People teams need to be aware that postal service delays could inadvertently cause the disruption of important HR processes, legal experts have warned.
While the recent strikes by Royal Mail were not intended to cause delays to HR, the action by postal workers might be one of the most widely reaching and acutely felt strike actions this year.
Royal Mail employees – who went on strike on 9 and 11 December – continue to vocalise their demand for better pay and working conditions after recent talks between the CWU and Royal Mail broke down.
Unless demands are met, three more strike days are planned to follow in the run up to Christmas. This could have some unexpected consequences on important documents relating to employees and the workplace, as many businesses communicate via formal letters in the post in addition to email.
As documents related to grievance, disciplinary or appeal outcomes, invitations to meetings and variations of contract or redundancy or TUPE consultation information could be significantly delayed, People Management consults with employment law experts for best practice in unprecedented situations.
What are the legal risks if delivery of documents is delayed?
A swift peruse of People Management's employment tribunals will show that sending written confirmation of a dismissal is usually the norm, and serves as a written receipt for the employee. But a delay in receipt by the employee may postpone the effective date of termination of employment.
Lesley Rennie, principal employment law solicitor at WorkNest, warns that the date of termination is “crucial” for calculating an employee’s length of service, which “determines their ability to bring an unfair dismissal claim and other entitlements, both statutory and contractual, and the date from which the time limits to lodge an employment tribunal claim start to run”.
Rennie also explains that a dismissal, or notice of a dismissal, communicated in writing is deemed to take effect when the employee has read the dismissal letter or has had the reasonable opportunity to do so. “Generally, a dismissal letter will be taken to have arrived in the normal course of the post and it is assumed that employees will open and read their post promptly once it has arrived,” says Rennie.
With employment law and HR processes, time is everything. Indeed, a timeline for posting relevant information to a consultation process such as a TUPE transfer or collective redundancy – which are happening more frequently in the current economic climate – is crucial.
But Ian Jones, principal solicitor at Spencer Shaw Solicitors, says time limits for compliance with tribunal directions, including case management orders and judgments, almost always run from the date of the letter containing the information to be acted upon. “If postal delays affect delivery within the time limit, then parties may be in breach through no fault of their own.”
In such circumstances, he points out that “the tribunal has power to extend time, either on its own initiative or on application by a party, even if the time for compliance has expired”.
In cases where someone is adversely affected by a delay in delivery beyond their control, “I don’t foresee too much difficulty in getting an extension of time, provided they act promptly to request one”, Jones says.
Echoing this, Yvonne Gallagher, employment lawyer at Harbottle & Lewis, highlights that, for tribunal claims, “there is a strict 28-day deadline for replying to a claim and that period starts the day it is sent out to the employer, so if postal delays mean the documents arrive late, the employer may have to make an urgent application to the tribunal, which adds to cost, or at best have to rush preparation of a defence, which may disadvantage them in their case”.
In case of a deadline being missed entirely, “a default judgment may be issued by the tribunal against the employer and, again, there is expense involved in applying for that to be set aside”, Gallagher explains.
Reassuringly, Ele Wilson, head of investigations at CMP, says that in instances where secure electronic communication is used by legal firms and the situation permits it, "postal strikes shouldn't be an issue”. “Hard copies of materials are rarely used because of the security implications,” she says. “We would only accept evidence for a case via a secure digital platform, for example.”
But a combination of rail strikes and bad weather, which has also been a concern for HR, presents a barrier to having face-to-face meetings, which can be challenging for grievances and general workplace issues that need a more personal touch.
What workarounds can HR implement in case of communication delays?
Jones advises that, for internal matters, such as disciplinary and grievance procedures, employers should follow the Acas Code of Practice on discipline and grievances at work as closely as possible. “For disciplinary procedures in particular, employees should be given reasonable time to prepare before a hearing. This may not be possible if the employer has used post to communicate and there are delays. In such cases, employers should consider putting back a hearing or, in the event of an appeal deadline (for example, to appeal against a disciplinary sanction), extending the time to appeal,” says Jones.
However, if the employer fails to act reasonably, it may find itself at risk of adverse findings should the employee bring legal proceedings, Jones warns, adding: “In the case of dismissal, failure to act reasonably by extending time limits could contribute to a finding of unfair dismissal and, in other matters, acting unreasonably may amount to a breach of contract and could lead to a claim of constructive unfair dismissal by the employee.”
Rennie says there are various ways for businesses to ensure they continue to effectively communicate during the postal strikes: “Hearings can be reconvened to deliver outcomes. Letters can be sent electronically with delivery and read receipts. A two-pronged approach of an email attaching the letter together with a hard copy sent via the ‘signed for’ service to provide proof of receipt can be deployed.”
Finally, she advises employers that are concerned post sent in the last week may not have been received to “proactively contact the recipient employee to check that it has arrived and, if not, to explain the contents over the phone”.
Paul Britton, managing director and solicitor advocate at Britton and Time Solicitors, says: “All employers must remember to be sympathetic, patient and understanding. We all suffer the same issues and, if in doubt, the advice is to always give the ‘benefit of the doubt’ to employees and rearrange hearings where possible and resend documents.”
“If communication channels are already conducted by email only, then the postal system isn’t going to affect normal business practices and staying on the right side of the law,” he continues, adding that, at this time of year, many undergo their annual policy reviews, which presents “a good opportunity to double down on any flaws in the current practices”.