We’ve got something a bit different this week, a great guest post from one of our Associate Consultants Mara Thorne, who shares her insights into some common misconceptions about what employers can and can’t do, so if you want to know more about her insights read her post below.
They say that “a little knowledge is a dangerous thing” and when it comes to HR this can certainly be true. In my work I have come across a variety of erroneous beliefs about what employers can and cannot do, which result either in them not taking appropriate actions because of a misplaced fear of the consequences, or taking the wrong actions and subsequently getting into hot water. So I am going to explode some HR myths that may be holding you back, and explain what you can do, and how. Here are the first three.
1. You can’t give a bad reference about a former employee
There is an exaggerated fear nowadays of giving references that convey anything more than the dates of employment and job title of a former employee. Some employers seem to think that they will be sued if they disclose any information that shows that person in a poor light. Given that in most sectors there is no requirement to give a reference (exceptions include Financial Services and sectors relating to national security, to name but a few), you could as a matter of policy decline to do so at all. However, this could be construed in a negative manner, and if the employee was perfectly satisfactory that would probably not be the right thing to do. Hence many employers stick to the “dates and job title” type of reference, to be “on the safe side”.
However, it is wrong to think you cannot give a “bad” reference – provided that the information is factually correct, objectively justifiable, and does not give a false impression of that individual taken in the round. Venting your spleen and blackening somebody’s reputation without justification, simply because you are annoyed about them leaving, is absolutely not appropriate. But, for example, if the person did not pass their probation because they could not get to grips with the role, or you dismissed them for misconduct, poor attendance or some other justifiable reason, there is nothing stopping you from passing on that information, particularly if the new employer specifically asks about the circumstances of their departure.
In fact, to be fair to the new employer, it is bad practice to give a glowing reference about somebody who was guilty of misconduct or whose performance was unsatisfactory, or whom you reasonably believe to be unsuitable for the job they have been offered. For example, if you know that the person has had their driving licence suspended, it would be irresponsible to give them a ringing endorsement if they have been offered a driving job.
However, you must be careful to give a balanced and objective account of that person’s employment with you. You should not mention only half the story, as this would be misleading. So, if the person was a good and loyal performer who had to be dismissed after a prolonged illness, failing to mention the fact that they had been a good and loyal performer before getting ill would give an unbalanced account and thus be unfair to that person.
So as with most things, a little time and consideration is needed when responding to reference requests, but as long as what you tell a future employer is factually correct and paints a fair and balanced picture of the individual, there is nothing much to fear from passing on the truth, warts and all.
2. You can’t contact somebody who is on long term sickness absence
Sometimes, when employees are signed off work, particularly for a lengthy period of time, employers feel they shouldn’t make contact with them in case it is interpreted as intrusive. So they wait for the employee to update them about their progress, unable in the meantime to make informed operational plans.
Obviously you need to be empathic and sensitive in your communications with people who are unwell, particularly if the illness is embarrassing to talk about, or the person is suffering from stress or anxiety. However, touching base from time to time to ask how they are feeling, will show that you care and that it’s not a case of “out of sight, out of mind”. In fact, a deafening silence from the employer can increase the person’s sense of isolation, and a call or email may be greatly welcomed.
Reasons for making contact will present themselves from time to time – perhaps a colleague has had a baby, or a vacancy has arisen, or you have won an important order – and while sharing the news with the absent individual to show that you are thinking of them, you can also take the opportunity to find out how their recovery is progressing.
If the time is approaching when the medical certificate (“Fit note”) is due to expire, it makes sense to call, text or email the person to find out whether you can expect to welcome them back to work shortly or to receive another medical certificate. If they are coming back, you can bring them up to date on what has been happening with the projects they were working on, or any changes within the team while they’ve been away. If not, you can plan for their continued absence accordingly.
Just because a person is unfit to work, doesn’t mean they are unfit to have a chat – even a visit if they are up for it – and it may help them get mentally prepared for their return if you keep the lines of communication open.
3. You can’t dismiss a woman who is pregnant or on maternity leave, or make her position redundant
Being cautious about how you deal with a pregnant woman or new mother makes perfect sense, but sometimes employers take this too far and feel they cannot do anything at all, regardless of what is happening in the business, for fear of an allegation of discrimination.
In fact, what the law prohibits is any detrimental treatment of a woman because she is pregnant or on maternity leave. As long as you treat her fairly in situations where dismissal may be appropriate, be it for reasons of conduct, capability or redundancy, you won’t go far wrong.
So if a pregnant woman is found with her hands in the till, she can be summarily dismissed just like anybody else would be. If her performance is below par, you can proceed confidently with your capability procedures, provided that you take account of any medical issues that may be affecting her ability to perform, e.g. mobility problems, high blood pressure, additional health and safety precautions if handling dangerous chemicals etc. And if her job role disappears because of a downturn in business or some other reason, as long as you do not select her for redundancy because she is pregnant, and you follow a scrupulously fair procedure, you should be fine.
However, in relation to redundancy, there are some extra factors to bear in mind if a woman is on maternity leave, and you should be prepared to go the extra mile because she is away from the workplace. In order to consult with her, you may need to make special arrangements to meet her off-site, and at a time that is convenient to her (when she is able to get childcare) rather than expecting her to come along to collective consultation meetings. When it comes to the redundancy selection process, you may have to refer to performance appraisals and other records, rather than inviting her to a selection interview. And if attendance records are one of your selection criteria, you must disregard any pregnancy-related absences that could adversely affect her score.
Most importantly, a woman whose job becomes redundant while she is on maternity leave must be offered any “suitable and appropriate” alternative role that may exist in your organisation; she does not need to apply for it and be judged alongside any other applicants, she gets first refusal.
If you don’t have a suitable and appropriate alternative position to offer her, then provided that her selection was nothing to do with being on maternity leave, then terminating her employment on the grounds of redundancy will not be unlawful.
If you are dealing with redundancies when one of your employees is pregnant or on maternity leave, it may be prudent to download this useful ACAS guide: “Managing Redundancy for pregnant employees or those on maternity leave” to help you get it right.
In summary, however, as long as you follow the correct procedures scrupulously and do not let your decisions be influenced by the fact that a woman is pregnant or on maternity leave, it is entirely possible to achieve a fair and lawful outcome.
I hope this gives you greater confidence to tackle some of those tricky HR issues without the unwarranted fear. However if your in doubt about what you can do and how to go about it, why not get in touch for an initial telephone consultation about any people management issues you may have.