Precise express terms of employment are contained in the contract of employment. The Employee handbook contains summary information on the application of key policies and local rules and information. Employers are also advised to have and to act in accordance with a full set of policies and procedures as an essential part of their HR system.
But a shiny file in the corner of an office does not act as a successful employment law defense! Employees should be able to easily access the file (which could also be held on the intranet) and should be given a copy of the appropriate policy and procedure when they are to be subject to it. Employers for their part have a duty to understand the application of policies and, where appropriate, to draw the attention of employees and in some cases third parties and customers to it, and keep documentary evidence that reasonable efforts have been made. Larger employers will be expected to have more sophisticated communication and training mechanisms in place to prove that that have made reasonable efforts to imbed the policy within their organisation. This is particularly important if for example an employer or an employee of the employer is accused of discriminatory behaviour. The employer could be legally liable for damage caused (even if he didn’t know of the event being complained about), but the liability will often be reduced if a) he can show he had a suitable policy in place to prohibit such acts and b) he can show he had reasonably communicated the expectations of the policy to the people being accused of the act and c) he himself had behaved in accordance with the policy.
The devil in the detail here is ‘he can show that….’. To show a third party that adequate precautions have been taken to, for example, describe the employer’s approach to discrimination, it will be important to have an audit trail. This could for example include employees (or others) signing a record confirming they have read and understood the policy, a training record confirming that people have attended an appropriate training session with regard to it, or copies of notices intending to aid its enforcement. The audit trail should be suitably up to date, and this should form part of your ongoing HR safe system reviews.
Typical employment law pitfalls
Problems can arise when the employer does not work to his own policy & procedure, and this can be worse than not having one at all. As mentioned above the presence of robust policies and procedures can help an employer to defend vicarious liability claims (meaning the employer is held liable for the actions of an employee or a third party, even if he didn’t know of the actions), but in practice the tribunal will, having acknowledged that a policy is in place, look at the extent to which the employer has informed employees and third parties about the requirements of the policy.
A lack of policies and rules on practical issues can cause problems because employees are left to make their own judgement on the type of behaviour that may be acceptable or otherwise to their employers.
Help & support
myhrdept.co.uk contains range of policies and procedures. In the main they are reflective of the minimum requirements of the law and are written to best practice standards. We can however bespoke some policies for our customers and we can help create custom policies and procedures if needed:
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