New year brings resolutions in employment law

JANUARY 8 is becoming known as Divorce Day because it’s the day on which family lawyers get a rush of inquiries about divorce proceedings following the festive season.

It’s human nature to put off having difficult conversations about failing relationships until after Christmas.

And that holds true for working relationships as well as personal ones. Dissatisfied employers and unhappy employees let things slide over December but make New Year’s resolutions to sort things out.

Employment lawyers, like divorce lawyers, experience a spike in January of inquiries about a possible parting of the ways.

The first question I ask of either employee or employer in this situation is whether if I handed them a magic wand they would wish to improve things at work or whether they would wish for a “divorce”.

Employees usually choose “divorce”. This is generally because employees who want to fix a working relationship will first try to do so internally, via Human Resources, with the support of their trade union representative if they are a member.

Only if this is not working do they then take the step of taking legal advice, meaning by the time they do so they have already concluded that a parting of the ways is the only option, as making up has already been tried and failed.

What employees then want to know is whether they have grounds for an employment tribunal claim or to negotiate a payment to leave.

The factors leading to the breakdown of working relationships are varied. Some employees have good grounds to bring claims, others do not. Sometimes I have to be blunt and say that not liking your job much and wanting a “New Year, New You” means it is time to move on, not time for a pay-off.

Employers are more likely to take advice at an early stage and when the options available to fix the working relationship have yet to be considered. There are good business reasons for trying to maintain the working relationship, including avoiding losing an employee’s skills and experience, the costs of recruiting and training a replacement and the risk of a tribunal claim. 1. Reviewing the performance appraisal procedure. Some employers (and not just small employers) either don’t have a formal appraisal procedure at all or are not following it. Has your employee been told what is expected of them and within what time frame? If you don’t consider your employee is achieving what you expect of them, could this be because you haven’t told them precisely what that expectation is? 2. Challenge your appraisal process and how you define success. Watch out for subjectivity and personal bias creeping in. People inevitably like some people more than others and this can result in line managers assessing some employees more generously than others against ostensibly objective criteria. Just because you worked long hours to get where you are today doesn’t mean that an employee who leaves on the dot of 5.30pm is failing, if they are otherwise meeting targets. 3. Is an employee failing due to capability (not succeeding despite trying) or conduct (not succeeding because not trying). Should a performance improvement plan be implemented rather than a disciplinary process? What assistance could you offer to help the employee’s performance improve, such as training or mentoring? 4. Is the problem not performance but the employee’s relationship with their colleagues? If so, consider mediation instead of or alongside other processes.

Having considered these options, employers will still decide from time to time that the answer to the magic wand question is to end the relationship sooner rather than later. If that is the decision, employers should take legal advice on the process they should follow to achieve the end of the relationship on agreed terms and avoiding an employment tribunal claim.

EMPLOYERS CAN CONSIDER THE FOLLOWING OPTIONS:

Bethan Darwin is partner with law firm Thompson Darwin.