Learn HR, author of our HR tips series, present their top ten tips for a claim-free new year.

1. Three-two-one:

Several of our clients have looked at the new three-step statutory discipline and dismissal procedures that came into force just over a year ago and concluded that there is nothing to worry about. Their existing procedures require them to give reasonable notice of formal disciplinary hearings, arrange for the employee to be accompanied, present the complaint, consider the response, give their decision and offer an appeal.

Just as the statutory procedures demand. But they fail on two points. Their domestic procedures do not require them to summon the employee in writing, nor do they provide for any written evidence to be sent in advance. The first error would be to make a dismissal automatically unfair whilst the second might be to do so since it suggests unreasonable behaviour. So check your domestic procedures carefully against the statutory ones!

2. Discrimination matters:
It is now unlawful to discriminate on the grounds of sexual orientation. It is, for example, unlawful to refuse someone a job because they are homosexual. But it is also unlawful to harass someone over their sexual orientation whether or not what is suggested is true.

3. Time to kick the habit:
Do long-term smokers have a right by custom and practice to smoke in the workplace despite plans to ban smoking? No, they do not. There is enough medical evidence of the harm caused by passive smoking that the employer is virtually obliged to ban workplace smoking on health and safety grounds. And there is no obligation to provide a smoking area. Hard luck, smokers – but look at the money your employer is saving you. Better than a pay increase!

4. Keeping in touch:
There is a strange belief being expressed that, if you visit your employees who are absent through sickness, you breach their right to privacy provided by the Human Rights Act. This is nonsense. The good employer keeps in regular contact with sick employees to check progress and to enquire whether they need any help. Indeed failure to keep in touch could count against the employer if the employee ultimately had to be dismissed because of long-term absence. So keep in regular touch with your sick employees, but give them a ring or let them know when you are calling round, and do not do so more than once a week unless there is a good reason for doing otherwise.

5. Sick of absence?
The common and indeed most effective tactic for managing absence is the return-to-work interview, promptly and properly conducted. But try something else as well. When people at all levels talk about the employee who had a mysterious and sudden illness while the Test Match was in town, they usually smile. Criticisms are made but are muted.

There is a Jack-the-lad feeling about it all. However, what was the cost to the employer of that day off and how would the employer react if an employee fiddled his or her expenses by that amount? I guess the word "fraud" would be used alongside "gross misconduct". You need not accuse an employee of fraud, but at least indicate that a day off work without good reason represents just that.

6. All change:
A common question that we are asked is, if a contract of employment is changed in some way, does a complete new contract have to be issued? No, it doesn't. It is sufficient to issue a brief and prompt note to the employee. A common example is the short note that I hope you will get, telling you of a pay increase. This is a change to your contract.

7. Contracts – the rocky road:
Can the employer change the terms of the contract, for example hours of work, if there is a really good reason for doing so? Well, there is a long and complex process for ending the contract and offering another but it is fraught with peril and should be taken only after professional advice has been taken, and it is in any case not good for employee relations. One party cannot change a contract. It would constitute a breach of contract. The best thing is to gain the employees agreement to the change either by negotiation or by asking nicely.

8. References:
Is an employee entitled to see a reference you are writing about them? Strictly speaking, no, but you may as well because they will gain this when they start work with the new employer. Life is much simpler if you are honest with people so why not show the reference to the employee before sending it. Take the opportunity of correcting any errors and thus keep yourself out of trouble.

9. Preparing for new legislation:
Finally – prepare for age discrimination legislation, which comes into force in October 2006. The precise detail of the new law is not yet clear but you can be sure that:

• a retirement age under 65 will be unlawful unless objectively justified
• you will have to give employees six months notice of their retirement, regardless of their age
• employees will have the right to ask to work beyond that date provided they do so within the period ending six weeks before it
• you will have to take seriously all requests to work beyond a notified retirement date
• employees will be able to claim unfair dismissal or a redundancy payment regardless of their age.

So watch out for breaking news on this legislation.

10. Changing mindsets:
In order to come to terms with age discrimination legislation, start work now on changing your own mindset and the culture of the organisation. For example

• accept that employees, regardless of age, may have the competencies you need when recruiting, promoting or considering for training
• much older and much younger people probably can do the things you do
• length of time in a job does not give greater experience if that experience has not varied.

Have a good and legislation-free 2006!

See the full range of 2005 HR tips.