Following that consultation, we will provide you with a summary report explaining our recommendations of the actions required to protect your business, together with a fixed-cost quotation for doing this work.
Funding If your business is based in Cornwall you might be interested to know that your business could be eligible to have 50% of the cost funded by a European programme called Access to Finance Cornwall
Well obviously, the answer is no isn’t it? Your policies probably say so. Why would you let that happen anyway? It will make everyone present feel more nervous and uncomfortable; you don’t know what might inadvertently come out at the meeting that could be used against you in future; a transcript of the recording might not be interpreted correctly, particularly if excerpts are used and the context is lost and, you don’t want the recording ending up on YouTube! All these concerns are perfectly logical and legitimate, but for one problem…
…It happens all the time Even if you have a policy saying it should not. Even if you have expressly told the employee in written correspondence that recording is forbidden. Even if you ask the employee at the start of the meeting and they solemnly confirm that they are not. Believe me, it still does. And, just because you have a policy saying that it should not happen… And the employee did not have your consent… And it might breach data protection law and your fundamental human rights… That does not necessarily stop an employment tribunal judge, focussed on ensuring that justice is done, ruling: “I’ll hear the recording” or “The transcript is admissible”.
And it doesn’t just happen when the employee is present Ever more frequently employees are leaving their phones in rooms where meetings have taken place in the hope of recording the conversation that follows the meeting and obtaining a silver bullet of information. This material is less likely to be admissible in a legal setting, but there are still some instances where it has been permitted. Even if it is not admissible in a court or tribunal, the employee will have gained valuable intelligence on your decision making process which could be used against you. So, with this in mind, should the mind-set that a contemporaneous and accurate record of the meeting be avoided at all costs, be adjusted for the age where making a recording is as easy as pushing a button on a device almost everyone has in their pocket?
Pros v Cons
So we’ve mentioned a few of the negatives, but are there any positives? • There will be no dispute over what was actually said at the meeting. Time will not need to be spent writing up notes and arguing with the employee over the specifics of what was actually said (which may or may not be relevant). If the matter did end up in an employment tribunal, you would still need to make a transcript of the recording, but hopefully these occurrences should be rare. There are now many companies offering relatively cheap transcribing services that could be used in these instances. • If the meeting is being recorded in the full knowledge of everyone present, it is less likely that you will let something slip out that you should not have said and, if it does, you will most likely qualify and explain yourself. This should promote high standards of conduct and fairness which should hopefully, in turn, reduce the prospect of you ending up in an employment tribunal. • If you are ever unfortunate enough to find yourself in an employment tribunal, your open approach is likely to reflect well on you and enhance your credibility in the eyes of an employment judge or panel.
5 Top Tips
Consider your approach on a case-by-case basis. In particular consider the character and views of the employee, the subject of the meeting and any special circumstances. If the employee is disabled, there may be legitimate reasons for allowing the recording to take place in any event.
If you decide to go ahead and record the meeting, record on two devices. This should appease any concerns that the recording may be doctored afterwards. Always ensure that the employee is aware of the recording and provides their written consent. Expressly stipulate that the recording is property of the business and should be treated in the same way as all other confidential business information.
If you (or the employee) are not comfortable with recording, get a good note taker. Let the employee read the minutes there and then and sign to say that they agree. If the minutes are illegible, write them up immediately, and only write exactly what is written (even if it does not make sense). Do not embellish, adjust or write what you meant to say, no matter how tempting it might be. This is only likely to cause you credibility issues if the matter ended up before a judge. Make clear to the employee in all correspondence that the meeting should not be recorded and any attempt to do so will be classed as a disciplinary offence, do not allow coats in the room and expressly ask the employee at the outset if they are recording the meeting.
Always be mindful that you could be being recorded regardless of your stance on the issue. Do not have follow up discussions in the same room.
Once you have decided your practice to be adopted, check that your policies reflect this and update if necessary.
Further information If you would like more information, advice or staff training please contact Melanie Rowe at Murrell Associates on 01872 227006 or by email at firstname.lastname@example.org.
Murrell Associates are continuing to grow and invest in their team with two new paralegals, Jessica Bishop and Emma Robinson, both of whom have recently been awarded training contracts with the firm. Emma and Jessica will complete their training contracts in September 2020.
Both Emma and Jessica grew up in Cornwall and have returned to their Cornish roots after completing their degrees in London. Jessica completed her law degree at BPP University and went on to work for a London law firm before returning to Cornwall. She has begun her training contract working in the commercial and intellectual property team with Rebecca Anforth, who heads up this department at Murrell Associates. Jessica says “I’m really excited to be given the opportunity to complete my training contract with Murrell Associates. They are a specialist business and commercial law firm, the only one in Cornwall, so the experience I will gain will really help me to develop detailed knowledge in this area of law.”
Emma studied law at King’s College, London. She joined Murrell Associates as a paralegal in the summer of 2018 after completing an internship with the firm. Her first seat within her training contract is assisting the corporate team. Emma says “Working at Murrell Associates has been a fantastic learning experience since day one and I am very grateful to the firm for supporting my further training and development. I look forward to the day when I can say that I am a fully qualified solicitor!”
Henry Maples, Partner at Murrell Associates added “We are delighted to be able to offer this opportunity to Emma and Jessica and look forward to seeing them develop their knowledge and complete their journey to becoming qualified solicitors with Murrell Associates. We are a specialist team and work closely with our clients and their businesses, so recruiting and training the right people for this is obviously crucial for us. I wish Emma and Jessica every success.”
References are often an area of confusion and concern for employers. Many decline to provide a reference for fear of the potential legal consequences of responding honestly. This has the negative side-effect of reducing the worth of a valuable recruitment tool.
So what are the risks involved in providing a reference, and what can you do to minimise these risks, if you would like to provide a reference for an employee.
Do I have to give a reference? Generally (subject to certain exceptions in the financial services sector and education) there is no obligation to provide a reference. However, if employers do decide to respond to a request, there are three main things to be mindful of:
Civil claims of negligent misstatement, defamation or malicious falsehood from either the employee or prospective employer;
Discrimination claims; and
Data protection (GDPR).
What are the risks? The general rule is that if a reference is provided it must be fair, accurate and truthful and not give a misleading impression. The main risk is a claim of negligent misstatement from either the employee, prospective employer or both for damages. In practice such claims are rare and unlikely to result where a positive (and accurate) reference is given. The chances of a reference resulting in a claim are significantly increased where an unfavourable reference is provided, especially where a substantial loss can be shown to have arisen as a result (i.e. because a conditional offer of employment has been withdrawn). Although of course if the reference complies with the aforementioned general rule, the employer will have a defence to the claim.
There is also potential for an employment tribunal discrimination claim if the reference, or even the failure to provide the reference, is due to a protected characteristic (such as age, race, sex, disability, sexual orientation, religion or belief). Adopting a consistent approach to the provision of references is therefore important and you need to be mindful that the content of the reference cannot be seen as discriminatory.
Data protection wise, the provision of a reference will usually be a form of data processing. You should therefore ensure that you have complied with GDPR principles and, if disclosing health-related information about a sickness record or reasons for absence, that the employee consents to the provision of confidential personal information being held on them to the person or entity requesting it.
Do I have to provide a copy of the reference to the employee if this is requested? Simply put, no. The GDPR and Data Protection Act 2018 permits both the reference provider and the recipient to decline to provide a copy of a reference if it is requested by the subject. This is a change to the previous position under the Data Protection Act 1998.
However, this does not extend to disclosure in legal proceedings. Therefore, if the matter escalates to the court or tribunal stage, you will be required to disclose the document as part of the proceedings.
4 Top Tips – to help avoid any problems, we would recommend:
that employers have a policy to help them handle reference requests, detailing what information they and their employees can provide. This should help ensure compliance with data protection law and reduce the risk of a discrimination claim;
the simple fact is that there is a correlation between the amount of information provided and the risk of liability. When in doubt, adopt a short, factual and consistent approach;
if negative information is included in a reference, it should have been raised with the employee first and clearly documented; and
the use of a clear disclaimer can eliminate the chance of a successful claim by the recipient of a reference.
If you have received a request for a reference, been threatened with legal action concerning a reference you have provided, require assistance with a reference policy or would like to discuss any aspect of employment law generally, please contact Melanie Rowe on 01872 227006 or by email at email@example.com.
What’s the appeal, why are they useful and what are the risks?
What is a Settlement Agreement? A Settlement Agreement (previously known as a Compromise Agreement) is a legally binding contract made between an employer and an employee. They are commonly used by employers on termination of employment as an effective way of ensuring that they are not sued by the employee and have to bear the associated expense, bad publicity and management time associated with a court or tribunal claim.
How do they work? In essence the employee receives a sum of money in return for signing away their legal rights to sue their employer (commonly known as “paying off” the employee). In addition the employee is usually required to keep the settlement confidential and not to make any derogatory comments about their employer, its directors, agents or employees. Although such confidentiality clauses are extremely common, they have received a lot of press attention lately in the light of the #metoo scandal where they have become commonly referred to as Non-Disclosure Agreements or NDAs. In order for the Settlement Agreement to be legally binding, it must meet certain statutory requirements and the employee must receive their own legal advice in relation to its terms and effect. It is standard practice for the employer to pay a contribution towards the cost of the employee obtaining this advice.
When are settlement agreements used? Settlement Agreements are commonly used where an employer wishes to terminate employment in circumstances that could give rise to a claim (e.g. for a long-serving employee who is performing poorly, but has not undergone any formal performance management process, or where an employee is on long-term sick leave and it is not clear when, and in what capacity, they will be able to return to work). Another common example of their use is where an employer is proposing to make an enhanced redundancy payment and wants the certainty of knowing that in doing so, they are not going to get stung for a further payment down the line.
Why not ask the employee to sign a simple waiver and save some money? Whilst a waiver may have some deterrent effect to an employee ignorant of the law, it will only take one call to an employment advisor, or even a simple Google search, for them to realise that such a waiver as no legal effect whatsoever. This is an extremely risky strategy and not advisable where an employer is handing over an enhanced termination payment.
How much do I offer? This is completely up to you. Factors which often influence how much employers offer include the following:
The amount that would have to be paid to the employee in any event on fair termination of their employment (such as wages, notice pay, redundancy pay and holiday pay);
The strength and value of any potential claim they might have in a court or tribunal;
Personal knowledge of the employees character – what you think they will accept and the likelihood that they will pursue a claim; and
How much you are prepared to pay rather than take your chances defending a court or tribunal claim.
There are also non-financial incentives that could be offered such as an agreed reference, payment in lieu of working notice, writing off training costs and outplacement support.
If you require assistance, we are on hand to advise you in relation to an appropriate settlement amount taking into account the circumstances in which the Settlement Agreement is offered.
How is the payment taxed? Taxation of termination payments has recently become more complex.
Any contractual payments such as holiday pay, notice pay, wages and bonus payments should be subject to tax and NICs in the usual way.
If the employee has worked their full contractual notice period, it is likely that any redundancy payment or remaining goodwill termination payment may be paid free of tax up to £30,000.
If the employee has not worked their full notice period, the remainder of the termination award must be split into what is known as “post-employment notice pay” (PENP), which is subject to tax and NICs, and the remainder, the balance of which may be paid tax-free up to £30,000. HMRC has set out detailed guidance on the calculation of PENP in accordance with a defined formula. It is extremely important that this is followed sought and termination payments are subject to the correct tax treatment. Failure to do so can amount to a criminal offence therefore advice should be sought where there is any concern.
How do I go about proposing a settlement? You can make your proposal verbally or in writing (a combination of both is usually best so that you can ensure that the employee understands what is happening and there is no confusion about the process) at any time. We can advise you through this process and assist with the drafting of appropriate correspondence to send to the employee.
What happens if the offer is not accepted? Can the offer be used against the company in court or at a tribunal? If the offer is not accepted, employment continues until terminated by either party in circumstances that may, or may not, give rise to a claim. The law does afford some protection to employers in allowing certain settlement negotiations to take place without the fear of the offer being wafted before a judge in any subsequent legal proceedings. It is good practice for all settlement discussions and correspondence to be clearly expressed as “without prejudice” to any claim. This means that if negotiations break down, it should in effect be as though the discussions never happened. However, this will not be sufficient in all circumstances, in particular where there is no existing dispute between you and your employee. Where there is no dispute, section 111A of the Employment Rights Act 1996 provides additional protection for employers by permitting what is known as a “protected conversation” to take place with an employee in relation to the termination of their employment that cannot be referred to in an employment tribunal. However, it is not possible to have protected conversations in respect of all kinds of claims. For example, discrimination, harassment and whistleblowing claims are not covered by section 111A. It may well be that the “without prejudice” rule could apply in the circumstances or there may be some risk if you decide to go ahead with negotiations. You should always seek advice where you are concerned.
Can I rely on a standard-form Settlement Agreement document? Reliance on standard documents is risky. Any Settlement Agreement should be customised to the particular employee. It is becoming increasingly important to ensure that the drafting of the settlement agreement fits with the particular circumstances of termination. In the light of the #metoo movement, the use confidentiality clauses should be carefully considered in respect of certain kinds of claims. Further, it is extremely important that the law in relation to the tax treatment of PENP is complied with and the correct taxation rules are applied to the termination payment.
Get in touch If you would like more information on exit negotiations, settlement agreements or employment law generally, please contact Melanie Rowe on 01872 227006 or by email