As an introduction to our new Employee Handbook series (coming in January 2019), Leeanne Armstrong discusses the 'Overview, Status and Purpose' of the employee handbook including:

• Why have an employee handbook?
• Getting the basics of the handbook right
• Should the employee handbook be contractual or non-contractual?
• Top tips for refreshing your handbook

Transcription

Lynsey: Morning, everyone. My name is Lynsey Rainey. I'm from Legal-Island and I'm here this morning with Leeanne Armstrong, Legal Director of Employment with TLT Solicitors based in Belfast. We're here live this morning to launch our 2019 series on the employee handbook. We're going to have a 30-minute discussion on what you can expect from the new feature, why you should have a handbook, how to get the basics right, the issue of contractual or non-contractual, key things from recent years, and Leeanne will also touch on some case law as we go through this morning.

So hopefully, we will get to answer some of your questions, which you can put to us through the live chat box. The chat box is on the top right-hand corner of the screen. As you're listening in, you can send in your questions and we'll ask Leeanne for her thoughts on those questions. And of course, everything will be kept anonymous. So we're just going to give things a few more moments while a few more listeners join us.

So we're doing this webinar as a one-off launch for the 2019 article series that Leeanne will be writing in association with Legal-Island in 2019. So each month, we will bring you one element of the employee handbook, and we will consider the important practical points for HR practitioners, as well as highlighting the key legal principles and the common pitfalls or issues that might arise.

So at the end of this webinar, you can complete the survey to let us know your thoughts on the new series. And so, for any new listeners, you're all very welcome. And don't forget you can ask questions in the chat box on the top right-hand corner of your screen.

So please do remember that we'll not necessarily get to answer all the questions that you have, as we're only here 30 minutes, but we will get to what we can. And then Leeanne and I will maybe answer some questions after the webinar.

So back to today, let's start firstly by welcoming Leeanne Armstrong from TLT. Good morning, Leeanne.

Leeanne: Good morning, Lynsey.

Lynsey: It's great to have you. And this is our first webinar together, so we're very excited. Leeanne, we're here today to talk a bit about our 2019 series on the employee handbook and we'll hope also to deal with a couple of the questions. But we'll just go straight into it, shall we? And we'll just talk a wee bit about the new feature for 2019.

New 2019 feature

Leeanne: Yes. So essentially, the basis of the feature, as you've said, is it's based around the essential elements of an employee handbook. And what we hope to do is, in each month, to focus on a different policy or procedure that you would expect to see in the employee handbook. And that will include also those policies that you're legally required to have, which we will cover later on the webinar. It aims to provide some practical guidance to HR teams and management on the key elements of policy and procedure, as well as those common pitfalls and the issues that HR managers sometimes find themselves faced with.

In addition, in each month, what we're hoping to do is also to include a relevant template or sample wording. That could be a template letter, for example, that you might use during a disciplinary procedure, or it could be a useful form of words that might be included in the policy or procedure itself.

But essentially, we're hoping that this feature will reach out to all businesses of all ages and sizes. So whether you're a start-up company and you haven't yet formulated your handbook or you're in the process of doing it, or you might be an established business undertaking and you're looking to review or refresh some of your policies and procedures, this feature should hopefully benefit you in some way.

Lynsey: So there'd be something here for everybody whether or not you've got a handbook and it’s established and you maybe just haven't had a look at it in a while. Maybe this is a good opportunity to try and do something with it and get it up to speed and up to date.

Leeanne: Absolutely. I mean, the handbook is certainly . . . it's as important as your contract of employment. And I think it can oftentimes be forgotten, particularly where you've already formulated it. And it might be sat on a dusty shelf somewhere and it comes out possibly during employee induction, and then beyond that, it's forgotten about.

But it really is, it's a living document. It's incredibly important. And, you know, for us as employment lawyers, when we're [inaudible 00:04:07], you know, the handbook and the policies and procedures that you operate your business on are so important and they're so relevant to the defensive proceedings. And so, it's extremely important to get it right.

Lynsey: Yeah, it's your first line of defence really. You know, as an HR practitioner, you need to remember that. Sometimes I think that it does get forgotten about, I've been guilty of it in the past. You do forget about it. And then it's just keeping it up to date and getting things where they need to be.

Leeanne: Yes, absolutely.

Lynsey: Okay. So we've probably touched on that a little bit, but let's have a wee chat about why it's important to have a handbook and what the purpose of it is.

Why is it important to have an employee handbook?

Leeanne: So, I mean, there are a number of reasons why an organisation want to have a handbook. It communicates what's expected of employees. But likewise, it also sets out for employees what they can expect from the employer, what their benefits and entitlements are, how processes and procedures are expected to run and be managed, but also it gives the company an opportunity to set out their mission statements, to include their values, the ethos of the business. Sometimes it's the only opportunity that you can really get. It's the first opportunity that you get when an employee joins the business, certainly, to set out your stall and let them know what you're about.

Another important reason for having an up-to-date handbook full of all of the relevant policies and procedures is to ensure consistent application of those policies and procedures across the business. You know, you may have a number of managers here going to be responsible for administering those policies and procedures, whether that be hearing a grievance or disciplinary, managing a sickness absence or performance issue. You want to make sure that there's consistency across the board for all of your employees, and the policy and procedure will keep everybody right.

In addition to that, you know, there's also compliance with legal requirements. So whilst it's not a legal requirement in itself to have a handbook, there are a number of policies that employers are legally required to have. And, you know, they would sit within the handbook itself. So a disciplinary procedure, grievance procedure, procedures on sickness, absence, pension, and health and safety policies, if you've more than five employees. So it's important to remember that as well.

And then, I suppose, looking at the gloomier side of things and where we tend to end up getting involved in the defensive claims itself . . . for any of our listeners who have maybe been involved in a tribunal case themselves in the past, it's not a very pleasant experience. But they'll be aware that, you know, where you may be faced with an allegation that an employee has harassed somebody or subjected them to discriminatory treatment. And if that is found to have happened, you know, the employer is vicariously liable for the act of its employees.

And, you know, in terms of defending those claims, we will often rely on something called the statutory defence. And essentially what the statute defence states is that an employer is going to demonstrate that they have done all and they've taken all reasonably practical steps to avoid harassment or such discriminatory behaviour occurring in the first place.

And essentially, if you pick that apart then, what you're looking at is what have you done? What messages are you disseminating in the workplace? What do your policies and procedures say to employees about acceptable forms of conduct in the workplace?

So, you know, there have been a number of cases where this issue has been looked at and explored in detail or in passing. And, you know, there was a recent case actually in the employment tribunal featured in the annual update last year in the case law review. It was a case against Swissport and a named employee Colin Morrow. And the 2017 decision looked at a number of issues, but it also looked at this issue of the statutory defence and the importance of training on policies and procedures and having them in the first place.

I mean, what the employment judge said in that case . . . if you have time to read the decision, there are some useful points to take away from it. He said it doesn't necessarily require an unreasonable or an artificial standard, you know, from employers. You're not expected to certainly sit down and spoon-feed your employees word by word, you know, every job title of your policy and procedure. But certainly, it was noted that, you know, you absolutely have to disseminate it to them.

And it was noted that online training is very, very prevalent these days and it's the norm. So, you know, you might not necessarily give out a written copy of your policy or procedure to all of your employees, but you might run some sort of online training on the contents of it. You might have a short video covering acceptable forms of conduct in the workplace.

And the case is really important in highlighting that it really isn't just the importance of the policies and procedures themselves, but the steps then that are taken by employers to bring them to life and to bring them to the attention of employees. It's as much about the practical implementation of the policy as having the policy itself.

And to that extent then, really when you look at the handbook and the procedure, the procedure itself is the foundation stone upon what you will build everything else. You'll build implementation, you'll build training, and it'll be an on-going progress throughout the life of your business and with your employees.

Lynsey: Okay, great. And I think that's the key, as a previous HR manager, you always find it hard to know exactly how to disseminate that to your employees. So in some organisations, they'll send them an email once they've started with a link, say, to a handbook . . . we talked about this the other day . . . with maybe a couple hundred pages, and that's not really good enough in my opinion. You need to actually give them a copy and point out the particular policies that are important. I mean, do you agree with that or . . .

Leeanne: Yeah, I mean, it's certainly important and, you know, certainly what that case pointed out was that it shouldn't be a terribly onerous task in the sense that if . . . You're employing adult individuals. You give them a copy of your policies and procedures and you tell them, you know, that this is how you expect them to conduct themselves or how the business will operate. There's certainly an expectation that that employees will have gone away and read those policies and procedures. And that in itself is, you know, the first checkbox exercise really.

There are various things you can do about it if you actually haven't given your employees the policy or procedure in the first place, or, in fact, if you don't have one. You know, there's not much you can do.

But yes, I agree with you that in terms of taking the extra step, and in terms of good practice and good management running of the business, it should go beyond that sort of initial step of just simply throwing somebody a policy or procedure.

You know, that case pointed to the fact that online training is the norm these days and sometimes it's a better way of disseminating messages. But, you know, it should also be the case that you're reviewing your policies and procedures regularly. You're delivering updates. If there's an issue or something that has crept up in the workplace that you think maybe would need to be addressed by some training or update, you should be doing that.

Really, taking those extra steps to show that you are tackling issues and that you're on top of your policies and procedures and it's not something really that you've simply covered off in induction, ticked it off in a personnel file, and then put it away and hoped for the best really.

Lynsey: Okay, great. I'm just going to deal with a couple of questions here, more for me than you. So the slides will not be available unless you're subscriber to the Legal-Island Hub. If you are subscribed to the Legal-Island Hub, you'll be able to listen back to the webinar and get the full transcript over the next couple of weeks.

Could you just remind us, Leeanne, of the case title? Was it Houston v Swissport & Colin Morrow? Is that correct?

Leeanne: Yes. The claimant, his surname was Houston, and the party names, the first respondent was Swissport and the second named respondent was Colin Morrow.

Getting the basics right

Lynsey: Okay, great. So moving on then, getting the basics right.

Leeanne: Yes. So in terms of drafting the policies, what they should be is clear, user-friendly, and easy to understand. So, you know, you talked about the dusty, old 200-page handbook. How easy is that for your employees to access, to read, to understand? And that's both for the benefit of employees who might need to utilise the policy, but also for your managers who are also needing to rely on the policy to make sure that they are getting the procedure right. So it's really important that the language is very clear and user friendly for everyone.

You need to cover off who the handbook is going to apply to you. So, you know, is it employees only? Or if you're an organisation that has an agency for contingent, you know, is the policy going to extend out to them? And how are you ensuring they have sight of the handbook and they're aware of the policies and procedures within it?

It should be easily accessible to employees. So whether you have it online on the intranet, whether you give everybody a hard copy and they may well put it away in the desk and not look it for a long time, but, you know, at the end of the day, as the employer, it is your responsibility.

If you've put the time and the effort into putting this document together, you know, take the time and effort to make sure that it's easily accessible for your employees, that they can put their hand on it when they want, and that you can't be sort of accused later down the line somebody not knowing.

You know what? I think it often crops up in disciplinary processes. "Well, I didn't realise if I had done that, that constituted misconduct". Well, you know, make sure that that can be a line of defence from your employees.

Training is key, and that is both to managers and employees. You know, certainly for your employees, the starting point will always be the induction process. And that's usually when you will first introduce your employees to the policies and procedures within the business.

But as I said, as well as the handbook itself being a living document and something that should be constantly under review, you should also be continually reminding your employees in some way, shape, or form of the key messages within those policies and procedures that you want your employees to adhere to.

And also advising your managers on how they properly carry out these processes and procedures. You know, have they properly been trained on how to run a disciplinary or a grievance process? Do they understand what is required of them within the practice and procedure, the various stages within it? So all of that is really important.

Lynsey: And even I suppose that the line managers . . . I know we keep talking about the dusty copy, but that they are using the most up-to-date version because obviously you don't want two line managers approaching something in two different ways.

Leeanne: Absolutely not. So, you know, if you're ever publicising updates, it's very key to make sure its property rolled out to the business and that everybody is aware of their responsibilities and duties in terms of the implementation of each policy and procedure. Again, you know, like having the handbook in the first place, there's no point taking the time and effort to update it if you're not going to disseminate the update and make people aware of where the changes are.

I mean, the handbook really should be a living document. You know, as we said, these updates should be publicised. And you might be updating your handbook for a number of reasons. It might be because there's a legal change in the law, there's a legal update that requires an amendment to policies. It could be that you're trying to address a growing trend or key issue within the business, and that's why you're looking at updating.

I mean, so for example, this year we've had GDPR. A lot of people have been very busy reviewing their Data Protection Policies. And in recent years, we've had shared parental leave. I mean, I know a lot of employers may not have actually, you know, taken the time to actually implement the shared parental leave policy, and certainly then that's difficult for HR managers because then if a query does arise about rates and entitlements, there's just frantic scuffle in the background to find out, you know, what are their entitlements? What's the process? You know, how do I calculate the pay? What are there differences in paternity pay?

You know, dealing with questions like enhancements, if you have the policy, you're giving the business time to sit down and think about what your shared parental leave policies and practices are going to be in the business. Take the time to put that into a document, a living document. Train the managers on it so the people are prepared to deal with these issues as they arise.

Flexible working is another example. You know, there have been changes there in recent years in terms of eligibility criteria.

Lynsey: Which is very confusing for line managers who are getting maybe the first instance application, you know, from the employee. So it's the message then that they are given.

So, I mean, we talked about it before, but publicising that change should come from HR, obviously, but from the top down to make sure that everybody is being covered and getting the information of that change so that they then know how to handle that, for instance, flexible working request coming.

Leeanne: Absolutely. And it's so key to make sure that everybody, you know, understands their roles and responsibilities. So HR will usually be responsible with sort of the heads within the business of getting this policy together, fine-tuning it. But then they will usually have that known to their line managers, who will then be charged with not only, you know, getting to grips with their responsibilities, but then also training and disseminating the information to their employees and staff members in the front line.

So everybody needs to understand their roles and responsibilities and, you know, the implementation of a new policy and procedure, and particularly where there are changes.

I mean, what you absolutely wouldn't want is for HR to be sat in the office knowing that there were very important changes to flexible working eligibility a few years ago, but your line manager on the shop floor not being aware of it. Somebody coming to him to make an application and you say, "Actually, you're not entitled to that. You know, you're not entitled to make an application". And the mistake has been made.

HR and people at the top of the tree are fully aware of what the position is, but because that information hasn't been properly disseminated down, your policy hasn't been updated, there's a mistake somewhere, it can end up being very costly in the end if you end up in a tribunal.

Even in terms of growing trends and key issues, we look at social media. Social media has become such . . . you know, it's a great total in some ways, but it also has become an incredible burden for employers over the last few years. And we've seen a number of cases and looking at, you know, the fairness of dismissals related to misuse of social media and whether or not policies and procedures were properly implemented in the workplace in order to be able to support actions taken by the employer in relation to misuse.

So some case law examples people might be aware of. There was a case of Walters against Asda a few years back where the employee had decided to write on social media that he would . . . as much as he loved the customers, he would also be happier if he could hit them over the head with a pickaxe. Not really ideal, so not a great day for HR. They dismissed him, but the tribunal actually found his dismissal was unfair and it was wrongful.

And what they had said there was the comments constituted misconduct under the policies and procedures rather than gross misconduct. It would be, you know, something where policies and procedures were not carefully considered and updated to reflect the severity of offences.

What they said was in terms of the employer's internet policy itself, that at the time of the disciplinary process, words that had been drafted hadn't yet been publicised. So at the point of the appeal, when the dismissal had already happened, the policy was right there for everybody, but at the point the decision to dismiss was taken, that policy hadn't been disseminated.

So, again, very, very important and something that came up quite a bit in these social media cases around what do employees really understand what their responsibilities are? What conduct is acceptable, when they can and can't use social media, what they can and can't say? But that's why the policy and procedure is so key.

I mean, then there was another case, a local case a few years back against TeleTech UK, in which there were vulgar comments about an employee on Facebook. And this is on the flip side of that, demonstrating the benefit of having a policy and procedure that's sort of well drafted and covers all bases.

And in that instance, what the tribunal had found was, although the comments didn't necessarily destroy any sort of reputation of the business itself, the harassment of a colleague was very clearly stated in the policy to be a gross misconduct offence. You know, this action by the employee have been in breach of that policy and it was therefore sufficient to justify the gross misconduct summary dismissal. So a good case law example there of a policy and procedure being supportive of employers in making key decisions.

Lynsey: Can you just repeat that case again for the listeners?

Leeanne: Yes, sorry. So that's Teggart v TeleTech UK.

Contractual v Non-contractual

Lynsey: Okay, great. Okay, so moving on then to the area which always confuses me, should the handbook be contractual or non-contractual? I know we've talked about this at length and we only maybe have about five minutes to kind of cover this.

Leeanne: Yeah, and certainly this is a difficult and challenging topic and one that the January feature will cover this in more detail. And I appreciate that this can be . . . you know, it can be very sort of challenging for HR practitioners and for lawyers alike when the question comes up as to whether or not a policy or a procedure is potentially deemed contractual.

So, I mean, as a starting point in terms of the responsibility of keeping your handbook under review and updating it if it's necessary, it's important to understand how you can do this. And so, the first thing you want to do is consider whether or not your handbook, if you currently have one, is contractual or non-contractual.

The key point to note here is your handbook and the policies and procedures within it are contractual, it will require consultation with the employees with the view to obtaining their consent to the amendment. And that is just going back to basic common law contract principles around the ability to make changes to someone's contract.

What that does then effectively, if you think about your policies and procedures and all that we've discussed about it being a living document, it can be very limiting to your business and really limit the flexibility you would have to make those amendments and changes if you have to continually go back to employees to seek their consent.

Lynsey: And that will be through consultation. That's what you are referring to here?

Leeanne: Yes, it would be. Yes. And I mean, sometimes people will have references in the contract of employment to policies and procedures, but they'll state them as being non-contractual. You know, again, there could be the potential inference there that someone will argue that it's a deemed contractual provision. So, you know, best practice is always to have your policies and procedures contained separately and neatly in an employee handbook stated to be very clearly non-contractual. And that usually is the best starting point in terms of dealing with this issue.

Lynsey: Okay. So, are there any policies and procedures for which elements of them form part of the contract of employment?

Leeanne: Yeah. I mean, there can be lots of sort of tricky situations that you might come up with. So, you know, you might have . . . well, you will have because, you know, there's a legal requirement with a basic statement of contract to cover off any of the employment particulars, your position on sick pay. So you'll usually cover off reporting procedures. Are sick pay entitlements statutory or does it go beyond that? Is there an enhanced sick pay entitlement?

So you might have that within your contract of employment, but then you'll have a separate sickness absence policy and procedure, which is much more detailed. It'll cover off how you manage absence. It might even cover off issues where potentially you might restrict someone's ability to be able to claim company sick pay in certain circumstances. You might state that to be non-contractual.

But I think, you know, if there was ever a review of policies and procedures, you have to be mindful of the fact that there are elements within that that could be deemed as contractual and apt for contractual incorporation into the document, and particularly those provisions which are already expressly stated in the statements. So if you're giving company sick pay, that's within the contract of employment. So you can't suddenly decide in the review of a policy and procedure that you might decide that you're going to reduce someone's entitlement to company sick pay, because that would require consultation with employees.

Lynsey: There's a question that has actually come in which is quite relevant for this point. And the question is they're currently looking at tightening up their triggers relating to intermittent sickness absence levels. "The initial trigger we use is three episodes in a rolling six-month period, and it's detailed in the sickness absence policy, which is contractual. Can we tighten this up by communicating to employees the revised triggers and giving notice without having to go through a consultation process?" So suppose that's putting that into practice a wee bit there.

Leeanne: I mean, obviously a lot of these situations are very case sensitive and fact specific. But the first thing that I've pointed out here is that you mentioned that the policy itself is contractual, so in that instance . . . and, you know, particularly where you're talking about absence triggers that might potentially trigger a process where someone could be disciplined, that is going to potentially have a detrimental impact on the employee.

So on those two grounds alone, one, the fact that it's a contractual document and, two, the fact that the change that you're proposing to make is going to have an impact, I would suggest that consultation is very important in that situation. And you really want to be seeking to try and get the support of your employees and obtain their consent.

Of course, that sometimes might not always be possible, and there have been cases in the past where employers then have decided to take the decision to go ahead and unilaterally make the change anyway. And, you know, there was an interesting case that might actually be useful to that listener. A Court of Appeal decision in the case of the Department for Transport against Sparks, which dealt with some very similar issues there around changes to absence management triggers on the question of whether the policy was contractual and the issue of what steps needed to be taken, particularly where the change was going to be detrimental to an employee.

Lynsey: Okay, just give that listener that title of that case again if you have it there. Do you have it?

Leeanne: Sorry, I'm rattling on.

Lynsey: No, you're okay.

Leeanne: It's a Court of Appeal decision and the case is Department for Transport v Sparks. And we can make sure that in the transcript that the citations.

Lynsey: Yeah. We put all the cases in, so don't worry, but that's just in case they need to get to that quite quickly.

Leeanne: But, I mean, it is a very relevant case, I think, to that listener's particular question.

Lynsey: It would be a good read then. Okay, so we are actually running out of time. We've got one minute left. So maybe just touch on what the listeners can expect in the January, February time from our first couple of articles.

Leeanne: Yes, January, February, so the first article will be an overview of The Management of the Employee Handbook. And as I said, we'll cover in some more detail those sort of trickier issues around the question of contractual versus non-contractual and what is apt for contractual corporation, because it can be tricky.

But essentially, that first article will basically cover everything from introduction, amendment, and everything in between around the handbook. And then we'll move into disciplinary and grievance procedure. We'll cover sickness absence later in the year, capability, equal opportunities, anti-harassment and bullying, and flexible working, maternity, etc., But we'd also be really interested, Lynsey, to know from the listeners if there are any other policies or procedures that they would . . .

Lynsey: Yeah, absolutely.

5 top tips for updating employee handbooks

1. Check the contractual status of your handbook - This will determine the steps you need to take to bring about any changes or introduce new policies/procedures.
2. Consider what it is you plan to change or introduce and the likely impact of it? - Will it be detrimental to employees? Taking the time to think through the proposal and the likely impact will provide the business with valuable time to consider how it proposes to deal with the detrimental impact and put a strategy in place.
3. Consider why you are proposing the amendment or introduction of a new policy/policies - Is it on the account of a legal development or does it arise from changing business needs or to address recent industry trends or concerns?
4. Consider a process of engagement/consultation with employees - Allowing your workforce to have an opportunity to input on proposed changes/new policies, even where you believe there is no requirement to do so, will foster good relations with employees and hopefully generate support for the business aims/objectives under any new or amended policy.
5. Provide updates and training on new or amended policies - Remember that having a carefully drafted policy is just the first step but employers must take steps to ensure the contents are disseminated down through the organisation, to management and to the wider workforce.

Listeners, you can do that through the survey at the end of the webinar. So if you take some time to fill that in, that just gives Leeanne and I a bit of direction for 2019, and absolutely we can target what you want to hear. And we'll give you templates, sample wording, some top tips, etc. We have some top tips here, but we just don't have time to cover them, so we'll add those into the transcript at a later stage.

So just to finish then, we just want to thank Leeanne. We're out of time now. Leanne's contact details are on the screen there. You can see them. And you can contact her and her team of TLT for further information on their services.

So tomorrow, we'll send a link right to the subscribers of the recording of the webinar. And there'll be a full transcript available in the next couple of weeks. So keep an eye out for news on the webinar series for next year.

Very finally, thank you very much, Leeanne, for sharing your experience with us. And thank you to you all for listening. And Leanne and I wish you all a very Merry Christmas and a Happy New Year. Thank you.

Leeanne: Yes, Merry Christmas. Thank you.

Lynsey: Thank you.