Do you have adequate employee policies in place? No matter the size of your business, you should have policies and procedures in place to capture detail on how you and your employees do the things which need to be done in the course of business and the employment relationship.

If a business does not have well-drafted policies, it could present a challenge in the future when disciplinary action is required, but the basis is lacking.

Case Study

ABC Co had an employee who was a full-time external Sales Representative. As a condition of her employment, she was entitled to the use of a company car (which extended to personal use) and fuel card. These benefits were set out in the employment contract but were not qualified in any way. Unfortunately, the Sales Representative became unwell and took an extended period of leave. ABC Co wanted to get the car back so it could temporarily reallocate it to another employee in her absence. The contract did not address what would happen if an employee took a period of extended leave, nor did it have any motor vehicle policy in place to address these issues.

The personal use component gave the employee a personal entitlement, so it could not be said that the car was purely a tool of trade. ABC Co did not have the right to demand the return of the car: it could request that, but if it acted unilaterally, it may have resulted in a claim by the employee (e.g a repudiation by ABC triggering a termination, or an adverse action claim based on the employee being on sick leave).  In this case, it was unreasonable for ABC Co to request the return of the vehicle.

A clear policy or contractual term could have qualified the employee’s right to retain the vehicle.

What you need to ensure

From a practical perspective, policies and procedures should provide clarity and set a consistent standard across the business. The business should clearly state their position on the relevant topic, in writing, which will save the business time and effort explaining the mundane to new and existing staff.

Policies should give general guidance to what will usually be the case but allow the employer discretion to vary application in different circumstances.

Policies and procedures should be reviewed frequently to maintain their relevance. As business needs and requirements evolve, so too should your policies and procedures.

If you amend, alter, remove or introduce a policy or procedure in your workplace, it is imperative that it is communicated to all employees. There are many ways a business can communicate a message – for example, a memo posted in the lunchroom or kitchen, topic discussed at an all staff meeting or policy sent out to everyone in an email.  Policies should be collected somewhere for future reference (e.g an online handbook), and there should be records of when and to whom they have been issued or communicated.

Failure to communicate changes or introductions could result in an employee claiming “I didn’t know, I’ve never seen it” when they fail to adhere to the policy and are subsequently disciplined. In these cases, you may have to give them the benefit of the doubt: “OK, there will be no consequence this time, but now you know that this is not acceptable, and it must not happen in future!”

Important policies (e.g anti-harassment and discrimination, IT usage, social media) should be reinforced on a regular basis.

Policies should also not be too prescriptive in detail, and should be as direct and succinct as possible, and discretion should be built in giving you the flexibility to adapt the policy to the situation at hand.

Consider also dealing with practical issues which may change over time in policies and not in contracts: policies can be changed by the employer unilaterally – contracts cannot.

There are some policies that businesses need to have in place from a compliance perspective. The key ones we recommend are:

• anti-bullying, harassment and anti-discrimination;
• work health and safety;
• grievance/complaint handling;
• workplace surveillance;
• IT and email usage; and,
• social media activity.

If you have any questions in relation to policies you have in place, or perhaps you need a policy to be drafted up or reviewed, please do not hesitate to get in touch with a lawyer in Coleman Greig’s Employment Law Team, who would be more than happy to assist you.