What can employers do to motivate valued staff while avoiding legal challenges?
January and February can be miserable months when employees struggle to maintain enthusiasm for their jobs. If the economy does improve during the early part of 2014, some will make New Year’s resolutions to find more challenging or highly paid employment elsewhere, and their chances of success could increase in the months ahead. It would be a bitter pill for employers to swallow if they have supported employees during difficult economic times only to find that their skills and knowledge walk out of the door because of a better offer elsewhere.
If employers want to retain their most valued employees, and avoid the real risk that dissatisfied employees will move on, they need to think now about how to nip dissatisfaction in the bud.
Early bonus payments
It is common practice for companies to make bonus payments in the New Year, once their accounts for the previous year have been finalised. However, it is usually fairly clear towards the end of the year how the company has fared, so this may be a good time to recognise employees’ contribution by making early bonus payments.
Obviously, employers would not want to pay employees their entire bonus for 2014 now. But a partial award of bonus may be an option that employers wish to consider. If they decide to go ahead, they need to make it clear that such a payment will be taken into consideration and offset against any final award or bonus that may be made in the following year. It would be advisable to have the employee sign documentation to ensure that there are no arguments about deductions from the final award.
Mini appraisals
In a similar vein, a pre-Christmas discussion or “mini appraisal” could also help to prevent dissatisfaction from festering over the Christmas break. Such a discussion might focus on the contribution the employee has made during 2013 and highlight positive points for 2014.
The main challenge is to make sure that these discussions are not seen as discriminatory. If it is not possible to have conversations with all employees and they need to be sub-divided into categories, it is important that that those categories do not consist just of full-time staff, for example, or members of groups protected on grounds such as disability, sex or ethnicity. So if the employees an employer would least like to lose all happen to be women, for example, then an alternative defining and objective reason is needed for selecting them for a mini-appraisal. This might be level of seniority, or role in a particular business area. If it appears that certain employees are being selected for special treatment based on grounds that might be seen to be discriminatory, then the employer risks accusations of unfair treatment and could find itself in an employment tribunal.
Confidential information
A further way of trying to keep employees happy is to engage them in meeting the challenges facing the business. If these challenges involve new projects, then it may be necessary to share confidential information with employees as part of that process. However, employers need to take steps to ensure that this information remains confidential if the employees concerned subsequently leave the organisation.
A point often overlooked is that the enforceability of restrictions on employees’ conduct following termination of employment is judged on their enforceability at the time they were entered into. Consequently, bringing in new restrictions when an employee joins a sensitive project would assist the enforceability of those restrictions (should that be necessary) following termination of that individual’s employment. This would not need to be by way of a new contract – a separate deed of confidentiality would be perfectly acceptable.
Jonathan Maude is an employment law partner with McGuireWoods.
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