Some years ago, I had a client in manufacturing who operated an extremely stringent sickness absence policy. There was no company sick pay and the sickness absence policy provided for just 4 incidences of sickness absence before an employee would lose their job for unacceptable attendance. Employment law does not prevent an employer from having a sickness absence policy along those lines, and this particular employer had good business reasons for doing so.
However, when I came to advise following the dismissal of an employee in accordance with the sickness absence policy, it transpired after much probing and coaxing that the policy was not being operated consistently by line managers. Some employees had higher sickness absence levels than the one in question with no apparent explanation for the different treatment, other than the line manager's judgment that some were "good blokes" and shouldn’t be penalised for being ill, whereas others should feel the full force of the sickness absence policy because they were out of favour for other unconnected reasons. The employee was later found by an employment tribunal to have been unfairly dismissed (and needless to say we retrained the managers in question).
Good record keeping can help defend an unfair dismissal claim
We occasionally come across a client such as this, who seems unable or unwilling to give us all the information we need to advise them correctly. HR advisers are not alone in experiencing this issue; accountants and solicitors often tell a similar tale.
There are several reasons why a client may not supply their adviser with all relevant information:
1. They have not appreciated its potential relevance.
It is the job of the adviser to ask the right questions, explain what is required and why it is relevant. If in doubt about whether information is relevant, the client should err on the side of providing more information than less. A skilled professional will be able to distinguish quickly between relevant and irrelevant material given to them by their client.
2. They do not have the information available.
Take my example of sickness absence warnings and dismissals. Many employers will maintain a paper file for their individual employees, on which any warnings would (hopefully) be recorded. If an employee leaves or is dismissed, the file may be archived. The reason for dismissal may then fade into the mists of time, leaving the employer without a complete record when someone commits a similar offence and asking themselves "what did we do last time this happened?"
Employers are generally very good at tracking things like annual leave and pay rises, but an organisation's disciplinary and dismissal profile may not have been recorded centrally (click here to see how we can improve your record keeping!), leaving the employer vulnerable to accusations of inconsistency, as in my example above, and increasing their risk of ending up in the employment tribunal.
3. There are pieces of information they don't want to give their adviser.
This is more common than one might imagine and happens for 2 reasons. In some cases, they are embarrassed by the contents of an email or document, or at the way something has been handled. In others, they think by controlling the release of information to their adviser, they can somehow influence the outcome of the situation they face. In both cases, because the adviser is not in possession of all of the facts, it could have serious repercussions for the client in an employment tribunal claim. Look at it this way - you wouldn't visit a doctor and only tell them half of your symptoms, you’d want them to know anything and everything that could be relevant so their diagnosis would be accurate. Nor would you attend a dental check-up and not tell the dentist about a toothache, for fear of criticism of your dental hygiene practices!
Tell us everything, warts and all!
The same is true for HR and other professional advisers. We are on your side and there is honestly nothing that would shock or surprise us about how businesses operate. Our aim is to get the best possible outcome for you (rather than judge or criticise the way you run your business) and we can only do that if we know about areas of potential weakness. When we know these, we can deal with them. If we don't know them, we cannot protect you from them.
So please, if you are taking professional advice, to get the best possible outcome for your business, tell us everything - warts and all.
If you have an HR issue and you are ready to tell all(!), contact Dawn or Mark by completing the Contact form to the right or calling us on 01604 763494.