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October’s Top 5 HR FAQ’s

Get Updated on the 5 most frequently asked HR questions from October.

1)    HR’s role in supporting the organisation’s use of AI

As AI becomes increasingly prevalent in the workplace, it is crucial that HR plays a key role in mitigating the potential risks that may arise. To ensure that AI is used effectively and responsibly, the organisation should establish a clear strategy, with leadership from senior-level executives in collaboration with technology and HR teams. HR should also take steps to ensure that all employees are aware of the organisation’s approach to AI and the rules in place to control risks.

Some legal, commercial, and reputational risks associated with AI use include personal data breaches, discrimination and bias, exposure of confidential information, and use of inaccurate information. In light of the availability of generative AI tools like ChatGPT, HR should consider introducing a policy to address such risks to ensure the following safeguards for employees:

  • Personal data is not fed into AI chatbots
  • Confidential information is not fed into AI chatbots
  • Human review of AI output, including checking for bias or discrimination
  • Rules established for the tasks AI can and cannot be used for

To ensure that employees using AI are equipped to identify and rectify potential issues, HR should train them in the potential for discrimination arising from AI outputs, how to prevent it, and how to address it if it occurs. If the organisation’s AI strategy significantly impacts employees’ workload and processes, HR will have a role in responding to this, such as restructuring roles and responsibilities.

2)    Should an employer deal with an employee’s poor performance through its disciplinary or capability procedure

When addressing an employee’s poor performance, it’s crucial for an employer to determine the root cause of the issue. A comprehensive investigation, including a meeting with the employee, is necessary to make this determination. If the poor performance is conduct-related, meaning the employee has control over their actions, the employer should follow its disciplinary procedure. However, if the poor performance is capability-related, meaning the employee lacks control over their ability to meet performance standards, it is appropriate for the employer to follow a capability procedure for performance management.

It’s not always easy to determine whether an employee’s poor performance is due to conduct or capability. In some instances, both factors may be at play. The employer should select the procedure that seems most appropriate and adjust the course as needed based on emerging evidence. Regardless of which procedure is followed, the employer must comply with the Acas code of practice on disciplinary and grievance procedures.

3)    Who should carry out a disciplinary investigation?

When it comes to disciplinary investigations, there are no set laws as to who should carry them out. The most important factor is that a fair investigation takes place and that any potential conflicts of interest are avoided.

Generally, a representative from management should conduct the investigation, as long as they aren’t the same person who will oversee the resulting disciplinary hearing. This won’t always be possible, particularly in smaller organisations. The Acas code of practice on disciplinary and grievance procedures recommends that different individuals conduct the investigation and disciplinary hearing, “where practicable.”

It’s crucial that the investigating officer is not involved in any way with the matter under investigation, including as a witness. To avoid any appearance of bias, the investigator should not be in the employee’s direct line of management, if possible.

Ideally, the investigating officer should be someone who has undergone training on how to conduct a disciplinary investigation, such as a line manager or an HR representative. In cases where the investigation is complex or involves serious allegations, it may be appropriate for the employer to appoint a more experienced, senior manager. If no suitable individuals are available within the organisation, the employer may choose to hire an external investigator, such as an HR consultant.

4)    Can an employer lawfully dismiss an employee whose absence is not authorised?

An employer’s ability to legally terminate an employee due to unauthorised absence hinges on the reason and length of the absence, as well as the employer’s process. If the absence and reason are only a single day, it would be difficult for the employer to justify dismissal. However, if the absence is prolonged, unjustified, or repetitive, dismissal may be considered fair, provided that the employer adheres to a reasonable procedure.

To ensure a fair procedure, the employer should:

  • Provide the employee with written allegations and supporting evidence
  • Invite the employee to a disciplinary meeting
  • Allow the employee to present their case
  • Allow the employee to bring a colleague or union representative to the meeting
  • Grant the employee the right to appeal against the dismissal

In cases where the employee is absent for an extended period and fails to respond to the employer’s contact attempts, the employer may need to conduct the hearing in the employee’s absence. A letter must be sent to the employee inviting them to the hearing and advising them that it will proceed even if they are not present.

5)    What is a TUPE transfer?

If you’re unfamiliar with the term “TUPE,” it’s an acronym for Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246). These regulations cover a “TUPE transfer,” which involves the transfer of a business to which the regulations apply. Essentially, TUPE protects employees when their employer undergoes a change of ownership, ensuring that their employment contracts automatically transfer to the new employer.

The regulations apply when an employer transfers all or part of their business or undertaking as a going concern to another employer. Additionally, TUPE applies to “service provision changes,” such as outsourcing, in-house transitions, or switching to a new contractor for a function.

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