Monday, December 3, 2012

Trailblazing (a.k.a. making communications count)

Hello and welcome to our very first blog post!  We hope you find it useful.  Keep an eye out for future posts on key employment topics or follow us on Twitter for the latest updates...


Here we’re going to explore one of your most effective employment law tools…. a letter

A letter…… has the KSA team gone mad? Why should I bother?

Letters are a bit outdated aren’t they?  Not to mention costly – have you seen the cost of stamps now?  In the push for increased business efficiency and the holy grail of the so-called “paperless office” it is all too easy either to overlook writing to our employees altogether or to fire off a quick email that sinks into your and their “Deleted Items” folder and proves tricky to find again if ever needed.

However, there are occasions in employment law when a written communication is mandatory and many, many more instances when it is a good idea to write to an employee even if it is not strictly required.


5 things required by law to be communicated to an employee in writing (these are not the only 5, just a selection of the more commonly encountered ones):

  1. A written statement outlining the reasons for dismissal of an employee (Employment Rights Act 1996 s92(1)).
  2. A letter to an employee representative and/or individual employees giving details of a Transfer of an Undertaking (TUPE Regulations 2006 Reg13(5)&(11)).
  3. A notification to a pregnant woman confirming the date on which her maternity leave will end (Maternity & Parental Leave Regulations Reg7(6)).
  4. A decision concerning an employee’s formal request for a flexible working arrangement (Flexible Working (Procedural Requirements) Regulations 2002 Regs 4&5).
  5. A written statement detailing how a redundancy payment has been calculated (Employment Rights Act 1996 s165(1)).

5 occasions where we highly recommend communication in writing:

  1. Notifying an employee of the outcome of a disciplinary hearing.
  2. Recording that particular performance concerns have been raised with an employee and the action that employee is expected to take to rectify the issues.
  3. Changing an employee’s working hours.
  4. Recording the outcome of a grievance hearing.
  5. Summarising a discussion with a disabled employee about reasonable adjustments that may be made to allow them to carry out their role.

Is a letter really necessary?

In saying that there is a legal requirement for a “letter”, that is not to say that it has to be printed on a piece of paper, put in an envelope and sent to the employee via Royal Mail.  It could be passed to them in person or the necessary information can be emailed.  What is essential is that the sender and the recipient appreciate the importance of the information and take any necessary action prompted by its contents.
In many cases, a physical letter in an envelope is more likely to be read and kept safely than an email but that is not to say that an email will never do.  Provided an email makes its significance clear, it can be used as effectively as a physical piece of paper – for example “This email contains important information concerning your terms and conditions of employment and you should keep a copy of it with your employment contract for future reference”.

Once the written communication has been delivered to the employee, there is nothing to stop the employer from keeping its own record electronically, preferably in a dedicated folder assigned to that individual rather than languishing in “Sent Items”.  See here for a blog we’ve discovered that contains some interesting nuggets of information about the quest to become “paperless”...

What happens if you don’t write?

The occasions where written information is required but is not given will usually lead to a modest monetary award by an employment tribunal (although the failure to provide a written redundancy calculation can lead to a criminal penalty!).  At the present time, employees or ex-employees who have experienced one of these relatively minor infringements can apply free of charge to the Employment Tribunal for the matter to be determined and an award made in their favour, but fees to issue claims will be introduced from next summer.

The implications arising from occasions where communication in writing is recommended but is not given can be altogether more difficult to quantify.  This is because a lack of written communication may indicate an inadequate procedure in cases where demonstrating fair procedures are fundamental to defending claims (unfair dismissal being the prime example).  It also leaves the question of what actually happened at the mercy of the memories of those involved.  You may rest assured that your individual employee’s memory is likely to be considerably sharper than that of their manager’s, especially when recollections are being made several months later under oath or affirmation in front of the Employment Tribunal.   All the more reason to ensure that there is an accurate written record in the possession of all relevant parties – the “good paper trail”.

Those of you who’ve attended our management development sessions will know that we contrast this with a “bad paper trail” As advisers we’ve seen horrendous bad paper trails (doodles, scribbles, offensive words – we’ll leave that to your imagination).  Make sure that written communications are considered and carefully written. A useful rule of thumb is “would I mind an Employment Tribunal looking at this letter/email/text message/scribbled note?  If the answer is no, it’s a good paper trail. If yes, it’s a bad one!

Some employers think they can protect their business by keeping things informal. This is a misconception that can do far more harm than good.  By ensuring that you leave a good paper trail, it will usually be a help rather than a hindrance. The circumstances in which written communications can be genuinely off the record (referred to in legal terms as “without prejudice”) are relatively narrow and something that we will cover in a future blog post.


Blank page syndrome?

If you’re still not quite sure what to write, a good starting point is often guidance produced by the Government or an associated organisation such as Acas.  See here for an example.

If a standard document doesn’t cover the complexity of the situation you find yourself in, it might be time to get advice before you write.  A template letter tailored to your business for future use or a specific “one off” letter may be a worthwhile investment for the protection of the business.

Contact us to discuss your letter writing requirements!