The prospect of Brexit has brought with it increased uncertainty, potentially tougher markets and possibly a smaller pool of the right job candidates. Recruiting and retaining the right people, and managing their exit from the organisation, has never been more important.
There is also an increasing school of thought that puts HR strategy at the forefront of business strategy. Freeing up resources to focus on substance over form may be at its most critical stage since HR procedures first infiltrated businesses. There’s never been a better time to de-clutter HR processes in order to enable organisations to manage employment law risks more efficiently.
Assessment and selection
Often businesses increase procedure and note taking with the aim of being transparent and fair. But lengthy processes, involving too many notes, increase the risk of discrimination claims under the Equality Act 2010 from unsuccessful candidates. Where the outcome of the process is known in advance (which is often the case in internal recruitment) the risk increases due to the similarities between the candidates (in experience, for example). They cannot be distinguished from each other enough to explain the ultimate decision.
Because of this, employers should:
Employers should set out employment contract terms in one document. Overlapping and multiple statements regarding the same contract term – such as statements in offer letters on bonuses, other benefits and notice periods – creates uncertainty. Employees could argue the offer letter applies to their employment rather than their contract of employment or argue that benefits in their offer letter – such as share option entitlements or handbook provisions – are contractual.
Although using standard terms in contracts makes sense in most cases, it is worth considering contracts of employment for key employees in more detail to ensure they are appropriate. Using standard terms in this context can often leave businesses exposed.
The organisation should also have regular informal meetings with key employees to gauge how the employment relationship is going and to ensure the business's exposure is managed if that employee leaves. Companies should also avoid subjecting employees to any standard processes (such as appraisals and performance reviews) if these are irrelevant to them.
Resignations and terminations
The key areas of risk for businesses when employment ends are employment claims, and employees taking business with them when they leave. The most obvious employment claims are whistleblowing, discrimination, and breach of contract/unfair dismissal. Garden leave and post-termination restrictive covenants can protect business interests. Employers should:
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