Employment Relations
The “life cycle” of an employee (in a page)
Recruitment and appointment
- All applicants for posts are protected by the discrimination legislation, irrespective of whether they are offered the job. It is currently unlawful to treat applicants less favourably on grounds of their:
- race (which means colour, race, nationality, ethnic or national origin)
- sex (which extends to gender reassignment)
- disability (which means a physical or mental impairment which has a substantial, adverse and long term effect on the ability to carry out normal day to day activities).
- Sexual orientation
- Religion or belief.
- Age
- Please be aware that during the recruitment process you may need to give priority to existing employees who develop disabilities that mean they cannot remain in their current jobs.
- All unsuccessful candidate can ask to see their interview notes. To avoid any problems, make sure you undertake selection training, always scrutinise your reasons for your decision and imagine the candidate reading your notes in 6 months’ time.
- Part-time employees and employees on fixed terms as a general rule should have entitlements which ‘mirror’ those of the comparable full-time of permanent post and should not be treated less favourably simply because they are on a fixed term of part-time contract. Aim to treat these staff in exactly the same way as other employees – HR will provide guidance about if and when it is safe to apply different procedure to these staff.
Managing the working relationship
- All the anti-discrimination legislation applies during employment. Discrimination can be alleged without the employer intending to discriminate and without overtly discriminatory language being used – it can be inferred from considering all the facts of a particular case. Discrimination claims can be distressing for everyone involved. In many cases, potential discrimination claims can be avoided by taking care to explain why a particular approach is or is not being taken and by responding quickly when an employee questions the reason for the treatment s/he has received.
- Employers are under a duty to maintain a relationship of ‘trust and confidence’ with their employees. One aspect of this duty is that performance issues need to be addressed promptly as and when they arise, including where the employee is working under a fixed term contract. Try not to allow concerns to build up – it is much better to raise problems as and when they arise rather than allowing them to multiply. If problems persist or become more serious, consult HR before indicating to the employee the formal disciplinary action may be appropriate. Refer to the Toolkits produced by Employment Relations for practical advice
- If confrontation between colleagues becomes an issue, recognise what is going on and try to tackle it early. In the most serious cases, HR may be able to help by involving the services of an impartial mediator.
- Keeping employees informed is good practice. There are statutory obligations to inform and consult staff at School-wide level (and this process is managed centrally). Trade unions may need to be consulted about changes affecting 20 or more employees at the same time. On an individual level, employees should be formally consulted about proposed changes to working arrangements, and about impending redundancy.
- Pay particular attention to the training and development needs of staff on fixed term contracts and ensure that these staff know what information and Advice is available to them at various career stages.
- Keeping staff on fixed term contracts or research staff on external funding informed about the likelihood of renewal is good practice and helps to prevent problems arising from the ending of employment.
Ending of employment
- Managing the ending of employment is often the trickiest stage and early referral to Employment Relations is always advisable especially where premature termination may be in issue.
- Employees need one year’s service to claim unfair dismissal, unless the reason for the dismissal is one of a small group of reasons which are ‘automatically unfair’ (for example pregnancy or ‘whistleblowing’)
- Employees with less than one year’s service have the right to bring discrimination claims.
- Statutory redundancy payments are triggered after two years’ service, but School payments may be payable after six months’ service. Staff on fixed term contracts where the project is coming to an end and research staff whose funding comes to an end may be entitled to redundancy payments.
- Employees are entitled to notice or pay in lieu of notice unless their conduct amounts to gross misconduct.
Ending of employment (in a page)
Unfair Dismissal
- To manage the ending of employment properly there are some key points to bear in mind:
- The ending of a fixed term contract is a dismissal in employment law. The employee may still be able to claim unfair dismissal even if the reason s/he is leaving the School is the ending of the contract (see below for more tips on how to manage contract expiry).
- Research staff are often on permanent contracts so if funding comes to an end you will need to conduct appropriate consultation
- If an employee considers s/he has no option but to resign because of something the employer has done or failed to do, this can amount to a constructive dismissal. If an employee resigns and raises concerns, let HR know as soon as possible.
- In most cases to claim unfair dismissal employees need one year’s continuous service with the School (and this can include working under consecutive contracts). But in some cases, where the reason for dismissal is one of the automatically unfair reasons for dismissal, no qualifying period is required. These reasons are centred around protecting employees for exercising various statutory rights, for example the right to take maternity/paternity leave, the right to belong to a trade union or the right to ‘whistleblow’. There is no qualifying period of employment if the dismissal is discriminatory (see discrimination in a page).
- What steps can help ensure that a dismissal is fair?
- The employer needs to have a fair reason for dismissal. There are 5 potentially fair reasons for dismissal:
- redundancy
- the employee’s conduct
- the employee is unable to the do the job (for example through ill health)
- it has become illegal to employ that person (for example if work permit rules change)
- a ‘catch-all’ category for ‘some other substantial reason’ which is fair in all the circumstances (for example if the role is still needed but the way in which the work has to be done needs to change and the employee will not agree to the change.
- As well as having a fair reason, the employer must follow a fair procedure. The key elements are to consider all the facts, ensure the employee understands why dismissal is in issue (do this in writing) and allow the employee the opportunity to put his or her views at a face to face meeting before reaching a final decision. In addition, the general law now says that employees should have the opportunity to appeal against a decision to dismiss them. Strictly, this right of appeal applies even where the employment is coming to an end because of the expiry of a fixed term contract – in this situation, HR will provide advice on a case by case basis.
Redundancy
- A redundancy situation arises where the School no longer needs someone to do work of the type which the employee has been doing.
- External funding comes to an end
- An employee working as a sabbatical or maternity cover will not be redundant when the permanent postholder returns. But a redundancy situation will arise where a particular course/department is to be discontinued/closed, or where the funding or research grant for a particular project expires.
- A fair procedure needs to be followed including consultation and consideration of alternative employment.
Staff Working on fixed term contacts
- The ending of fixed term lectureship contracts should be discussed with HR well in advance as soon as it is clear the post cannot be made permanent and no alternative career path is available.
- Research staff may need support to find alternative employment and need to be clear about the options available.
- Do not allow fixed term contract research staff simply to ‘disappear’ at the end of the contract, unless there is clear evidence that the employee is happily moving to a new employment or another alternative.
See Guidance on School use of fixed-term contracts
Discrimination
See below.
Discrimination in employment (in a page)
Types of discrimination
For all types of discrimination (see below), with the exception of disability discrimination, unlawful discrimination can be any of the following:-
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Direct discrimination. An employee shows that s/he has been treated less favourably on the ground of his/her sex, race etc than someone of the other sex or a difference race etc either has been or would be treated by the School. The comparison is with either a real or a hypothetical person. Direct discrimination can work in very subtle ways: it can stem from a perception held by the employee that s/he is being treated less favourably from which it can be inferred that the only explanation for the treatment is the discriminatory factor. There is no defence of justification.
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Indirect discrimination. An employee shows that the School has applied a ‘requirement’ condition ‘provision’ ‘criterion’ or ‘practice’ to the employee which has a disproportionate adverse effect on people of one sex or race and which cannot be justified. For example, a requirement to work in the evenings may disproportionately affect female employees, because (according to national level statistics) childcare is provided in the main by women and working evenings may conflict with childcare responsibilities. If the employer can show justification for example that it is impossible to organise matters in another way (for example that the work must be carried out in the evening) then indirect discrimination will not have occurred.
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Harassment. An employee shows that because of his/her race, sexual orientation etc s/he is subject to conduct which ‘violates’ his/her dignity or which is ‘intimidating’ ‘hostile’ ‘degrading’ ‘humiliating’ or ‘offensive’ This will catch (for example) comments and remarks.
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Victimisation. An employee shows that s/he is being treated less favourably because of having previously raised an allegation of discrimination, either in legal proceedings or through the employer’s internal procedures, or having assisted another person with bringing an allegation of discrimination against employers. Note that ‘victimisation’ has a very specific and quite technical meaning.
Disability discrimination is structured slightly differently. The employer should not treat an employee with a disability less favourably because s/he is disabled, or harass him/her for this reason. In addition, the employer is under an obligation to make ‘reasonable’ adjustments to accommodate the employee. ‘Reasonable adjustments’ could include:
- Adapting the physical working environment, or the times and/or place when the work is done;
- Arranging a transfer to alternative employment
Toolkits on managing disability and capability health are available on request from Employment Relations.
How are discrimination claims brought?
The employee must apply to an Employment Tribunal, there is no service requirement before an individual can submit a claim. Before doing this, the employee is required to set out the allegation of discrimination to the employer in writing and allow the employer the opportunity to respond. Time limits are tight (between 3 and 6 months) but even so the employee may be able to rely on incidents stretching back over many months and even years.
Claims are usually brought against the employer (The School) but it is possible for employees to also bring claims against individual employees of the employer as well). The employer may found liable for the actions of those individual employees, who may also be at risk of disciplinary action.
If successful, there is no upper limit on the amount of compensation which can be awarded. Relevant factors in assessing compensation will be how long the employee takes to get another job and the effects of the discrimination on the employee’s health and well-being.
How can the risks of a discrimination claims be minimised day to day?
- Always ensure that you can explain clearly and without reference to factors which are themselves discriminatory the reasons for any steps taken.
- Be willing to spend time with an employee discussing the reasons for the action taken.
- If an employee hints at the possibility of discrimination, ask HR for guidance
Unlawful discrimination
- Race (which means colour, race, nationality or national origin)
- Sex (which extends to gender reassignment)
- Disability (which means a physical or mental impairment which as a substantial, adverse and long term effect on the ability to carry out normal day to day activities)
- Sexual orientation
- Religion or belief
- Age
Toolkits
Employment Relations has produced a range of toolkits to support managers. Those currently available are:
Other toolkits planned for later this year are:
- Managing Grievances
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Managing Review Periods, and
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Managing Employment Changes.
For further information and advice contact
Gail Keeley, Head of Employment Relations and Advisor on Staff Disabilities
Tel: 020 7955 6672
Email: g.keeley@lse.ac.uk
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