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EMPLOYMENT LAW ADVICE

The ability to offer competent, effective and sustainable employment law advice is gained through a combination of having achieved the academic legal accreditation and the years of practical experience gained through resolving employment law issues. Each of our team members is qualified to develop the systems and procedures that meet the unique requirements of the individual business.

PROTECTING YOUR BUSINESS

As a business owner it can be difficult to put in place everything you need in order to safeguard you from a legal perspective.

Employment law is often a complex and unfamiliar area and with limited time and resources it can be challenging, especially if you are to keep up with current legislation.

BHP Group can help ensure you stay legally compliant by preparing everything from individual employment policies to complete employee handbooks and contracts of employment.

We recognise that every business is unique and offer a cost-effective solution designed around you and your business to meet those very individual requirements.

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This document forms the basis of the relationship between employer and employee and there are certain terms that must be included within it to ensure compliance with the Employment Rights Act 1996. Inclusion of these terms is just the start: a well-drafted contract of employment provides the employer with the flexibility required to adapt their business and respond to the changing demands of their workforce.

The ability to adapt to shifting situations is essential for any employer. An example of this could be the need to reduce the workforce in response to a shortage of work or the ability to recover costs from an employee following an accident in a company vehicle. Without contractual power to act in certain situations, employers’ rights are seriously compromised and the contract of employment obstructs rather than assists.

At BHP Group, every contract of employment we draft is bespoke to the individual and they empower the employer to react to the ever-changing economic climate as well as to challenging situations within the workplace.

If your company already has contracts of employment in place, we will review the documentation and make the necessary adjustments to meet the criteria detailed above.

When issues and conflicts arise in the workplace, an early resolution is the best solution. Employers will then avoid the cost, time and stress of disputes that culminate in hearings at the Employment Tribunal or Courts.

BHP Group are qualified to guide you through any workplace dispute. We aim to achieve a resolution with minimal disruption to your business and to reduce the risk of a tribunal claim. We provide whatever level of support you require – from leading the entire process to a more remote, advisory role.

We also offer alternative approaches to managing conflict, which include dispute resolution. We write and deliver training sessions for your senior staff where they learn to handle difficult conversations, manage employee grievances and to conduct disciplinary proceedings within legal compliance.

Although there is no longer any requirement to follow a routine procedure, when considering disciplinary action against an employee, the ACAS Code of Practice sets out clear guidance: a reasonable procedure must be followed. This can be time-consuming and stressful to all parties. BHP Group offer a full range of support from ensuring that, as an employer, you are acting within the recognised procedure through to conducting the hearing on your behalf.

The GDPR harmonises data protection laws across the EU to take account of globalisation and the ever-changing technology landscape. The UK began implementing the General Data Protection Regulations in May 2018 and when the UK leaves the EU, UK data protection legislation will ensure that the principles of the GDPR remain in UK law. It will apply not only to EU companies but to any company processing the personal data of individuals in the EU in relation to offering goods or services or to monitoring their behaviour. Significant penalties can be imposed on employers that breach the GDPR, including fines of up to €20million or 4% of annual worldwide turnover, whichever is greater.

The level of fine will depend on the type of breach and upon any mitigating factors but they are undoubtedly meant to penalise any employer’s disregard for the GDPR. There are a number of changes employers need to make if they are to avoid being subject to new enforcement penalties:

  • More detailed privacy notices

  • Establishment of clear legal grounds for the processing of personal data, as relying on consent is unlikely to suffice

  • Develop a data breach response programme to ensure prompt notification that meets the new 72 hour notification requirement

  • Determine whether or not a Data Protection Officer must be appointed and, if so, consider how best to recruit/train/resource one.

The introduction of the GDPR represents one of the biggest changes and greatest challenges to data protection for many years and small businesses may struggle to meet the requirements if they must rely on existing in-house resources.

BHP Group can provide a trained legal advisor to implement the changes necessary for your company to achieve compliance and to ensure that your entire organisation is aware of the requirements and implications of this very complex area of legislation.

Employment policies form the ‘rule book’ by which you manage your workforce. Without clear and unambiguous policies, you are restricted in both the rules you can enforce and the action you can take should an employee fail to meet the standards you require; whether this is breaking the law on smoking, indulging in behaviour that can be construed as bullying or harassment or a whole range of standards that you, the employer, wish your employees to adhere to.

Employment policies also provide your employees with clear guidance on their rights and responsibilities, from when and how they can take their annual leave to the procedure they must follow if they wish to request any form of flexible working (see below). If a dispute arises, it is your employment policies, (together with the contract of employment), that you must rely on to support your position.

It is vital that these documents combine to provide the operational reality of your business with the need for legal compliance. BHP Group will work with you to provide a range of employment policies that will assist you in managing your workforce effectively and efficiently.

The growing demand for flexibility by both employers and employees alike and the increasing profile of flexible working arrangements has led many to believe that flexible working is a right but in reality, the right is confined to requesting a flexible working arrangement.

The process can be daunting for both parties. Having a clearly written flexible working policy is a good start but managing the process can prove to be tricky. BHP Group can guide you through this process to ensure that you take the right decision in the correct way for your organisation.

No business is immune from restructuring regardless of size. BHP Group provide advice on every stage of the process and support you in managing the change as seamlessly as possible. When it comes to redundancy, it is vital to follow the correct procedure including the correct redundancy consultation process.

A genuine redundancy situation can result in a finding of unfair dismissal at Employment Tribunal if you do not adhere to the correct processes. If you are considering making any employee redundant it is advisable to take specialist advice to ensure you follow the correct procedures.

Our service includes:

  • Advising on the legal obligations

  • Employee representative recruitment and training

  • Providing support with consultations

  • Developing legally compliant selection for redundancy criteria

  • Managing redundancy dismissals

  • Helping the survivors

Although the right to claim unfair dismissal only arises after two complete years of service, where redundancy selection has been found to be have been made for a discriminatory reason, an unfair dismissal claim is possible from day one of the employment relationship. Therefore, a best practice approach for all employees is strongly advised.

In the UK the Equality Act 2010 makes it illegal for an employer to discriminate against an employee. If an employee believes that their employer has done something that amounts to their being treated unfairly because of the way that they are, then an employer may be vulnerable to a discrimination claim under the Equality Act.

Discrimination claims can be very difficult to handle: only certain kinds of conduct can be deemed to be discriminatory. Furthermore, the conduct must be of a certain degree before there can be a potential legal action.

Under the Equality Act, there are certain characteristics which people have which cannot be used to treat them unfairly:

  • Age;

  • Disability;

  • Gender (including gender-reassignment);

  • Marriage/civil partnership;

  • Pregnancy/maternity;

  • Race;

  • Religion;

  • Sex;

  • Sexual Orientation.

Each of these characteristics are deemed ‘protected characteristics’. If an employer takes any action that is unfair and it relates to any of the characteristics listed above, then this may give rise to a discrimination claim.

In addition, there are in fact several different kinds of discrimination but the important point is that an employer cannot treat an employee unfairly based on one of the ‘protected characteristics’. Depending on the particular circumstances, an employer’s actions may be deemed to be a particular kind of discrimination.

CLASSES OF DISCRIMINATION:

Direct Discrimination

If an employee is treated differently to how other employees are treated based on their possession of a ‘protected characteristic’, then an employer may be guilty of direct discrimination.

Indirect Discrimination

Indirect discrimination is where an employer treats an employee in the same way as they do their colleagues, but this treatment has a worse effect on a particular employee because of who they are, e.g. their race, their sex etc.

Harassment

If an employer or their other employees behave in an unwanted or unwelcome manner towards an employee, which is meant or has the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, this may give rise to a claim of harassment. It is important to understand that conduct will only be unlawful if it is because of, or related to, the protected characteristics i.e. their race, age, sexual orientation etc.

Victimisation

This type of discrimination characterised by an employer or one of their other employees treating an employee badly because they have made a complaint about being a victim of discrimination in the past e.g. direct, indirect or harassment. Employers are obliged to take reasonable steps to protect an employee where that employee has previously claimed to suffer from discrimination. If they fail to do so, they may be vulnerable to legal action.

Maternity and Pregnancy Discrimination

If an employer treats an employee unfairly owing to their pregnancy or to having recently given birth, causing them to be disadvantaged, they will be guilty of having treated that employee unfavourably under the Equality Act.

Employers are forbidden from taking employees’ absence from work owing to a pregnancy-related illness into account when considering their employment. Furthermore, if they are notified that their employee is pregnant, they are obliged to carry out a risk assessment to ensure that there are no health and safety risks to the employee or their unborn child.

Settlement Agreement discussions are the precursor to a settlement agreement. These discussions are intended to conclude with the employee’s departure from their employment.

If you are faced with a problem employee and feel that bringing the employment relationship to an end is the best way forward, it is now possible to have confidential pre-termination discussions with your employee to attempt to negotiate the termination of the employment contract.

Such discussions are held ‘off the record’ and in order to avoid carrying out a lengthy disciplinary/capability or redundancy procedure and/or have the risk of a tribunal claim. Whilst these discussions are very popular with employers in respect of ‘problem’ employees, if the discussions are to remain ‘inadmissible’ they must be brought about and carried out in very specific circumstances.

Where Settlement Agreement discussions lead to a Settlement Agreement being reached, an employer can be certain that the employee will not make a claim against them, provided the Settlement Agreement has been comprehensively constructed.

However, as with most legal processes, the rules of compliance are complex and seeking professional assistance is advised ahead of conducting settlement discussions.

BHP Group has successfully negotiated many Settlement Agreements on behalf of clients and are qualified to provide support through the entire settlement process.

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EXPERT ADVICE TAILORED TO YOUR BUSINESS