” to the meeting, these people are often some reasonably knowledgeable HR or quasi “legal” types
- Give your decision during your meeting, it will look like you had already made up your mind and have not considered anything that has been said to you in mitigation during the meeting. Finish the meeting and then consider everything that has been said to you during the meeting before reaching a decision. You can take from half an hour to even a day or two.
- Don’t ever not give a decision or leave someone waiting for too long for your decision. If you have a reason to delay your decision tell the employee concerned that there will be a delay and why. You cannot simply leave someone in limbo. If you are unsure what to do, seek advice.
Please Note – Almost every situation involving people will be different in some way.
If you have a serious matter to deal with such as possible theft or violence at work you may need to suspend the person concerned to enable a full investigation to take place.
For help on how to handle any specific situation seek expert advice
RETIREMENT
As many of you will be aware in April 2011, the default retirement age was abolished in the UK.
With an ageing population and the associated costs via state pensions and other major institutions such as the National Health Service, it was only a matter of time before this happened.
The challenge that businesses and other employing organisations face, is that there has been NO useful guidance on how businesses can safely retire people, when retirement may be a sensible option. This leaves business owners and managers facing a dilemma of balancing health & safety requirements (the standard employer’s duty of care) with employment and discrimination legislation such as the Equality Act 2010.
If an employee intends to retire themselves then we suggest that the employee speaks with their immediate manager about their intentions at the time of a request being made.
If you (the employer) are considering that retirement might be an option for an existing employee you need to proceed with care.
If you are concerned about an employee remaining at work at any time when you believe that retirement could be an option, then you will need to ensure that you do not discriminate against the employee by discussing it with them without acknowledging their right to continue to work. If you have genuine concerns about their capability to continue in their role due to health reasons then we suggest that you conduct a capability process to ensure that the employee is capable of carrying on working in the same way that you would for any other employee of any age. You should also request that the employee attends an independent medical assessment to assist with the decision.
The most important aspect is to ensure that you treat employees of all ages consistently otherwise you may fall foul of either age or disability discrimination legislation. If the employee you wish to retire can point out that other employees in a similar role are not subject to a capability process despite performance issues, it is likely that the employee will suggest that you are only selecting them on the basis of their age.
This area of legislation really is a “HOT POTATO” and until we have seen some cases go through the Employment Tribunal or Court system or until we receive clear guidance from government, we suggest that you ALWAYS SEEK EXPERT ADVICE relating to your specific situation.
