As well as providing legal representation and advice on employment law, we are often asked to assist organisations maximise employee performance. One of the topics we get asked about most is how to carry out a worthwhile performance appraisal.

At the outset, it is important to note that an appraisal by itself is not performance management. Performance management should be a day to day matter. Employees should not be surprised by comments from managers as part of their appraisal. If there are issues that the manager is not happy with, the employee should be aware of these before the formal appraisal meeting takes place. Similarly, if something the employee is doing is appreciated and adding value, the employee should be made aware of this on an informal basis and not just at the annual appraisal.

While performance management and development of people should be a day to day and week by week focus for leaders and managers, the performance appraisal process is an opportunity to have a more formal review of performance and to take a note of targets for the future.

Broadly speaking, performance appraisals should do two things:-

1. Review performance / progress from the date of the last appraisal
2. Agree targets for the future for review at the next appraisal

One of the most common questions around this issue is “do you have a form for a performance appraisal?” While appraisal forms can be useful, it should be noted that the form of the appraisal document is less important than ensuring that the process involves two-way communication between the appraiser and appraisee where the employee feels that they have been listened to and supported and any necessary interventions are identified and plans put in place. As long as that remains the focus, the appraisal process should be a positive experience for all concerned irrespective of what forms are filled in as part of the process.

Before the appraisal meeting

If there has been a prior appraisal, employees should be provided with a copy of the report from the last appraisal and asked to come to the meeting prepared to discuss what progress they feel has been made. Employees should also have the opportunity to comment on the performance of their department and to make suggestions for how things could be improved in the organisation as a whole.

The appraiser should take some time to reflect on his/her assessment of the employee’s performance, having considered the employee’s comments. Where possible, specific examples should be identified as they can help to achieve agreement on a matter that may otherwise prove difficult to find agreement on.

The appraisal meeting

The appraiser and appraisee should discuss the employees’ views on their performance and the appraiser should provide his or her own observations. Any objectives set in the past that have been met by the employee should be formally recognised and the reasons for any targets not met should be explored. Remember however that performance management is an ongoing process and the employee should already be aware if there are matters relating to their performance that need work and so nothing should come as a surprise to an employee in an appraisal meeting.

Where possible, agreement should be reached on targets and objectives going forward, to be kept under constant review and to be formally reviewed in the next appraisal process. Where possible, make aims / targets capable of objective assessment.

Any comments or suggestions that the employee has made regarding how the department or organisation is performing or could be improved should be discussed and, if appropriate, implemented.

After the appraisal meeting

It is important to ensure that any actions that are identified as required during the appraisal process are implemented as soon as possible. Communication should remain open and the appraiser should try to assist the employee in the weeks and months following the appraisal to meet the targets set. If the employee has made comments or suggestions that could benefit the whole department or organisation, consider implementing these.

A leader or manager conducting a performance appraisal should always ensure that the employee is encouraged to actively engage in the process for their own benefit and the benefit of the organisation. The employee should be given every opportunity to develop their skills and potential. It is also important that employees understand the important part that their role in the organisation has to play to the overall success of the organisation. By ensuring that these matters are at the heart of the appraisal process, an employer can help to make the process a positive one for all involved.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

“What are the dangers of the office Christmas party?”

With just a few weeks of work left until Christmas, attention is turning to the Christmas party in workplaces up and down the country. Without wanting to dampen the party mood, it would be useful to take a few minutes to consider some matters that may cause an employer difficulty and think about steps to mitigate against any risks.

While the office Christmas party has the potential to be a great time of fun and enjoying each other’s company, it can also be fraught with difficulty for employers. When alcohol is involved, people sometimes behave in ways that they would never behave in the workplace. The Christmas party is an extension of the workplace and an employer can be liable for the actions of employees in work Christmas parties.

Employees should be reminded in advance of the party of the organisation’s policies on equal opportunities and anti-harassment. If alcohol is permitted, employees should be encouraged to drink in moderation. A wise employer will remind employees that any actions that could be deemed to be aggressive or threatening or may constitute harassment of another employee will be dealt with immediately in accordance with the disciplinary procedure and may warrant dismissal.

Employers who take all reasonable steps to ensure that employees are protected from harassment any Tribunal claim brought by an employee who feels that they have been the victim of harassment so taking some time and reminding employees of the relevant policies and their specific applicability to the Christmas party would be a good investment of a few minutes of your time. Employees should also be advised that they can be held personally liable for acts of harassment against other members of staff.

So, from an employment law perspective, the message ahead of the Christmas party is simple – have a good time but make sure you treat everyone with the same dignity and respect that you show from 9am to 5pm Monday to Friday.

Have a great Christmas!

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

What should I do if an employee refuses to sign a contract of employment?

There is an obligation on employers to provide employees with a written statement of main terms of employment within two months of the employee starting to work for the employer. This written statement of main terms must include information such as rate of pay, holiday entitlement, hours of work and notice entitlement amongst various other things.

While the obligation is to provide a written statement of main terms within two months of the employee commencing employment, it is advisable to provide a written contract to a prospective employee with the offer of employment. This way an employer can make the offer of employment conditional upon acceptance of the written terms provided before employment commences. If the prospective employee has any difficulty with the terms of the contract, these can be discussed and can hopefully be resolved. If however the individual will not agree to the terms of employment offered, then the offer can simply be withdrawn.

The position is more difficult when it comes to existing employees. Many employers fail to provide a written statement of main terms to employees. We have recently advised several employers who had several employees who had worked with the employer for a long time and nothing had ever been written down. Sometimes when an employer attempts to rectify matters by providing employees with written contracts as required by law, this is met with some suspicion on the part of the employees. Employees can wonder why they are being asked to sign a contract after a long period of time with nothing in writing and this can sometimes lead to a fear that the employer is trying to adversely affect the terms of employment or that the employer may be about to embark upon a redundancy or disciplinary exercise.

Where an employer (rightly) decides to issue a written statement of main terms of employment for the first time to existing employees, the employer should take the time to explain that a contract of employment is already in place, albeit that it is not written down. The purpose of providing a written contract is so that the existing terms of employment are written down so as to comply with the law and to give clarity to both sides. Employers should take the time to discuss any queries or concerns that employees have about the written contract. Usually these queries can be resolved to the satisfaction of the employee.

Sometimes, no matter how well the employer explains the situation, certain employees will simply refuse to sign a copy of their contract. Where employees refuse to sign, employers should explore with them the reasons for this. If there is a particular issue, the parties should try to resolve this. Some employees wrongly believe that if they do not sign the contract, they cannot be bound by its terms and so will simply refuse to sign as a matter of general principle. In these situations, employers should clearly communicate that the terms as written down are the terms of employment under which the employee is engaged. If the employee continues to perform their duties and receive the benefits they are entitled to under the contract – such as pay and holidays – then the employer should notify the employee that the employer deems that the terms of employment have been accepted.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

Employees have certain rights during disciplinary and grievance processes.  One of these rights is that the employee may bring someone along to the disciplinary or grievance meeting to accompany them. Often the identity of the companion and the companion’s role in the process are causes of confusion for employers in dealing with these matters.

It is important at the outset to distinguish between investigatory and disciplinary meetings. A meeting to investigate an incident is simply a fact-finding exercise prior to formally putting allegations to the employee in the context of a disciplinary hearing. There is no right for employees to be accompanied at investigatory meetings unless an employer’s internal policies provide for accompaniment at this stage.

Recent case law has established that where a person’s professional career is at risk, for instance in the case of serious misconduct by a health professional or teacher, it is appropriate for the employee to be afforded the right to legal representation in internal disciplinary hearings. However, in the vast majority of cases, the right to be accompanied at disciplinary and grievance meetings is limited to accompaniment by a work colleague or trade union representative. Employers should realise that the right to accompaniment by a trade union representative applies irrespective of whether or not the employer recognises and negotiates with a trade union regarding its employee relations issues.

A request for accompaniment may be turned down if the request is unreasonable. For instance, it may be unreasonable for an employee to request to be accompanied by a work colleague who is a key witness to some of the allegations in the case as this may prejudice the hearing. It is important for employers to ensure that employees advise them in advance of the identity of the person that the employee would like to bring to the meeting as their companion.

Employers are at liberty to extend the right of accompaniment beyond that granted by law. For instance, sometimes employees will request to be accompanied by a friend or family member from outside the organisation. Employers should consider these requests and act reasonably on a case by case basis in deciding upon whether to allow accompaniment by a friend or family member.

Having considered the issue of who may accompany an employee at a disciplinary or grievance hearing, it is important to understand the role that the companion can play in the meeting. Employers can sometimes mistakenly believe that the companion is there simply to provide moral support and act as a witness for the employee but can take no active part in the hearing. The reality is that the companion has the right to address the meeting, make representations on behalf of the employee, challenge evidence and sum up the employee’s case. The companion cannot however answer questions on behalf of the employee. When an employer asks a question to the employee who is the subject of the hearing and the question clearly requires to be answered by that person, the employer should insist that the companion does not answer the question on behalf of the person to whom the question is addressed.

Sometimes, particularly with a strong union representative, it can be difficult to stop the companion responding to questions asked directly of the employee. It is worth setting out clearly at the start of the meeting what the role of the companion is and then reminding the companion of this during the hearing if they fail to adhere to the terms set out relating to their participation in the hearing.

If an employer believes that the employee’s companion is being unnecessarily difficult or is obstructing the progress of the hearing, the companion should be reminded that the employee’s right of accompaniment only extends to reasonable requests for accompaniment. The employer should indicate that if the obstructive behaviour does not stop, the request for continuing accompaniment by that person will no longer be considered reasonable and the hearing will be adjourned, to be re-convened and that particular person will not be permitted to attend the re-convened meeting as the employee’s companion.

The disciplinary and grievance procedures are designed to assist employers and employees in fairly addressing difficulties that arise in the workplace. The right for the employee to be accompanied at hearings is an important part of the process and it is therefore important that employers understand both who can attend hearings as a companion and what the role of the companion at the hearing is. If an employer is in any doubt, specific advice should be sought prior to the hearing.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.

How can I be sure of the employment status of someone I am paying?

We are often contacted by business owners who would like to engage someone on a self-employed basis to assist them in their business.

The usual rationale that we hear for business owners wanting to take on someone on a self-employed basis (rather than bringing in an employee) is that a self-employed person does not have the benefit of employment rights such as annual leave, sick pay, notice and redundancy pay. While it does of course seem attractive to have the benefit of engaging someone’s services without them accruing employment rights, there can be draw-backs too. For instance, a self-employed person will usually have their own insurance costs and be using their own equipment in carrying out the work and so will usually require a higher rate of pay than an employee performing a similar role. Further, it is much more difficult to control the activity of a self-employed person than it is to exercise control over an employee’s activities.

As with most things relating to employment law, the issue of employment status is complicated. Even something as seemingly basic as identifying whether someone is employed or self-employed is not as straightforward as most people think. What the parties call the relationship is not determinative. What is important is what is going on in practice on a day to day basis. A business owner might think someone is self-employed and get a nasty surprise when the individual subsequently claims that they have employment status with all the rights that go with it and a Tribunal finds that the individual has been unfairly dismissed.

There is no set test for defining employment status but there has been some good guidance arising out of case law where the point has been argued.

An individual is likely to be found to be self-employed if:-

-          He can send a substitute to carry out the work on his behalf

-          He uses his own equipment in carrying out the duties

-          He has his own public liability / professional indemnity insurance

-          He sets his own hours

-          He carries out work for several different businesses

An individual is likely to be found to be an employee if:-

-          He has to carry out the work personally

-          He uses the business’ equipment and works under the business insurance

-          The business sets the hours of work and rate of pay

-          The business owner / manager can give him other duties and bring him in on other tasks

Whichever arrangement a business owner decides upon at the outset, it is important to record the terms of the engagement in writing so that, at the very least, the intentions of the parties are clear from the start. Whether it is a contract of employment or contract for the engagement of a self-employed associate, Collective Business Services can provide you with the right advice and record the terms in a written agreement.

Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.