First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

I have a query regarding the anonymity of complainants/witnesses, particularly relating to disciplinary cases.

The original question related to two staff members complaining separately about a work colleague but neither of them wanted to be identified. In summary the answer outlined that the employer should investigate the reasons for the anonymity request and balance the complainant’s right of confidentiality with the accused right to a fair hearing.

The answer provided was very helpful, although it was silent on the issue of the Data Protection Act and personal data. Statements given by complainants or witnesses will contain information about the behaviour or actions of another employee and I wondered if that employee has particular rights under DPA (e.g. subject access) to see what has been written about him/her, or does the data belong to the witness/complainant or is there a balance to be considered?

I appreciate that all material may be required to be made available at Tribunal, but I am thinking here more of the internal disciplinary process.

Posted in: First Tuesday Q&A NI on 02/07/2013 Ideally all witness statements and other documents to be relied on should be made available to the employee before a disciplinary hearing. This helps to give the employee a full picture of the nature of the allegations and the case they have to meet. Obviously, if the employer has given a promise o...

Should Whistleblowing be added as a new policy to employee handbooks or as an addition to, for example, our Data Protection policy?

Posted in: First Tuesday Q&A NI on 05/02/2013 The whistleblowing legislation imposes no positive obligations on employers to encourage whistleblowing or to implement a whistleblowing policy. It merely requires them to refrain from dismissing workers because they have made a "protected disclosure" or subjecting them to any other detriment becau...

Payment of performance based bonuses - How do we stand for those employees off on maternity leave during the year ? Also can we pro-rata an employee off on sick leave?

Posted in: First Tuesday Q&A NI on 05/02/2013 A performance related bonus can measure “performance” in many different ways, for example, on the employer’s performance as a whole, the individual’s/team’s performance against certain criteria or on the employee’s attendance record.(a) Maternity Where a contractual bonus is paid in recognition of ...

A Manager wishes to issue the following memo to all staff;

It has been decided that, in all disciplinary meetings all communications must be in English. It will not be permitted for anyone to communicate in any other language. This will ensure that everyone present knows what is being discussed.

Is there any way in which this can be justified without breaching race discrimination law?

Posted in: First Tuesday Q&A NI on 05/02/2013 While we are unaware of the background leading you to consider issuing this memo, you are likely to struggle justifying its position, particularly as, we assume, you have employees who are not fluent in English. A core principle of carrying out a fair disciplinary procedure is for employees to unde...

Is it acceptable for an employer to gain access/view an employee’s Facebook, Twitter account etc, particularly if it’s written in a company policy?

Posted in: First Tuesday Q&A NI on 08/01/2013 Social media activity (or employee comments posted thereon) is not necessarily private or restricted to that employee (and his “friends”); employers can therefore look at employees’ social media sites. It is important and useful, however, for an employer to have a clear social media policy in place...
This article is listed under the following topics:
Policies and Procedures

We dismissed a male employee a year ago for sending intimidating messages to a female employee. He has now posted a further offensive message on the same employee’s facebook page. At the time the employee left he signed a compromise agreement. What should we do following this female member of staff drawing this to our attention?

Posted in: First Tuesday Q&A NI on 06/11/2012 An employer has a duty of care towards its employees, but can this be extended to protection from beyond the employment? The Sex Discrimination Order 1976 (Amendment) Regulations (NI) 2008 amended the definition of harassment. The new provision makes an employer liable for third party harassment. I...
This article is listed under the following topics:
Unfair Dismissal Discrimination and Equality Policies and Procedures

We work in a very dangerous environment with knives and machinery and want to implement a drug & alcohol policy that would allow for random, with cause and pre-employment testing. Can we do this with Union agreement and without the consent of each employee?

Posted in: First Tuesday Q&A NI on 01/05/2012 Health and safety considerations are very important in circumstances such as this as employers have, under common law and statute, a duty to ensure, so far as practicable, the health, safety and welfare at work of their employees. Therefore, while drug and alcohol testing is often a controversial a...
This article is listed under the following topics:
Health and Safety Contracts of Employment Policies and Procedures

Are organisations required to provide feedback to unsuccessful candidates? Can we have a policy which states feedback will only be provided to candidates who reach the final round interview?

Posted in: First Tuesday Q&A NI on 01/05/2012 There is no strict obligation in Northern Ireland to offer unsuccessful candidates feedback and there doesn’t appear to be much by way of guidance in the Codes of Practice applicable in NI. The Equality and Human Rights Commission’s Code of Practice (which was drafted to sit alongside the Equality ...
This article is listed under the following topics:
Policies and Procedures Recruitment and Selection

Must a staff handbook be provided in hard copy or is it sufficient to refer employees to policies on your company’s intranet?

Posted in: First Tuesday Q&A NI on 01/05/2012 The Employment Rights (Northern Ireland) Order 1996 sections 33 – 35 deal with written particulars that employees are entitled to receive. Some specific matters are to be contained in a written statement of particulars (i.e. the employee’s contract of employment). Other matters can be included in o...
This article is listed under the following topics:
Policies and Procedures Recruitment and Selection