Hints and Tips

There has been a rise in reported cases involving social media from employment tribunals in the last year.  Most of the cases arise following employee terminations for online posts or comments, which are deemed by the employer to be offensive and acts of gross misconduct.  Unfortunately this then leads to claims of unfair dismissal against the employer.   

Damage to reputation is a key consideration for employers when dealing with these social media comments, as they can easily be made public, even where privacy settings are in place, as a result of being forwarded on to others, printed off and shared, or intercepted.  However, to argue reputational damage as a reason to dismiss, employers will need to show that the risk is real.  Making an assumption that reputational damage will automatically follow is not the correct approach.

Many employees claim their right to freedom of expression under the law (Article 10 of the European Convention on Human Rights).  However, UK Tribunals have found that certain employee remarks on social media sites are not protected by the provisions of this law, for example ‘Preece v. J.D. Wetherspoons plc’ (ET Case No. 2104806/10) and ‘Crisp v. Apple Retail UK Ltd’ (ET Case No. 1500258/11).

The overwhelming conclusion from these cases for many employers is that social media policies are key if they are to defend a claim.  However, to be effective in practice, the policy must 'fit' the business and set appropriate standards to be complied with, in context.

Therefore, employers should:

-       Have a social media policy that gives specific examples of the types of conduct their policies target, such as not giving away trade secrets or not disclosing protected customer;

-       Ensure they make all staff aware of the policy and its details;

-       Follow a fair process when investigation and hearing any case;

-       Take appropriate HR advice.

Leave a comment to let us know what you think, or iIf you would like to discuss this in more detail, please contact our HR consultants at This email address is being protected from spambots. You need JavaScript enabled to view it.

There can be many aspects to a recruitment process to identify the right person for the job.These can include asking the candidates to

•     undertake various tests applicable to the role;

•     undertake psychometric tests to examine personality, ability and aptitude to determine their suitability to the role and wider organisation;

•     attend interviews. 

When done well, the recruitment process identifies the correct candidate.  However, when done badly it can lead to the wrong decision being made.  By careful planning and preparation, along with conducting skilled tests / interviews, you will dramatically reduce the chances of this happening.  This article looks into some of these main elements in more detail.

Step 1 - Careful Planning

1.  Ensure you know what you looking for.

•     Have a job outline and a person specification in place.  These do not have to be overly complex, they should simply be of enough detail for a candidate to know what you are looking for when applying for the job and for you to assess the candidate against.

2.  Decide how you will ask for the information.

•     Will you simply ask for CV’s to be sent in from candidates, or will you have an application form (this could be a general form for use in all roles, or one that is specifically designed to each role)?

3. Decide on the appropriate selection methods you will use?

•     Firstly, if you have a large number of candidates you may want to create a shortlist using the information gained from CV’s / application forms.  Remember, ensure you base any shortlisting against the criteria from the job outline and person specification.  Only interview those candidates who stand a reasonable chance of success.

•     Will you need specific tests for the role?  For example, tests can be created to assess typing speed, grammer, specific software package skills, etc.  Some organisations also use psychometric tests (as outlined previously).

•     What type of interviews will you hold?  Options include:

o   Formal interviews, using planned questions to explore the selection criteria;

o   Less structured, informal interviews to exchange information and to get to know candidates.

The majority of organisations are known to use either formal or a mix of both as informal alone rarely form an adequate basis for fair comparisons.  Remember, take care to avoid personal matters which may infringe a candidate’s right to privacy.

4. Decide on how you will score / asses the candidates?

•     Consider using a scoring system as this makes it easier to compare candidates.  Keep it as simple as possible, for example:

o   0 if the candidate provides no answer / evidence;

o   1 if the candidates provides a partial answer;

o   2 if the candidate provides the full answer you are looking for.

Step 2 - Careful Preparation

1. Tests

•     Prepare each test and have someone who was not involved in the preparation to undertake the test.  This ensures any flaws / issues are ironed out before they are used by the candidates.

2. Interviews

•     Appoint the interview panel.  Always use 2 or more people to interview.  This will not only help you check impressions of the candidates and reach a balanced view, it also helps protect you against any accusation of unfair treatment.  It is usual for 1 member of the panel to be the line manager, also where possible look at having a ‘mixed’ panel, e.g. gender, again to help protect against any accusation of unfair treatment.

•     Ensure that the panel are appropriately knowledgeable about the job to be able to conduct the interview and therefore make qualified judgements against the criteria. 

•     Prepare a standard set of questions.  Use the criteria to create the questions and ensure the questions will bring out enough detail to fully assess the candidate against the criteria (Refer to appendix A).  

•     Assign roles to the panel.  Agree who will perform the welcome and introductions, and who will ask each of the questions.

•     Plan each interview to last an appropriate length of time.  Too long an interview can result in loss of concentration whereas too short an interview can lead to essential information being missed.

3. Decide when and where to hold the tests and interviews.

•     Ensure they are held where you and the candidates will not be disturbed.

•     Ensure all the necessary facilities are available.

•     Allow time between tests and interviews.  This allows the candidates to be fresh and also allows you to complete your notes and deal with any urgent business.  Also remember to allow for breaks between candidates.

•     Do not try to see too many candidates in one day.  Our experience has shown us that six in a day is manageable.

4. Send written instructions to candidates.

•     Make sure candidates know what the job requirements are.

•     State the ‘format’ of the day i.e. the timings of tests / interviews, where they are to be held, what time to arrive and who to ask for.

•     Tell candidates what to expect and what preparation they need to do.

Step 3 - Conducting the Tests / Interview

1. Welcome the candidate.

•     Put the candidate at ease.

•     Outline the structure of the process.

•     Introduce everyone involved in the process, explain their roles and their contributions to the process.

2. Conduct the tests

•     Ensure candidates are aware of the time they have for each test and that a clock is in the room for them.

•     Remember to remove all finished tests / answers / paperwork / files to be reviewed at the end of the process, and reset the tests ready for the next candidate.

3. Conduct the interviews

•     Ask the set questions prepared previously.  In additional, look to identify points from each candidate’s CV or application form that will need probing or clarification.

o   Questions can be of many types as outlined below, make sure you ask the relevant type of questions to get the answers you require:

Ø   Open questions which cannot be answered with a simple ‘yes’ or ‘no’ encourage candidates to talk. Good for exploring and gathering information;

Ø   Probing questions (e.g. “Exactly what happened next?”) aim to clarify what is meant by the answer to an open question.  Good for checking details already known or given in response to an earlier question, or exploring a candidate’s answer further;

Ø   Closed questions (e.g. “Would you be able to start next week?”) are used to establish facts and clarify specific points.  Good for finding out single facts or restricting a candidate who is rambling;

Ø   Reflective questions (e.g. “Am I right in saying your work involves you in...?”) repeat what the candidate said. Good for checking your understanding, summarising and leading to a close;

Ø   Situational questions (e.g. “Suppose you were asked to do...?”) pose alternative scenarios or viewpoints.  Good for getting the candidate to consider different possibilities or ways of working.

o   Questions may take the form of

Ø   Seen questions: where candidates will be given the questions at the interview and have a limited amount of time to prepare an answer prior to the actual interview;

Ø   Unseen questions: where candidates are simply asked the questions at the interview.

•     Avoid destructive interviewing techniques e.g.:

o   Offensive remarks (e.g. “You weren’t paid much in your last job”);

o   Personal remarks (e.g. “I like the colour of your jacket”);

o   Multiple questions (e.g. “When did you do that, why, what was the outcome...?”).  Multiple questions can be used to test listening ability, concentration and intelligence, but often just lead to confusion;

o   Unfocused behaviour is unproductive and rude. For example yawning, gazing out of the window, writing letters, taking telephone calls or interrupting the interview to deal with ‘more urgent’ matters;

•     Listen actively and concentrate on what is being said.  Avoid thinking about how you are going to respond or phrase the next question and resist the temptation to talk too much.

•     Observe behaviour.  You may be able to tell if candidates are confident, or are unsure of their ground.  Behaviour such as fiddling fingers, tapping feet or avoiding eye contact can be useful indicators.

•     Avoid jumping to conclusions.  Check any impressions you form by asking a probing question

•     Ask candidates if they have any comments or if there is anything they wish to ask.

•     Keep detailed notes to help you remember the individual candidates.

o   The candidates you see first and last tend to be remembered better than the others.

o   Notes provide the information you need for the assessment and will also act as evidence if decisions need to be justified.  Under the Data Protection Act, candidates have the right to access your notes. Only make notes of factual matters or your assessment of the individual in relation to the job requirements and selection criteria.  You must be able to justify the selection of one candidate ahead of others.

•     Summarise your notes after each interview, while it is fresh in your mind.  Give the candidates an overall assessment / mark for each of the tests / selection criteria / questions. 

•     Do not allow any interruptions other than those of an emergency nature.

4. Bring the interview to an end.

•     Establish whether or not the candidate is still interested.

•     Confirm that referees may be contacted.

•     Tell the candidate how and when the decision will be made.

•     Check you have accurate contact details.

Step 4 – Making the decision

1.   Assess the evidence for each candidate against the selection criteria.

•     Deciding too soon is an elementary mistake.  Judgement should be suspended until all the interviews have been completed.  .

•     Use candidates’ scores, any other evidence you have collected, and your judgement where this is required to break a deadlock.

2.   Inform both successful and unsuccessful candidates of the outcome.

•    You must make it clear if the decision (and offer) will be contingent on things which you have not yet been able to assess (e.g. references or a qualifications check).

•     Back up any phone calls with written confirmation.

•     Try to provide brief, factual and helpful feedback to unsuccessful candidates.

If you would like to discuss this in more detail, please contact our HR consultants at This email address is being protected from spambots. You need JavaScript enabled to view it.

When does an employee have a contract of employment and what should it contain?  Read further to find out.

An employee always has a contract of employment with their employer and while the employee may not have anything in writing a contract will still exist. 

An employer and employee can agree to whatever terms they wish to be in the contract but an employee cannot normally agree to a contractual term which gives fewer rights than they have under law (called statutory rights).

All employees, irrespective of the number of hours they work, are entitled to a written statement of their main terms and conditions of employment within two months of starting work. 

The written statement should contain the following information:

·         the names of the employer and the employee;

·         the date when the employment (and the period of continuous employment) began;

·         the scale or rate of pay and the intervals at which it is to be paid;

·         hours of work;

·         holiday entitlement;

·         entitlement to sick leave and sick pay;

·         pensions and pension schemes;

·         the entitlement of employer and employee to notice of termination;

·         job title or a brief job description;

·         disciplinary and grievance procedures;

·         where it is not permanent, the period for which the employment is expected to continue or, if it is for a fixed term, the date when it is to end;

·         either the place of work or, if the employee is required or allowed to work in more than one location, an indication of this and of the employer’s address;

Other elements can be included in the written statement.

Some employers treat new employees as being in a probationary period when they first start work and try to argue that during this period employees do not have the usual employment rights, for example, the employer does not have to pay statutory sick pay, statutory maternity pay or pay in lieu of notice. There is no such thing in employment law as a probationary period and the employee will start to acquire their statutory rights from the first day of their employment not from the time when a probationary period is over.  Probationary periods are primarily used to clarify that new employees are expected to achieve certain standards within a specific time period.

If you would like to discuss this in more detail, please contact our HR consultants at This email address is being protected from spambots. You need JavaScript enabled to view it.

Until recently, employers could retire any employee simply because they were aged 65 or over, pretty much without question.  The only provisos were that employers gave at least six months' prior notice and that they considered any request by the employee to work on.  This was known as the default retirement age (DRA).  Although permitted by law, the use of the DRA did constitute discrimination on the grounds of age and as a result it has now been abolished. 

Therefore, employers are now left with two options.

Option 1 - Have no fixed retirement age

Employers can abandon the use of fixed retirement ages altogether and allow employees to remain in work for as long as they want, provided they remain capable of doing their job.  To help workforce planning employers should consider the use of regular appraisals and build into them discussions about the employees future aspirations and short, medium and long-term plans to establish their intentions. 

But what happens to an employee who is unable or unwilling to retire voluntarily and whose performance or health has deteriorated significantly?  Employers must deal with such a case in the same way for employees of all ages i.e. by the appropriate disciplinary, sickness absence or capability procedure.  Therefore if the issues do not improve there may be a justifiable reason for dismissal.

Of course, as in cases such as this, the dismissal carries the risk of having to defend a claim before the employment tribunals should the employee be particularly unhappy. 

Such risks can be minimised by adopting a proactive and robust approach to the management and measurement of performance and absence (which, of course, must be carried out in respect of all employees, regardless of age, as to focus solely on older employees will in itself constitute discrimination).

Option 2 - Retain a fixed retirement age

The abolition of the DRA removes only the automatic and unquestionable right to retire an employee because they are 65 or over.  Employers can still choose to operate their own compulsory retirement age (whether that be 65 or any other age), but only if it can be objectively justified as being 'a proportionate means of achieving a legitimate aim'.

'Legitimate aims' may include workforce planning (for example, to ensure recruitment opportunities within the business), economic factors such as the need for efficiency, or other factors such as health, welfare and safety.  To pass the proportionality element of the test, the discriminatory effect must be significantly outweighed by the importance and benefits of the stated aim and there must be no better, alternative way of achieving that aim.

Employers must be ready to justify a fixed retirement age should it ever be challenged.  The issues would ultimately be determined before the employment tribunals, with the onus of proof lying squarely on the employer who must set out clear and robust evidence that compulsory retirement, and the particular age adopted, is or was the most proportionate way of achieving the stated legitimate aim.  That will not be an easy task.

Summary

The removal of the DRA has replaced certainty with an element of uncertainty, whichever of the two options is adopted.  The first option requires no immediate action, but improved management will be required throughout an employee's career (and in particular at the end of it) and it will introduce doubt as to the timing of a retirement.

The second option on the other hand provides certainty as to the timing of that retirement, but uncertainty as to whether it will in future be challenged by an affected employee and, if so, whether it will stand up to judicial scrutiny.

If you would like to discuss this in more detail, please contact our HR consultants at This email address is being protected from spambots. You need JavaScript enabled to view it.

There are two main questions we're always asked when winter approaches: 'isn't it too cold to be working here', and 'how do we manage employees that don't attend work due to the weather'.

Health and safety legislation ensures that all employees, regardless of where they work, have working conditions that are fit for their needs and do not jeopardise their health and wellbeing.  Section 21 of the Health and Safety at Work Act 1974 states that temperatures in workplaces should fall no lower than 16 degrees C, or 13 degrees C where workers are involved in physical activity.

What about employees who don’t turn up for work, or want to leave work early, due to the adverse weather conditions such as snow?  The legal position is that employers are entitled to dock pay of employees who fail to attend work due.  However, is this the right thing to do?

In cases of heavy snow falls and ice, the police usually advise people not to travel unless journeys are absolutely necessary.  Also, the adverse weather conditions can cause huge delays across the road and transport networks.  Bearing both these things in mind, it could be seen as very unfair if an employer decided to dock pay from employees who failed to attend work.

Our view is that employers should look at the situation pragmatically and show empathy with employees.  Research shows that being flexible and showing trust will pay off in the long term, with employees more motivated and going the extra mile when they are in work.  There is nothing in it for the employer to require the employee to spend all day trying to get in or for them being stuck for hours trying to get home.

Where business can be affected regularly by adverse weather conditions it is recommended employers have a policy in place.  Many employers still rely on day-to-day managers making ad-hoc, discretionary decisions, on whether employees should attend work or when they should leave work.  Having a policy in place lets employees know exactly where they stand, clarifies the situation for managers, and avoids the potential of legal risks such as discrimination claims.

Both sides need to be realistic about what's possible in terms of expectations for employees attending work and what the employer can afford.  Employers should always communicate with their employees to ensure they understand the rationale and how the policy will be implemented.

If you would like to discuss this in more detail, please contact our HR consultants at This email address is being protected from spambots. You need JavaScript enabled to view it.