An employer is bound by statute to produce and disseminate certain policies and procedures to their workforce, whilst others are advisory. Even if advisory, having the policy in existence at all will be looked upon favourably by an employment tribunal if an employee were to raise a claim.
It is important to distinguish policy and procedure from terms and conditions of a contract of employment, as the latter can only be amended through mutual consent of both parties. An employer will, therefore, enjoy flexibility in continually updating their policies if needs be. It is highly advisable to consult an Employment Solicitor to assist in drafting workplace policy in order to establish these distinctions.
These policies are mandated by statute, and it is unlawful for an employer to operate a business without them.
Health and safety
By virtue of the Health and Safety at Work Act 1974, an employer who employs five or more individuals must procure a written health and safety policy. The policy should outline who is responsible for ongoing risk assessment, fire and electrical safety and issuance of a workplace manual. The employer’s policy should try and adhere to the 1974 Act and subsequent regulations “so far as is reasonably practicable” in order to avoid sanction.
The employer’s policy must facilitate ongoing training for employees and management staff.
Terms and conditions of employment
The Employment Rights Act 1996 mandates that employers provide on demand a written copy of the terms and conditions of their employment contract, including any process for handling grievance procedures. The written statement should include:
- the dates tenure is expected to commence;
- rates of pay and frequency of pay;
- notice periods for dismissal or leaving the position;
- holiday pay;
- entitlement to sick pay; and
- entitlement to pensions.
Company directors are entitled to copies of their service agreements at their registered office.
It is not unlawful for an employer to fail to have these policies in place but it will leave them vulnerable to claims before the employment tribunal, which can result in penalties being awarded against the employer over and above any compensation to the employee.
Equal opportunities policy
Codes of practice produced further to the provisions of the Equality Act 2010 recommend that employers have equal opportunities policies in place, covering discrimination at work on the basis of protected characteristics. These include race, age, gender, sexual orientation and religion. Such policies are not legally binding on the employer but they do serve to guard the employer against claims brought by an employee before the employment tribunal.
An equal opportunities policy should indicate its aims, and designate managerial staff responsible for enforcing its provisions. It should outline which types of discrimination based on protected characteristics are prohibited, and present the business’ complaints procedure if discrimination has occurred. If employees themselves embark on discriminatory conduct, the sanctions that will be imposed by the employer will be noted.
The policy should cover instances where discrimination occurs, most notably dismissal, contractual terms and conditions, pay and benefits, training, redundancy and recruitment.
An employer must act reasonably when bringing disciplinary proceedings against an employee, and having a clear policy for the employer to adhere to will shield them against claims they acted unreasonably in sanctioning or subsequently dismissing the employee.
A disciplinary policy should outline the three key stages of investigation, disciplinary hearing and potential appeal against a decision of the employer. If an employer has an ongoing performance review procedure in place, this must be carried out in a non-discriminatory manner.
A policy can never seek to punish employees or workers for whistleblowing on business activities that potentially entail criminal activity or obstruction of justice.
Data protection, monitoring and surveillance at work
The Data Protection Act 1998 provides core principles for handling employee’s personal data, including accuracy, relevancy, retained for lawful purpose and for longer than necessary. If an employer does handle personal data, they must inform the UK’s Information Commissioner’s Office. The employer must have a clear, detailed and transparent policy in place for the gathering and use of personal data.
In accordance with the Regulation of Investigatory Powers Act 2000, an employer can only intercept employee communications where their express consent or implied consent is provided. The Telecommunications Regulation 2000 does permit monitoring without consent, but only pursuant to regulatory authority or for the prevention of crime.
Human rights considerations for monitoring policies
Through the Human Rights Act 1998, the guarantees of the European Convention on Human Rights are incorporated into UK domestic law. This means that employees can bring claims based on case law of the European Court of Human Rights.
The European Court of Human Rights has interpreted Article 8, encompassing the right to privacy, as requiring that employers distribute information technology policies. The Court has also held that personal correspondence, including emails, sent from the workplace externally could only be monitored if explicit warning was given to staff.
An employer should be aware of developments in the field of human rights law and continually update their policies in accordance with any changes.
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Having robust policies in place that meet statutory requirements is paramount for avoiding employee disputes that can disrupt day-to-day business operations and potentially lead to costly and time-consuming litigation. It is highly advisable to seek the ongoing assistance of an Employment Solicitor in order to meet continually changing legal requirements.
At Lewis Nedas, our Employment Law Solicitors have over 25 years’ experience in advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including internal policy and procedure.