What are HR policies and procedures? Written description of rights and responsibilities Policies are a statement of how a company will deal with an HR matter: May set out values of a company e.g. equal opportunities, anti-harassment and bullying Rules on how employees are expected to behave e.g. dress code, anti-discrimination, use of internet and email Protect employer’s interests e.g. confidentiality rules Set out rules on good business conduct e.g. making or taking gifts

What are HR policies and procedures? (2) Give more detail on matters set out in employment contract e.g. sickness, holiday, car and bonus policy Deal with administrative items and processes e.g. how to claim expenses, car parking (housekeeping matters) Procedures describe the process by which an HR matter will be dealt with e.g. capability and disciplinary and grievance procedures Procedures may be part of a policy e.g. whistleblowing policy and procedure

Why introduce policies and procedures? Protect employer’s interests Set out employee’s rights and entitlements e.g. benefits Set out what is expected of employees in terms of conduct e.g. anti-discrimination Employer’s desire to develop a more formal and consistent approach when dealing with issues e.g. regarding flexible working – to assist line managers The need to comply with legislation and minimise the risk of a legal claim - may safeguard employer in the event of a claim

Key policies and procedures Contractual Remuneration Sick pay and sickness absence Holiday entitlement and procedure Expenses Company car Confidentiality Non-contractual Equal opportunity Dignity at work including anti bullying/harassment procedures Health and safety: policy plus reporting requirements Maternity, adoption, paternity and parental leave Flexible working Disciplinary and grievance

Key policies and procedures (2) Contractual Data protection Inventions Post employment restrictions Email and internet policy inc. monitoring Bonus? Alcohol and drugs? Non-contractual Appraisals Redundancy Retirement Dress code Whistleblowing Administrative procedures ‘housekeeping’

Legal status Employer must consider the legal status of each policy and procedure – should it form part of the employee’s contract of employment or not? Contractual – will give employer greater power to enforce it e.g. confidentiality, data protection, email and internet use Non - contractual – will give employer more flexibility: employer’s failure to follow the policy or procedure will not amount to a breach of contract; employer may amend the policy without obtaining employee’s consent e.g. disciplinary and grievance procedures Note: a non-contractual, discretionary policy is still subject to the requirement that employer operates it consistently with the implied term of trust and confidence

Legal status (2) Uncertain status: if a dispute arises a Court or Tribunal will consider the following factors: Is the subject matter suited to a contractual term e.g. matters affecting an employee’s remuneration and benefits cf. matters relating to administrative rules and mission statements Is the provision expressed in terms of rights and obligations or in aspirational terms e.g. equal opportunities policies usually refer to the employer’s aims and objectives cf. redundancy policy expressed in terms of ‘entitlement’ is likely to be contractual Context and circumstances in which a particular policy was introduced

Practical tips Where policy or procedure is to be contractual: Clearly state this Build in some flexibility e.g. X will ‘normally’ or ‘usually’ occur Avoid absolutes but use phrases such as ‘where reasonably practicable’ Where policy or procedure is to be non-contractual: Avoid using words such as ‘entitlement’ or ‘power’ Make clear that consistent application of a policy over time does not imply intention that it is contractual (may not always work i.e. effect of custom and practice When new policies are introduced make clear they do not form part of terms and conditions of employment

Remedies for employees If employer seeks to introduce new or vary existing contractual policies and procedures employee’s consent is needed (direct or tacit) If employer seeks to unilaterally impose a new or vary existing contractual policy, the employee may: Claim constructive unfair and wrongful dismissal i.e. resign claim employer’s conduct amounted to a repudiatory breach of contract (Note: not all changes will be repudiatory breaches); or Work under protest and bring claim for breach of contract – only relevant if employee has suffered financial loss; or Declaration and injunction – declaration of entitlement and injunction to restrain employer from imposing the change

Review of policies and procedures Policies and procedures should be reviewed regularly to take account of legal changes, development of the business and best practice – take legal advice If changes are to be made be aware of implications of varying contractual procedures and policies (need for consent) Any revised or new policy should specify the date it becomes effective

HRM 202 HR POLICIES and PROCEDURES With thanks to Barlow Robbins

And finally … Questions and comments?

Key HR Policies and Procedures Joanna Lada-Walicki Barlow Robbins LLP 22 April 2008