September has ended up having quite a practical theme. A lot of the problems I see are not especially complicated in themselves; the difficulty usually comes from what happens around them. Decisions are made quickly, people get pulled into matters before roles have been thought through, or something that seemed fairly minor at the time becomes important later. Employment investigations are a good example, so that is where I have started this month. I have also included a few developments worth keeping an eye on as we head into October, as well as a business point that comes up regularly with new ventures: whether incorporating straight away is actually necessary.
Before the investigation starts
When a serious allegation is made against an employee, the natural reaction is to start dealing with it immediately. Somebody senior wants to understand what has happened, managers begin talking, suspension may be mentioned, and people start looking for emails or messages that might be relevant. None of that is unusual, but it can create problems if too many people become involved before anyone has stopped to think about who should actually investigate, who may later need to make a decision, and who should stay out of the matter altogether.
An investigation should be there to establish the facts as fairly as possible: what happened, what evidence exists, what is agreed, what remains disputed, and whether there is a case to answer. In a smaller organisation, that can become awkward very quickly because there may only be a handful of people senior enough to investigate, decide and hear an appeal. If one person receives the complaint, another is involved in the initial discussions, and a third authorises suspension, the business can find itself running out of people who are sufficiently separate from what has already happened.
The same applies to suspension. It may be entirely appropriate where there is a genuine concern about evidence, risk to another person, access to systems, or the integrity of the investigation, but it should not simply follow because the allegation sounds serious. Sometimes a temporary change of duties, reporting line, location or access will deal with the immediate problem just as effectively. The same practical thinking applies to evidence: messages get deleted, CCTV is overwritten, and memories become less reliable, so preserving potentially relevant material at the outset is usually much easier than trying to reconstruct it later.
None of this needs to become elaborate. The useful first step is simply to decide who is doing what, what needs preserving, and whether any immediate measure is actually necessary before the process gets too far ahead of itself.
If a difficult employee matter arose tomorrow, who would do what?
Do you already know who could investigate it, who could make any eventual decision, and who could hear an appeal without having become involved at the outset?
Three employment developments to have in view
ACAS consultation
ACAS is currently consulting on a revised disciplinary and grievance Code, with comments open until 11:59 pm on 23 September. I would not start rewriting policies around a draft Code, but if you regularly deal with employee relations it is worth reading, particularly as this is the point at which employers and advisers can still comment on what the final version should look like.
READ THE DRAFT AND RESPOND →Tribunal time limits
From 1 October, the time limit for most Employment Tribunal claims increases to six months minus one day where the time limit starts on or after that date. For employers, the practical point is fairly straightforward: keep the records. Six months is a long time for people to forget the detail of what was said, and for an email or message that seemed unimportant at the time to become relevant later.
ACAS GUIDANCE →Harassment changes
There are also further changes around sexual harassment from 30 October, including the requirement for employers to take all reasonable steps to prevent it. Employers can also become liable for harassment by third parties such as customers, clients or service users unless they have taken all reasonable steps to prevent it. Businesses with staff dealing regularly with the public may want to look beyond the wording of the policy and ask whether managers actually know what to do if something happens.
ACAS GUIDANCE →I will pick these up again as the changes settle and there is something more useful to say than simply repeating the legislation.
Do you actually need a limited company yet?
One thing I see quite often with new businesses is people incorporating almost immediately because it feels like the natural first step. Companies House makes the process relatively easy, but setting the company up is the easy part. What follows is the time and administration that comes with it: accounts, tax, filings, company records, banking, deciding how money comes in and out of the business and, quite often, paying for professional help with things that would have been much simpler as a sole trader.
For many sole traders there is no particular need to incorporate just because the business has started trading. It usually makes more sense where there is a genuine risk to manage, whether through liability, outside investment, more than one owner, contractual requirements or the nature of the work itself. Tax can form part of the decision, but it is rarely sensible to assume that a limited company is automatically the cheaper or more sophisticated option.
The question I would ask at the outset is simply: what are you expecting the company to do for you? If there is a clear answer, incorporation may well be the right step. If the answer is mostly that it makes the business feel more established, it is worth looking at the real cost, time and administrative burden before jumping straight in.
Two points worth keeping in mind
A solicitor’s letter is not a judgment
A formal letter can look fairly intimidating, particularly when it sets out the other side’s position with a lot of confidence, but it is still only one side of the argument. The useful first step is usually to work out exactly what is being alleged, what deadline has been given, what documents or correspondence need preserving and which points actually require an answer. Responding quickly is not always the same thing as responding well.
Sometimes the value of outside support is independence
Businesses do not always bring somebody external in because they lack the skill internally. Sometimes the people who would ordinarily deal with the matter are already involved in it, have witnessed part of what happened, or have formed a view. In those situations, having somebody outside the immediate chain deal with an investigation, review or difficult piece of correspondence can make the process cleaner and easier to defend later.
Initial triage
Sometimes the first question is not what the final solution looks like, but what actually needs doing next. Our initial triage is intended for matters where something has landed, there may be a deadline or an obvious risk, but it is not yet clear whether you need a letter, a review, a formal process, a larger piece of consultancy work or simply a sensible view on the position.
We will look at the immediate issue, identify any obvious risks or deadlines, and set out the practical next steps. If further work is needed, we can discuss that separately; if it is not, you still come away knowing what needs attention and what can safely wait.
Before “later” becomes urgent
I spend quite a lot of time dealing with situations where the paperwork, structure or process was treated as something to sort out later. Usually that is understandable; when a business is busy, the immediate problem tends to win. The difficulty is that “later” often turns out to be exactly when somebody is challenging a decision, asking for evidence, or wanting to know why something was done in a particular way.
That is really the thread running through this month’s Briefing. A little thought at the beginning rarely feels dramatic, but it can make the difficult bit much easier when it comes.
Ann
