Drafting policies in the #MeToo era

20 Jan 2020 By Daniel Stander

As the volume of self-regulation stemming from the increased attention on harassment and whistleblowing grows, Daniel Stander explains how organisations can make sure their handbooks are meaningful

In the wake of #MeToo and whistleblowing scandals impacting on workplaces, governments and regulators have been encouraging a sea-change in culture towards ensuring employers have suitable policies and procedures in place. This has put a spotlight on the utility of handbooks and suites of key policies.

Businesses have varied reasons for adopting handbooks, including the setting of staff expectations, assisting management in enforcing rules, encouraging staff hiring and retention by showing that the business ‘gets it’, demonstrating compliance with regulations and laws for clients and setting the overall tone of the company. They are a key mode of communication between an employer and its staff; the question is, how can you make the policies effective and meaningful for those who use it?

Pitfalls to watch out for

Given that employment law is in a constant state of flux, handbooks generally cover a vast range of areas in which employers run the risk of ending up with one that is either so legally dense that it is exhausting to read, or too generic and vague that it is of no help at all. 

By illustration, a sickness absence policy need not contain every detail of what may happen in the often complex field of absence management. Including a breakdown of how an organisation uses certain tools like the Bradford factor is likely to be over the top, while omitting basic information such as whether enhanced sick pay is offered will result in an inaccessible document.  

The key is to be concise, and allow for flexibility in how a policy is enforced given the unpredictability of human nature. Ensuring a handbook is stated to be non-contractual is also important to allow employers to depart from it, and update it where necessary, without having to obtain the workforce’s consent.

Training and enforcement

Employers should ensure the handbook isn’t only dusted off and consulted when the need arises, but is something employees, and in particular managers, are made aware of and given training on regularly. 

By seeking feedback on the handbook, a company can take action to ensure it is meeting the desired objectives for adopting it; ie, is the tone working? Do managers feel empowered to make decisions? 

In a tribunal, demonstrating you are a reasonable employer because you have a handbook is not going to persuade the judge if the manager called in as a witness can’t refer to the relevant policy in question. By showing that training takes place and policies are enforced in a consistent and fair manner, employee relations will be enhanced and legal exposure reduced. Prevention is better than cure. 

Handbook audits

It is recommended that employers have their handbooks reviewed by their legal advisers for changes in the law and best practice at least once a year. For many, the last big changes made to their handbook would have been when the GDPR was coming into force. 

By committing to regular handbook audits, businesses are more likely to reduce the risk of employment claims while raising confidence within an organisation that the handbook is a living, breathing document. 

Legislation will come into force this year on statutory leave and pay for bereaved parents; relying on last year’s compassionate leave policy is a likely bust. Likewise, as technology advances impact on the workplace, employers should adapt so they are not wrong-footed. 

Recent cases of employees covertly recording disciplinary or grievance hearings have resulted in some employers considering prohibiting such behavior through their misconduct policies. An effort to include veganism within the protection of discrimination law has also been accepted in the tribunals. 

Even if a change in the law doesn’t necessitate a change in handbook, by having regular reviews an employer can be advised of new best practice and stay on top of their game.

Daniel Stander is an associate in the employment team at Vedder Price 

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