Blake Lapthorn's Employment law team held a seminar on employee morale and motivation at its Chandler's Ford office on Thursday 17 November 2011.

1. Employee Morale and Motivation
an employment lawyer’s perspective

2. Grievances
Session One
Gillian Leach

3. The Aggrieved Employee
poor performance
absence
disciplinary problems
resignations
negative public relations
bad morale
wider disputes among the workforce
constructive dismissal, bullying or harassment claims

4. Drain on the business
falling productivity
frustrated managers
time wasting
customer criticism
ET claims
staff turnover
creates openings for Trade Unions to get involved

5. Sources of grievance
terms and conditions of employment
health and safety
work relations
bullying and harassment
working practices
organisational change
unlawful discrimination
stress and pressure

6. Sources not covered today
disciplinary action
redundancy
termination of a fixed-term
collective grievances

7. Variations
bullying and harassment policy
safeguarding policy
appeals against various decisions e.g. grading
equal opportunities policy

8. The grievance procedure
non-contractual written policy and procedure
gives a framework for process
avoids
– losing enforceability for post-termination restrictions
– claims for damages or injunctions
– claims for constructive dismissal

9. Essentials of the policy and process
how to raise a grievance
with whom to raise a grievance
how to appeal or take the grievance further
time limits for the procedure
explanation of the right to be accompanied

10. Recommended extras
obligations of confidentiality under the procedure
the differences between the informal and formal
stages of the procedure
levels of management who will consider grievances
how and when to appeal
when a decision is final

11. Employment Rights Act 1996
Section 1 statement must include:
...a person to whom the employee can apply for the
purpose of seeking redress of any grievance relating
to his employment, and the manner in which any
such application should be made...
If in a document then the document must be
reasonably accessible to the employee

12. Publicise
handbook
intranet
training

13. Adjustments to awards
employee
– minus up to 25% for failure to raise a grievance
employer
– uplift of up to 25% for failure to follow up a grievance or
apply a reasonable process

14. WA Goold (Pearmak) Ltd v McConnell [1995] IRLR
516 (EAT)
held that there exists an implied term
in all contracts of employment
obliging employers promptly to afford employees a
reasonable opportunity to obtain redress of any
grievances

15. Abbey National Plc v Fairbrother [2007] IRLR 320
failure to follow a reasonable grievance process
would be a breach of the implied term established in
the Goold v McConnell case
sufficient to justify a claim for constructive dismissal

16. General Principles
respond promptly
take grievances seriously
do not escalate unnecessarily
be sensitive
respect confidentiality
allow an appeal process

17. Record keeping
do keep written records
do not breach the DPA principles:
– do not gather information by deception
– ensure records are of good quality
– remove unsubstantiated allegations
– keep records securely
– protect confidentiality

18. Statements and requests for anonymity
investigator should remain neutral
statements must be in writing
ideally have them signed and dated
investigation report can be substituted in exceptional
circumstances

19. Asda Stores Ltd v Thompson [2002] IRLR 245
caution when giving promises of confidentiality to
those giving statements
only grant anonymity in exceptional circumstances
seek corroboration

20. Linfood Cash and Carry Ltd v Thomson [1989] IRLR
235
consider credibility and weight of evidence
interview by manager conducting the hearing

21. Right to be accompanied
contractual or statutory?
arises when the grievance is about a duty owed by
the employer
who?
– colleague
– trade union employee
– certified workplace trade union representative
others in exceptional circumstances

22. Keeping control of the companion
written guidelines including confidentiality
reasonable time to prepare
conduct at the hearing:
– putting the case
– summing up
– respond to opinions but not answer on behalf of
colleague
– confer

23. Investigatory meetings
no right to be accompanied (Skiggs v SWT [2003])
unbiased investigator
avoid witch hunts

24. Overlapping disciplinary and grievance procedures
stalling tactic?
disciplinary can be temporarily suspended
if grievance is related to disciplinary action then deal
with them together

25. False allegations
investigate motivation
consider disciplinary action

26. Appeals
require written grounds
respond promptly
new person to hear it if possible
put outcome in writing
confirm if the decision is final

27. End of session

28. Benefits – motivators and their
pitfalls
Session Two
Gillian Leach

29. bonus
sabbaticals
flexible working
home working
enhanced holiday entitlement
loyalty awards
discount schemes
salary sacrifice

30. Bonus
motivator
can be tailored to support cultural or behavioural
change
can be linked to productivity or profit

31. Bonus - pitfalls
confusion over discretionary v contractual
written rules need to be:
– unambiguous
– not discriminatory
– communicated at the right time
– kept under regular review
issues around parity for:
– absences
– agency workers

32. Sabbaticals
effective way to deal with temporary fall in demand
holds on to skills
ideal for employee who needs some temporary space
e.g. to achieve a personal ambition or care for a sick
relative
pay and benefits can be suspended

33. Sabbaticals - pitfalls
employee must want to have a break
predetermined arrangements for return
written amendment to contract
overlapping absences can make it complex e.g. ill-
health or maternity
some benefits are difficult to suspend on a temporary
basis

34. Flexible hours
reduces unscheduled absences
improved productivity

35. Flexible hours - pitfalls
administration
workflow, continuity and cover
tight written rules
can be inappropriate for very senior or very junior
roles

36. Home working
gives employee more control
reduces unscheduled absences

37. Homeworking – pitfalls
supervision
equipment
Health & Safety
isolation
confidentiality

38. Enhanced holiday entitlement
event driven special days e.g.
– birthday
– celebration
– local community event
– weather and travel conditions
– sporting events

39. Enhanced holiday entitlement – pitfalls
discrimination
workflow, continuity and cover
limitations on discretionary variation
parity with atypical work patterns
interrelationship with other benefits e.g sickness and
maternity leave

40. Loyalty awards
something to share outside workplace
personal
tailored for your culture

41. Loyalty awards - pitfalls
discrimination
parity
discretionary
avoid cash equivalents

42. Discount schemes
open to all
pitfalls
– frustration
– external provider gets the credit
– at mercy of 3T providers
– written rules needed if discount is for employer’s
products or services

43. Salary sacrifice schemes
direct financial gain for employee
pitfalls
– regulatory changes
– finance team needs to be on the ball
– administration costs
– complex to explain

44. End