Tuesday, March 29, 2016
Given the plethora of legislation, guidance documents and news stories concerning employment rights, it’s quite easy for employers to get bogged down.
However, if two reasonably straightforward documents are in place (and some time has been spent preparing them), an employer will have gone a considerable way towards protecting their position.
The first of these documents is the contract of employment, the second is the often neglected staff handbook. What’s the status of a staff handbook and why is it important?
As everyone knows, an employment contract can’t be varied unilaterally – an employer can’t, for example, reduce pay or other benefits if they amount to a term or condition of employment. That’s a general rule of contract law and it can be very difficult in practice to amend terms and conditions without the other person’s consent.
A staff handbook, on the other hand, can usually be varied at an employer’s discretion. The modern staff handbook has two functions. First of all, it sets out simple practical information about the way the workplace operates – billing procedures, security information and so on. Secondly, and more importantly, the staff handbook sets out employer policies and procedures. Getting these right is essential, for a number of reasons.
First of all, there are certain policies that are mandatory. You must, for example, provide an employee with a disciplinary procedure within 28 days of their commencing employment. The natural home for this document is the staff handbook.
Secondly, employers are obliged to maintain a health and safety statement flagging risks to health and safety in the workplace and setting out practical steps to avoid those risks.
However, it’s easy to forget that there are a number of other policies and procedures that should be drawn up and assembled in the staff handbook. These include a grievance procedure, an equality procedure, a bullying and harassment procedure, an IT/social media/email policy and various others.
An employer might legitimately ask : ” If I’m not obliged to keep these, why should I? ”
The answer is simple. Many of these procedures are designed to deal with contingencies. It’s essential to identify those contingencies and put policies in place to deal with them. By way of example:
Having a written grievance procedure is essential. If an employee is able to argue that they don’t know how to vindicate their rights in the workplace, they may look to external bodies (such as the courts or the statutory tribunal) for relief.
Nobody wants to be dragged into a hearing in circumstances where the existence of a grievance procedure would mean that the employee knew exactly how they could vindicate their rights.
A bullying and harassment policy is equally essential. Bullying and harassment has been described as a “growth area” in Irish employment law and it’s difficult to argue with that: the number of cases increases each year.
An employer should set out clear and mandatory rules regarding bullying and harassment – and bring these rules to every new employee’s attention. The policy has two benefits. First of all, it obviously makes it impossible for anyone to say that they didn’t understand the rules. Secondly, if it includes a complaints procedure, it serves as an early warning system for the employer. It’s essential that bullying complaints are dealt with quickly and effectively – and if you don’t have a mechanism that puts you on notice of a complaint, you may not be able to deal with it.
An equality policy is also essential. This should set out the employer’s rules and principles on equal treatment of employees. Among other things, if you are ever the subject of an equality claim, you will want to be able to demonstrate that you imposed clear principles on equality in the workplace and expected all of your staff to follow them.
An IT policy can be useful. Social media, the internet and email have revolutionised the Irish workplace. Much of the time these are tools that benefit a business but, inevitably, they are open to abuse. It’s essential that you have clear rules in place governing what is – and what isn’t – permitted on social media, for example. If the rules are clear, an employee is going to find it much more difficult to argue that they didn’t know what they were. Equally, you need to set out what’s not suitable for inclusion in company emails etc.
A good staff handbook will contain other policies and procedures peculiar to an individual workplace. A retail organisation, for example, should have a clear policy directed at security guards which sets out the limits of what they can do when they suspect shoplifting.