According to the LRA definition, grievances are concerns, problems or complaints that an employee has about some aspect of their work. Most employers should expect to hear grievances raised from time to time and we know that most are resolved quickly and informally, particularly if there is a relationship of trust between the employee and the manager.

The statutory workplace grievance procedures under the Employment (Northern Ireland) Order 2003 were repealed and employers are now directed to the LRA Code of Practice on Disciplinary and Grievance procedures for guidance on how Grievance policy and procedure should be approached and managed.

Some might argue that the repeal of the statutory workplace grievance procedures has simplified the way in which employers are required to deal with workplace grievances. However, despite the fact that Section 2 (Grievance Procedures) of the code is written in simple and straightforward language, there remains a level of uncertainty, particularly when dealing with some of the common complexities which occur in practice, such as how to manage repetitive grievances or what to do if the employee is absent with stress or anxiety whilst a grievance is being investigated. We touch on a few common concerns and offer some guidance on how to approach them.

LRA Code of Practice

In the first instance and whenever a Grievance is raised, it is important that all NI employers are familiar with and follow the new LRA Code of Practice on Discipline and Grievance which came into effect in April 2011. Industrial Tribunals can take into account ‘unreasonable failure’ to follow the grievance aspects of the Code and may financially penalise the employer (or the employee) when making a final decision in a tribunal case.

At a glance

The code summarises guidance for employers as follows:

Drawing up a grievance procedure
• Involve management, employees and their representatives.
• Explain procedures to employees and make sure they have access to a copy.

Operating grievance procedures
• Where appropriate aim to resolve grievances informally with line managers.
• Employees should raise formal grievance with line management.
• Invite the employee to a meeting and inform them that they may be accompanied.
• Give the employee the opportunity to have their say at the meeting.
• Respond in writing within a reasonable time and inform the employee of their right to appeal.

Appeals
• A more senior manager should, if possible, handle the appeal.• Tell the employee that they may be accompanied.
• The senior manager should respond to the grievance after the appeal and tell the employee if it is the final stage in the grievance procedure.

Records
• Written records should be kept for future reference.

There are some inclusions within the Code of Practice which may mean that your existing Grievance policy should be updated. Some points of note include:

• The LRA Code does not include procedures that apply specifically to former employees. However, where the grievance is about an issue that could form the basis of an industrial tribunal claim and the grievance has been raised within the relevant time limit for bringing the claim, employers might choose to err on the side of caution and where practicable deal with the grievance in accordance with the Code. Policies may state that grievances from former employees will be heard at the employer’s discretion.
• The employee is required in a written grievance, not only to state the grievance but also to state how it might be resolved. This requirement should b reflected in the Grievance policy.
• Employers should take steps to ensure all employees understand the policy. This implies that putting a policy on an intranet site or in an inaccessible handbook will not suffice. Employees should be taken through the policy and the employer should keep a record that this has taken place.
• There is no set time frame to respond to grievances, but this must be within a ‘reasonable’ time frame. Responses must not only set out the decision but also how this decision was reached and any proposed action, if appropriate.

What if an employee fails to attend a grievance hearing?

If there is a genuine reason preventing the employee from attending the hearing (e.g. illness or their companion cannot attend) then an alternative date should be arranged within a reasonable time frame. If the employee fails to attend a rearranged meeting, they should be made aware that you may make a decision in their absence, based on the information available.

Should the grievance hearing occur if the employee is absent with stress / anxiety?

Write to the employee and state that in order to proceed you will require their consent for you to obtain a medical assessment of their ability to attend a grievance hearing in the near future from either their GP or an occupational health specialist. If the employee is deemed fit enough to attend, you should arrange the hearing with the employee without delay. If not, you will not be able complete the grievance procedure without delay. In this situation, you may choose to ask the employee for written representation and make a decision in the employee’s absence.

What to do when an employee raises a grievance during a disciplinary process?

The Code states that in this case the disciplinary process may be temporarily suspended in order to deal with the grievance. There may be situations where the employer may find it more convenient to deal with both issues concurrently. The appropriate approach will be fact sensitive and employers should seek advice if unsure.

What if the employer believes the employee is making false or malicious grievances?

If there is evidence to suggest an employee is deliberately making false allegations, or is doing so as a form of bullying, this can be treated as misconduct, and in some cases can justify dismissal. In Bashir and another v Sheffield Teaching Hospital NHS Foundation Trust EAT/0448/09, two employees were dismissed after making multiple grievances alleging race discrimination, which the employer found they had made in bad faith. The employees’ dismissals were found to be fair by reason of their conduct. However, an employer considering disciplinary action will need clear grounds for a belief that the grievance is false; in particular, the employer should be cautious where the employee makes allegations of discrimination, as action taken against him or her can amount to victimisation if the employee is in fact acting in good faith in making the allegations.

What to do if a grievance is a repeat of previously resolved grievance?

If a new grievance repeats a complaint that the employer has already dealt with in the past, the employer should ask the employee to explain how the new grievance differs from the previous one, or what new evidence has come to light. Where it is clear that there is nothing new being raised, the employer will not be required to hold a new hearing. There is no implied term in the contract to the effect that an employee will have multiple opportunities to have the same grievance reconsidered.

In this case it is prudent to write to the employee and explain that no further action will be taken because the issue has already been dealt with and refer the employee to the previous correspondence and outcome. The letter should inform the employee that the matter will be considered again if new incidents occur or if new facts come to light.

A note about the guidance on the LRA free Pre Claim Conciliation services

Employers and employees should always use internal Grievance procedures before considering any other option. It’s usually quicker, less stressful and less costly for all concerned.

Where a problem or disagreement in the workplace is likely to lead to a tribunal claim, however, the Labour Relations Agency will often be able to help employers and employees find a solution that is acceptable to both. This service is known as Pre-Claim Conciliation. It can save time and the expense normally associated with a tribunal claim.

Further information about this service can be found here:

http://www.lra.org.uk/index/resolving-disputes/pre-claim_conciliation.htm

The UK economy is struggling to recover from recession, a recession which has left many people out either of work or wondering about the stability of their jobs. Part of the recovery which, we are promised will come sooner rather than later, will be dependent upon galvanising the efforts of an often disenchanted workforce through a meaningful and targeted Engagement Strategy. As a reminder Engagement Strategy is defined as:

‘A workplace approach designed to ensure that employees are committed to their organisation’s goals and values, motivated to contribute to organisational success and enhance their own sense of wellbeing.’

And yet across the board, experts are seeing a widespread failing of HR and business leadership to drive through tangible improvements in engagement and an inability to convince the top team to focus their efforts on something which has a proven impact on the bottom line. Why? Perhaps the squeeze on finances created in all sectors by the current economic circumstances is part of the excuse.

Are leaders wrongly equating Engagement Strategy with a costly reward strategy?

The link with performance outcomes
Here’s a brief reminder of some facts linking Engagement Strategy with performance which were outlined in the well documented McLeod report on Engagement. Gallup in 2006 examined 23,910 business units and compared top quartile and bottom quartile financial performance with engagement scores. They found that:

* Those with engagement scores in the bottom quartile averaged 31 – 51 per cent more employee turnover, 51 per cent more inventory shrinkage and 62 per cent more accidents.

* Those with engagement scores in the top quartile averaged 12 per cent higher customer advocacy, 18 per cent higher productivity and 12 per cent higher profitability.

In addition McLeod reported that:

* Engaged employees in the UK take an average of 2.69 sick days per year; the disengaged take 6.19.

* Seventy per cent of engaged employees indicate they have a good understanding of how to meet customer needs; only 17 per cent of non engaged employees say the same.

* Engaged employees are 87 per cent less likely to leave the organisation than the disengaged.

* Engaged employees advocate their company or organisation – 67 per cent against only three per cent of the disengaged. Seventy-eight per cent would recommend their company’s products or services, against 13 per cent of the disengaged.

The recession can and should be a catalyst for re-connecting with your employees, reminding yourselves as an organisation about what you stand for and what you expect of each other in order to secure long term sustainability.

Be clear on identity
Engagement Strategy starts with a strong sense of what the organisation is about and what your mission and value set is. Only then does this have a chance of being understood, transmitted and reinforced by senior and line managers in particular. Is part of the problem a lack of identity?

In the midst of the recession have we lost our way?

Employers who score highly on engagement tend to have developed a clear brand will an underlying culture which employees can experience and can describe.. There will be a set of clearly articulated values which are consistently communicated and are demonstrated and modelled by the top team and line managers.

Resources are tight, which has meant we are depending upon significant discretionary effort from our people. Discretionary effort comes from engaged employees. It’s pretty simple.

Communication is key and it doesn’t have to be good news
Honest communication about tough times, about difficulties with cash flow and the need to find efficiencies in partnership with employees has a greater likelihood of engendering collective efforts to turn things around, than failing to share the realities of the situation and leaving employees wondering how stable their jobs are and what is being discussed behind closed doors. Its common sense, people need to know they have a part to play in your survival and prosperity. We need to let them know that their efforts are valued.

The best things in life are free
Two of the top three factors which are said to impact engagement levels are ‘challenging work’ and ‘opinions being valued’. Neither of which has any cost associated. Right Management’s Managing Director Jayne Carrington, says:

“A disengaged workforce shouldn’t simply be accepted as a by product of the recession. As we all eagerly anticipate a period of recovery, employers will face a number of challenges, such as staff turnover, low morale and talent shortages still remain a key issue for many organisations, many of which have had to undertake downsizing activities as well.”

If you do nothing else, focusing on manager competence will be crucial in re-engaging your people. How confident are your line managers? Identify those who will need additional training or coaching to improve their ability to engage successfully, particularly through regular open and honest dialogue with their team and having the confidence to empower direct reports to take ownership for adding value in difficult trading or operating conditions.

Think about the four broad enablers that are reported as critical to gaining employee engagement. What are you doing to reinforce each of these. Remember that none of them need to involve any financial burden but will help secure sustainable improvements in performance. These are:

Leadership – employees need to understand not only the purpose of the business but also how their individual role contributes to that vision.
Engaging managers – engaging managers offer clarity for what is expected from the employees, treat their people as individuals with fairness and respect.
Employee voice – employees’ views should be sought out, listened to and employees made to feel that their opinions count.
Integrity – if an employee sees the values of the business ingrained in the management team, a sense of trust is more likely to be developed.

In November we suggested some of the following strategies to improve levels of engagement:

1. Find out where you are starting from.
Take steps to discover the current situation and provide a starting point from which to monitor and measure improvements in engagement in relation to performance. This will be important in getting buy in from senior stakeholders. Schedule one to ones, encourage ‘open dialogue’ and discuss the commitment to re-engaging those who may have become disillusioned. Conduct an anonymous survey to get an understanding of the real issues. Formulate an action plan, focusing on key issues. Repeat the survey annually to track improvements and identify areas which require focus.

2. Focus on Manager Competence.
It is important that employees feel that their ideas are valued and that they can make a valid contribution to decision making. Line managers should be consistent in an approach to involving their teams and respond honestly to issues and feedback when raised, without creating fear of punishment. Regular opportunity for one to one time is an important element of engaging individuals. It is likely that some managers will be less comfortable with this approach and may need to be coached in how to adopt a more inclusive approach. Research has identified that Manager competence is the single most important factor in engaging employees. Making time, fairness, setting challenging but realistic targets and encouraging job discretion are all important factors.

3. Leaders as role models.
Employees will take their cue from the behaviour and commitment of senior people. Consider whether the organisation is clear about its direction, its goals and values. Have these been well and regularly communicated? Do leaders model their passion and commitment?

4. Wellbeing.
Engaged employees report a sense that the employer is concerned for their wellbeing. This may come in many forms including regular assessment of stress factors such as workload, levels of job clarity and autonomy. You may also consider encouraging employees to improve their health and fitness via awareness sessions and providing free information. Larger organisations may stretch to a wellbeing policy which may include gym sponsorship or private health care options.

5. Provide opportunities for growth.
Turnover may have reduced in recent years across many organisations and there may be fewer opportunities for promotion. It is important to look for ways in which employees can continue to grow. Consider the use of talent programmes, project work, job rotation and acting up positions.

Ed Sweeney, chairman of ACAS has said:

“The recession means that a lot of businesses have experienced a challenging period. Inevitably, this has had a knock-on effect on employees and morale. As we approach what might be the beginning of the end of the downturn, business leaders and managers have a responsibility to encourage an open business culture.”

The market is fiercely competitive and we need our people to be close to the customer and advocate our business or services in all their interactions. It follows then that Engagement Strategy must be a priority for survival. We need our people to lose any sense of indifference. We need to get the passion back. When recovery does take hold, those employers who have taken tangible steps to improving engagement will be in a better position to retain their talent and build upon the momentum. Those who do not may face an uphill struggle to compete and a potential mass exodus of any talent which remains.

Location:        Belfast

The organisation

Liberty Information Technology (LIT) is a wholly owned subsidiary of Liberty Mutual Insurance, a billion dollar insurance company and member of the Fortune 100 group.   The company employs more than 300 dedicated IT professionals, developing world class software development solutions supporting Liberty Mutual in its operations worldwide.

This is a dynamic and diverse environment with a reputation a great employer and we have been recognised by being placed in the Top 50 UK Great Place to Work in 2010 and 2011 and achieving IIP Gold status in 2011.

The role

The HR Director is a key member of the senior management team, contributing to strategy and decision making whilst also ensuring the delivery of operational plans. The role reports to the Managing Director who is Belfast based, with dotted line responsibility into Corporate HR in the Boston area. The post holder has responsibility for influencing strategic direction and organisation wide HR operations ensuring development and for implementation of best practice in the following areas: Performance Management, Training and Development, Talent Acquisition and Retention, Governance and Compliance, Compensation and Benefits, and Employee Relations.

The core responsibilities and deliverables of the role are outlined below;

• Contribute to the strategic development of the organisation through advising the MD and Senior Management team on best practice HR and people management as appropriate to LIT’s needs.

• Work in partnership with the Corporate HR leader to interpret and align global policy and practice.

• Act as Trusted advisor and coach members of the management team.

• Develop and drive appropriate performance management strategies across the organisation to ensure business results.

• Ensure policy and practice is up to date with legislation requirements and reflective of latest HR thinking and that these are applied consistently and effectively throughout the organisation.

• Align and implement appropriate compensation and benefits programs.

• Proactively drive appropriate talent support programmes to support the needs of our dynamic IT environment.

• Develop recruitment strategies to meet the needs of changing organisational demands in a highly competitive talent market and ensure implementation and continuous evaluation of same.

• Develop appropriate leadership and management development strategies and initiatives to support skills and capability growth.

• Ensure operational delivery of HR plans through effective management and development of the HR team.

The Person

Experience Requirements

Essential

• Demonstrable ability to contribute to strategic planning and decision making.

• Experience of designing and implementing tailored and successful talent management structures and intervention.

• Experience of working within a complex environment with multiple internal and external stakeholders, locally and globally.

• Experience in development of strategic performance management structures that maximise individual and business performance and the effective implementation through good process management and skills development.

• Experience of working with compensation and benefits structures.

• Strong employee relations experience, demonstrating a working knowledge of relevant legislation and experience of policy development.

• Experience of managing a team to ensure results focus with a customer driven philosophy.

• Highly proficient in the use of MS Office suite of products.

Desirable

• Experience of working as part of multi-national group.

• Experience of working within the IT or technology sector.

• Experience of responsibility for compliance and governance in a relevant environment.

Required competencies

• A confident character, with the ability to lead and operate at a senior level and challenge business leaders to facilitate strategy development and decision making.

• Excellent analytical and problem solving skills, where things are not always taken at face value and options reviewed to ensure considered thinking and innovative solutions.

• Exceptional relationship building and interpersonal skills, where the development of trust based relationships across all levels of the organisation and with a range of stakeholders facilitates the creation of alignment and achievement of organisational objectives.

• Works with high levels of integrity.

How do I apply?

To apply, submit your CV along with the application and monitoring forms which are available for download below. Once completed, please email your forms to info@thinkpeople.co.uk.

Alternatively, post your completed forms to:

Emer Hinphey
thinkpeople Consulting Ltd
161 Ravenhill Road
Belfast
BT6 OBQ

On receipt of all applications we will send an acknowledgement email. If you have not received this email within 2 days of submitting your application please contact Emer on 07917 150015 to confirm receipt.

Downloads

Application Form

Monitoring Form

The closing date for receipt of application forms is Friday 13th April 2012

We know this, and yet when it comes to facing the management of an employee who is significantly underperforming, managers are often stumped. What should I do and what can I do, are the common questions?

Whilst it is often the case that the best HR policies are no comparison for good, intuitive line management skills, in this particular case it is important that your procedures help managers to understand the different facets of managing underperformance and the possible routes to managing an improvement or an exit from the organisation, depending on what you are dealing with. HR have a clear role to play here in establishing appropriate procedures and ensuring that managers are briefed and guided appropriately.

Fair Dismissal

Whilst we are acutely aware that dismissal should be the last consideration, in reality it is often the first, typically when a frustrated manager asks the HR manager how quickly this can happen in a case of poor performance. The dismissal question does serve a useful purpose however, in that it reminds us that amongst the fair reasons for dismissal, a termination for poor performance can legally occur for both ‘capability’ related issues (where an employee is either too ill or lacks the skill / ability to perform to an acceptable standard) or for ‘misconduct’ (where an employee fails to meet acceptable standards, despite having the appropriate levels of skill and resource to do so). Check your policies, is this distinction clear? Are managers confusing one with the other? Do you deal with all underperformance as a misconduct issue?

Ensure that you have policies which cover both Capability and Performance Improvement in order to cover issues of capability as well as misconduct.

Procedural Steps

The Labour Relations Agency updated their advice on managing poor performance in June 2011. In it they advise that whilst the exact procedure for managing poor performance may differ, there are two important procedural steps:

1. Investigation – The employer should gather information about the decline in performance and then discuss this with the employee to establish if there is an underlying cause.

2. Review meetings – A dismissal after the first instance of underperformance is unlikely to be viewed as fair and reasonable. A procedure should include a meeting which clearly outlines the required performance improvement (often referred to as the Performance Improvement Plan), goal setting and a subsequent review to assess achievement. The number of review meetings that are appropriate will depend on the nature of the underperformance and whether any improvement is shown at review. During a probationary period, a single review meeting may not be considered unreasonable. Review meetings should set out in writing the reason for the review and all actions should be documented.

Whether the issue is one of capability or misconduct, it is important to meet with the employee, in order to establish an underlying cause. The meeting should clearly state the required improvement in performance levels, be it in relation to behaviour or specific outputs such as punctuality and set target dates for improvement which are achievable and reasonable, given the explanation provided. If support is requested, this should be provided where possible.

What are you dealing with?

The following questions are suggested by the LRA in investigating the nature of the underperformance and may help identify underlying causes:

1. How long has the employee been underperforming?
2. Has there been an increase in workload or a reduction in staffing levels?
3. What has the employee’s past performance level been like?
4. Have there been changes which have impacted, e.g. new technology?
5. Has there been a change in personal circumstances?
6. Is there any interpersonal conflict in the workplace?
7. Is the employee showing signs

In support of improvement

The high level reasons which are commonly linked to poor performance are indicated below, it should be noted that often a combination of reasons are at the root of the problem:

* Lack of application (I can, but I won’t attitude)
* A lack of skills capability (Inadequate training, resources, instruction or necessary ability)
* A lack of physical capability (due to illness, injury or disability)

Aside from physical incapacity, employees are often unaware of the severity of their underperformance until it is outlined to them during a review meeting. Often, a respectful meeting to discuss a required improvement is all that is required. However, in order to demonstrate a reasonable and fair approach in the cases where dismissal for capability or misconduct is a real possibility, the employer is advised to take steps to help support improvements, these might include:

* Adjustment of the role either as a motivating enhancement or variation or as a temporary reduction of duties as appropriate.
* Provision of regular coaching.
* Agreement to clearer instructions on requirements and more regular feedback.
* Changes to the duties or working hours to make adjustments for a long term illness (including stress) or a disability. Where poor performance is related directly to a disability then the employer should refer to the requirements of the Disability Discrimination Act in making reasonable adjustments. This does not preclude a dismissal for Capability where an employee has a disability as long as due process has been followed and adjustments have been properly considered and exhausted.

Stress is fast becoming the most frequent cause of workplace absence and is often directly related to poor performance. A body of case law has built in recent years which underlines the employer’s duty of care on this issue. It is important to consider causal issues such as workload or the way the work is managed before moving directly to corrective measures through a disciplinary procedure.

Whilst dealing with poor performance should be relatively infrequent, it is important that your policies are structured well enough to ensure that each case is dealt with fairly, consistently and with due process. We have touched on some of the key points in relation to managing poor performance here and clearly each case will have its own particular considerations or complexities.

The 5th June 2012 is an additional bank holiday in Northern Ireland

The Queen’s Jubilee, 5th June 2012, has been allocated as an additional bank holiday in Northern Ireland. For the occasion, the Bank holiday which normally occurs at the end of May has been moved to the 4th June to allow for an extended weekend of celebrations.

Entitlement

Whether employees are entitled to an additional day’s holiday will depend on the wording of their employment contract and/or any subsequent agreement with the employee. Employees will not have an automatic right to paid time off on these extra bank holidays unless stated in their contract.

Employers should consider the contractual position now and communicate the position promptly to their employees to avoid confusion or doubt.

* Where a worker’s contract states they are entitled to the statutory minimum annual leave only (5.6 weeks), an extra bank holiday will not increase their paid holiday entitlement.

* If the contract entitles the employee to annual leave plus all bank and public holidays, they may be entitled to the additional bank holiday as annual leave.

The Jubilee will be a significant occasion for many, and therefore consideration should be given to the following:

* Whether it will affect the morale of your workers if your business does not allow for time off on this day.

* Some employers will have inconsistent contractual wording with the result that some employees are entitled to the extra day and some are not. The best approach may be to allow all employees the extra day. You may be interested in finding out what other businesses propose to do in Northern Ireland and to this end we would encourage you to email us with the name of your company and advise us how you plan to manage the Queen’s Jubilee. We will publish the results by sector in our April Newsletter.

Pay

If employees are asked to work on an extra bank holiday their right to extra pay again depends on the terms of the employee’s contract of employment. Employers should already have communicated the rate of pay for working on a bank holiday. If nothing has been addressed in the original contract the employee’s entitlement will then depend either on what has been subsequently agreed or on what has been implied by custom and practice.

* If employees have been paid a higher rate for working bank holidays in the past, it is possible, depending on the circumstances, that this will have become a contractual entitlement. You may wish to seek further clarification on this point from us.

* If the employee refuses to attend work on the extra bank holiday and there is a contractual obligation to work that day, the employer can follow its disciplinary policy and the LRA code of practice on disciplinary and grievance procedures.

There is still time to register for a place on our HR Essentials Lunchtime Seminars which begin on Friday, 27th January. The seminars will cover the topics issued in our monthly newsletter and are aimed HR professionals and anyone who has people management responsibilty within an organisation. They will offer the opportunity to brush up on the latest HR topics, be that a recent or upcoming legal development, or more operational challenges such as rationalisations, performance management, discipline and grievance, engagement, reward and organisational development.

The sessions will be facilitated by our most experienced Senior Consultants and will cover key points over the lunch hour. By providing a sandwich lunch during the session, we hope that delegates will get the benefit of great advice whilst making the most of their busy work schedule. We know that the opportunity for HR professionals to network can be invaluable in itself and we see these lunch time discussions as an excellent forum to do so.

The dates and topics for the first seven seminars are set out below. The remaining three topics will be determined by the delegate group once it is established.

27/01/12 Essentials and templates for approaching a rationalisation or reorganisation of your operation
24/02/12 Agency Workers: top tips in handling the new legal requirements
30/03/12 Top tips in managing poor performance
27/04/12 How to develop an engagement strategy in difficult economic circumstances
25/05/12 Best practice grievance handling
29/06/12 Compromise agreements and tips for handling them effectively
31/08/12 Dealing effectively with long term absence

Please note that all seminars will commence promptly at 12.30pm. Sandwich lunch will be served from 12.15pm.

Each session costs just £45 or £450 for the 2012 subscription. Why not book a place for your organisation and nominate the most appropriate person to attend each session. Please click on the link on our home page to download a registration form and return this at your earliest convenience in order to secure your delegate place(s).

Completed forms should be emailed to fiona.wilson@thinkpeople.co.uk or posted for Fiona’s attention to:
thinkpeople Consulting Ltd
161 Ravenhill Road
Belfast
BT6 0BQ

At a very basic economic level the past year’s cuts in funding and worsening economic climate has forced employers in all sectors to look at rationalisation. For many this meant redundancies in 2011.

Many of you will now be familiar with the necessary steps when considering redundancies. Rationalisation is possibly not as familiar territory.

Variation of contracts can be a difficult and complex process, however it is increasingly common within our client base and it is therefore the focus of the HR Newsletter this month and the focus of the first of our exciting new lunchtime seminars on 27th January.

Where to start?

Unilateral changes to employment contracts cannot be made without an employee’s consent. It is important to note that contractual terms are binding in law and any change without consent may lead to claims for breach of contract and the potential for claims of constructive dismissal. Employers who vary terms without consent also risk being unable to rely on other contractual terms given that the original contract will no longer be valid if breached.

1. Consider the business case for changing terms

The first step will always be to undertake a robust review of the operation, including assessing income versus costs and full year projections and other strategic reasons for changing, e.g. harmonisation. If the review presents significant concern, produce a number of scenarios for achieving a planned outcome, e.g. freezing overtime and /or premium pay, reducing salaries / pay, reducing working hours / shift working or reducing subsidies and benefits. Against each scenario consider the potential impact on morale, retention of key personnel and productivity levels. Prior to commencing any plans for varying terms, ensure that the business case is clear and justifiable.

2. Do contracts include a flexibility clause?

Check existing contracts for a term known as a ‘flexibility clause’ which allows an employer to vary terms without the employee’s express agreement. It should be noted however that these clauses usually refer to minor changes only or those which are not detrimental to the employee and cannot be relied upon if you are looking to make more significant changes. It is a good idea to include such clauses in any new contracts to make clear from the outset that a level of flexibility is required. In any event the employer must always act reasonably if they are to avoid breaching the implied duty of mutual trust and confidence when making contractual changes.

Obtain agreement

3. Seek to agree changes

Prepare your proposal for change based on the business case, and taking into account that employers are expected to act reasonably. Changes may be agreed via consultation on an individual basis or in some instances through a collective agreement. The proposed changes should be discussed via consultation with each employee or his or her representatives and agreement obtained in writing. There may be an implied or express agreement in place between the employer and employee that relevant changes in terms and conditions can be agreed via collective agreement with a Trade Union or workforce representative group. This agreement may in some instances document the method and length of the consultation period. If the process impacts on 20 or more employees, it is also wise to refer and comply with the collective redundancy consultation requirements, in the event that the consultation leads to the dismissal and re-engagement of the affected group (see below).

Where the employer has also proposed redundancies as part of the rationalisation process, the consultation can be run in tandem, covering both proposed contractual changes and redundancy. When consulting about contractual change it is often a smoother process if detrimental changes can be offset in some way, or tied in with beneficial changes, for example introducing more flexible working or increasing annual leave.

Where agreement has been reached on contractual change, and the change concerns particulars which must be included in the written statement of terms and conditions, the employer should give written notification of the change to the employee, within a month of the change taking effect.

If agreement cannot be reached

4. Dismissal and re-engagement on new terms

If, following consultation, there are some employees who have not agreed to the proposed change, the employer may consider the option to dismiss those employees and re-engage them on new terms to bring about the change. As is the case with collective redundancies, you must inform Department for Employment and Learning, Redundancy Statistics Section, Statistics Research Branch (DETI), of plans to dismiss 20 or more employees, even if the plan is to re-engage them.

This should be a final resort where there is a compelling business case to do so. The employees should be notified, in writing, that if a voluntary agreement cannot be reached, you may have no option but to dismiss them with reasonable notice as specified in the employee’s contract or the minimum statutory notice period and offer them re-employment with new terms. In this case the dismissal should follow fair procedure as outlined in the LRA code of practice, including the right to appeal. There are a few situations involving groups of employees where all aspects of the statutory procedures do not have to be used.

This can be a complex and high risk process depending on the nature of the changes and the employee response. I have attempted to introduce the high level steps and considerations. Detailed planning and assessment of the risks before starting can minimise the potential issues along the way. Companies that are planning to implement contractual changes may find it useful to contact us for detailed advice.

We are excited to offer you the opportunity to attend a series of high impact and low cost HR lunch seminars which we will be offering on the last Friday of each month* in central Belfast. The seminars will cover the topics issued in our monthly newsletter and are aimed at anyone who wishes to brush up on the latest HR topics, be that a recent or upcoming legal development, or more operational challenges such as rationalisations, performance management, discipline and grievance, engagement, reward and organisational development. The sessions will be facilitated by our most experienced Senior Consultants and will cover key points over the lunch hour. By providing a sandwich lunch during the session, we hope that delegates will get the benefit of great advice whilst making the most of their busy work schedule.

We know that the opportunity for HR professionals to network can be invaluable in itself and we see these lunch time discussions as an excellent forum to do so.

To ensure delegates get the most from the sessions, we have stipulated the most requested newsletter / seminar topics below. The remaining three topics will be determined by the delegate group once it is established.

• Agency Workers: top tips in handling the new legal requirements.
• Essentials and templates for approaching a rationalisation or reorganisation of your operation.
• How to develop an engagement strategy in difficult economic circumstances.
• Top tips in managing poor performance.
• Best practice Grievance handling.
• Dealing with long term absence effectively.
• Compromise agreements and tips in handling them effectively.

Each session costs just £45 or £450 for the 2012 subscription. We are offering a 10% early bird discount for those booking 10 sessions prior to 6th January. Do feel free to circulate this information to relevant colleagues and peers who may benefit. In the meantime, should you/your colleagues wish to attend, please contact fiona.wilson@thinkpeople.co.uk for an application form.

*NB There will be no session in July or December.

Our exciting new venture for 2012 is a series of HR Essentials Lunchtime Seminars to be held in the Wellington Park Hotel on the last Friday of each month. We will be writing to you separately with details of how you can become involved.

Given that we are fast approaching the festive period and next month we will already be entering 2012, we thought it would be a worthwhile exercise to take stock, in this last newsletter of 2011.

We asked some of our influential friends and colleagues in HR and the legal profession to consider what it is that 2011 has taught them and to consider what, with the very best of intentions, their resolutions will be for the coming year.

We share below a selection of responses, perhaps there is food for thought in there for all of us.

As always, let us know your thoughts, we’d love to hear what other HR lessons and resolutions are out there. You can leave your comments on our webpage at www.thinkpeople.co.uk

2011 has taught me the huge value of personal and professional authenticity. It’s also my resolution for 2012 to encourage others to make sure their decision making and communication style is always authentic. This links to trust, which is a corner stone in engaging people in any circumstance.
Angela Schettino, Senior HR Consultant, thinkpeople Consulting Ltd

Biggest HR lesson for 2011 – “Just when you think employment law has started to settle down something comes from left field and totally blindsides you. Every day is a school day, never forget that.” Resolution for 2012 – “Educate, talk, learn, adapt, prevent” – the words of a recovering academic.
Mark McAllister, Senior Employment Relations Manager, LRA & Lecturer

The biggest lesson from our HR clients in 2011 is that employees understand the need for tough decisions- they challenge them where there is not enough transparency leading to a feeling of unfairness- and a claim. Over the last few weeks the Coalition government in G.B. has announced a series of changes which will cumulatively streamline the tribunal system and cut costs and (perhaps) the number of claims. While we need not slavishly follow G.B. in 2012 the Northern Ireland HR and legal community needs to make the case for positive change to the Minister and to the Assembly- we must all be willing to get actively involved in consultations.
Adam Brett, Partner at McGrigors

My biggest HR lesson is that HR theory and hard evidence count for little at strategic level politically when the economy is struggling. Regardless of all the evidence that employee engagement makes the difference between high performance organisations and others, the Government is ‘improving’ things for employers by making it easier to dismiss staff and create uncertainty in workforces. It should, in my opinion, be looking to reward organisations that bring staff with them during the hard times, that encourage employee involvement in decision-making, that try to retain experienced employees and share knowledge in a nurturing and challenging environment.

Confidence gets you much further and you don’t encourage confidence by making it illogical for people to move for fear of getting sacked by a new employer. People won’t suggest new things if they think they’ll get sacked if the ideas don’t work straight away. And unions (and their members) won’t trust employers who use minimal rules to announce mass redundancies without meaningful consultation.

My personal ambition for 2012 is to make it alive to my 50th birthday and have a day out at Edinburgh zoo with the new giant pandas they’re getting there. I might even invite the family if they’re nice to me. And get over my residual fear of heights by Going Ape: http://goape.co.uk/http://www.scotsman.com/news/environment/pandas_to_arrive_at_edinburgh_zoo_on_sunday_1_1987888
Scott Alexander, Head of Training and Development, Legal Island

Organisations and the people working within them have faced some difficult challenges. Lots of lessons have been learned but I think there is a reinforcement of the fact that regardless of the climate organisations should constantly be focussed on efficiency and prudent in their decision making to reduce their exposure in tougher times. In relation to people management, having a genuine strategy for engagement in the good times creates the productivity needed to deliver, but also engenders relationships built on trust and loyalty which many employers are now relying on to get through the more difficult periods.

I have lots of resolutions about work but personally I’ve decided this year to give in to my creative side and take a photography course and have more fun!
Emer Hinphey, Managing Partner, thinkpeople Consulting Ltd

The importance of retaining good people and good skills during tough times, even at the expense of profitability. When the business returns to good times, it provides such a strong platform from which to bounce back and grow again quickly, as has been the case for Kainos in 2011. Resolution: Work smarter, not harder, and get home earlier in the evenings.
Paul Hamill, Head of HR, Kainos

As cliché as it sounds – I believe failing to prepare, is preparing to fail when supporting managers through HR processes. Also, HR professionals put themselves under too much pressure to be able to instantly recall ‘all the answers’ – you don’t always need to have all the answer.…..but it is useful to know someone that does ha ha. Personally my resolution for next year is to continue to strive for a reasonable work/life balance.
Donna McDowell, HR Manager, Oxfam Ireland

During the current recession I have seen better opportunities for a new breed of managers, who challenge processes and procedures and inspire a shared vision of the future. Therefore, my biggest HR lesson from 2011 is that HR Professionals are playing a greater role in all aspects of business strategy, management development and have been more creative in relation to staff training. Professionally I am setting myself the challenge of completing a Certified Environmental Awareness course to look at cost reduction via better environmental management and developing policy, procedures and action plans accordingly. On a personal level, I look forward to all the joy that family life continues to bring and creating some times for a few spa treatments along the way if possible!
Linzi Conway, KTS Consultants

I’m not sure if this is a lesson learned or more something that has come to the fore for me having joined shortly after a major re-structuring but the importance of clear communication, focusing on people and providing as supportive and encouraging an environment as possible to keep employees engaged and motivated is definitely something which has been highlighted to me over the last few months.

Resolutions: Well of course I have the usual resolutions of getting fit (never quite seem to achieve that one) and spending plenty of time with my family and friends (not normally too bad on that front).
Professionally, and stemming from the lessons learned since I have started in this role, I will be continuing to focus on employee engagement and motivation and what the organisation can do to effectively support and encourage our members of staff not only for the benefit of our employees but also for the benefit of the organisation as a whole and the clients to whom we provide a service.
Claire Murray, HR Manager, Futures NI/PRRT

Biggest lesson of 2011 – Authentic leadership always ‘wins’. This has been evident when clients have had to make tough business decisions (redundancy/restructuring) and the way they treat their people. Resolution for 2012 – Achieving continuous professional development goals despite a reduced budget!
Fionnuala McIntyre, Learning & Development Consultant

2011 has been a tough year for business and employees alike. Many Employers have had the ironic challenge of attempting to implement rationalisation and engagement side by side with us as HR practioners guiding them through the legal and emotional turmoil.

For 2012, think ‘commercial’, think ‘legal compliance’ and think ‘truly engage your people’.
Anne Dougan, Managing Partner, thinkpeople Consulting Ltd

Hopefully this has given you some food for thought and reflection. As we approach a new year what are your own personal reflections and learning points? What will be your work and personal resolutions?

We recommend all to reflect on what challenges you have found most difficult this year. What skills have you developed as a result and what has this taught you for the future?

Defining Engagement
In 2009, a Government authorised report by David MacLeod significantly raised the profile of what organisations across the UK understand Engagement to be and since then the term is used to a greater extent around top tables. Defining Engagement however, proves notoriously difficult, given that it involves the intangible relationship between employee and employer. The MacLeod report refers to over 50 definitions but settles on this description of Engagement Strategy;

“A workplace approach designed to ensure that employees are committed to their organisation’s goals and values, motivated to contribute to organisational success and enhance their own sense of wellbeing.”

The definition is helpful in that it points to the fact that Engagement Strategy is a proactive approach in an environment in which organisational goals are shared and there is a focus on communication, individual contribution and wellbeing. Focusing on Engagement is a ‘no brainer’, given that it leads to an increase in ‘discretionary effort’ or put more simply, employees will choose to ‘go the extra mile’. Research points to a strong correlation between engagement and performance.

Despite the talk, research suggests that the UK workforce has not become more engaged and productive. The CIPD’s 2011 ‘Employee Outlook Survey’ concluded that engagement may be as low as 10%, using factors such as understanding the organisation purpose and trust in senior managers. The focus on cost efficiency in recent years, threats of redundancy, wage freezes, and increasing work intensity appear to have combined to effectively disengage the workforce. The question is:

Is it possible to engage during times of economic difficulty?

In our view, Engagement has been around as long groups have been organised to achieve a common purpose. Can Engagement exist in difficult circumstances? We believe so, in fact, engagement can be seen to increase where there is a sense of common purpose in achieving something despite adversity. Examples can be drawn from history, but modern business case studies suggest that even during the recession, high performance can be linked to high levels of engagement.

Where to start

1. Find out where you are starting from. Take steps to discover the current situation and provide a starting point from which to monitor and measure improvements in engagement in relation to performance. This will be important in getting buy in from senior stakeholders. Schedule one to ones, encourage ‘open dialogue’ and discuss the commitment to re-engaging those who may have become disillusioned. Conduct an anonymous survey to get an understanding of the real issues. Formulate an action plan, focusing on key issues. Repeat the survey annually to track improvements and identify areas which require focus.

2. Focus on Manager Competence. It is important that employees feel that their ideas are valued and that they can make a valid contribution to decision making. Line managers should be consistent in an approach to involving their teams and respond honestly to issues and feedback when raised, without creating fear of punishment. Regular opportunity for one to one time is an important element of engaging individuals. It is likely that some managers will be less comfortable with this approach and may need to be coached in how to adopt a more inclusive approach. Research has identified that Manager competence is the single most important factor in engaging employees. Making time, fairness, setting challenging but realistic targets and encouraging job discretion are all important factors.

3. Leaders as role models. Employees will take their cue from the behaviour and commitment of senior people. Consider whether the organisation is clear about its direction, its goals and values. Have these been well and regularly communicated? Do leaders model their passion and commitment?

4. Wellbeing. Engaged employees report a sense that the employer is concerned for their wellbeing. This may come in many forms including regular assessment of stress factors such as workload, levels of job clarity and autonomy. You may also consider encouraging employees to improve their health and fitness via awareness sessions and providing free information. Larger organisations may stretch to a wellbeing policy which may include gym sponsorship or private health care options.

5. Provide opportunities for growth. Turnover may have reduced in recent years across many organisations and opportunities for promotion may be more scarce. It is important to look for ways in which employees can continue to grow. Consider the use of talent programmes, project work, job rotation and acting up positions.

Engagement is high on the agenda

Some of the brightest minds across the UK, including notable business leaders, academics and economists, share the view that focusing on Engagement may be the key to survival in what has been described as the worst recession in recent history.

• In his very recent Labour Relations Agency public lecture, John Philpott, Chief Economic Advisor for the CIPD, warns that a failure to engage employees across the UK is impacting on employee and organisational performance, often accompanied by rapid labour turnover, high levels of work related stress and sickness absence. He warns that if employers do not ‘rethink the way of work’, we will fail to meet the economic challenge that confronts us.

• The Coalition Government has set up an employee engagement taskforce headed by David MacLeod to generate debate and share best practice on the subject of Engagement via a new website which includes HR Directors from BT, Marks and Spencer and Unilever amongst its members. A number of practical tools are in the process of being developed including how to engage in times of adversity, wellbeing and CSR (Corporate Social Responsibility). The taskforce aim to present findings and conclusions in 2012.

Engagement should no longer be considered a ‘nice to do’. We can define it, measure it and directly link it to performance. Have you made a start?