Are you setting up a UK business? A simple training programme could be critical to managing your on-going employment costs and liabilities

Whether you are a startup or an international firm setting up a base in the UK for the first time, a key priority for your business is likely to be recruiting new employees and putting in place employment contracts for successful candidates. Once the dotted line has been signed it is easy for everyone to proceed on the basis of “business as usual”.

But what happens if things start to go wrong or the new recruit does not understand what that “usual” business is? Perhaps the new recruit’s performance is not as hoped; or it may be their behaviour towards other employees or third parties is causing concern. Whilst an employment contract can build in some protection in such circumstances, perhaps via a probationary period or provisions to bring the contract to an end, the time managing such situations, the related employee relations issues and associated employment liabilities and costs, can be an expensive and unhelpful distraction from the business focus.

A potential solution which is often overlooked is to recognise the practical importance of integrating the new recruit into the business, including a new employee’s training programme. Such programmes in many cases can be kept relatively straightforward and cost effective. Whilst it is hoped that training will play a preventative role in preventing disputes arising, should matters arise leading to an employee presenting a claim against their employer, the steps the employer has taken in this regard can also provide useful ammunition in an Employment Tribunal.

What are an employer’s training obligations?

Employers are under no statutory legal obligation to provide new employees with occupational training, save for discharging certain health and safety obligations. Employees do have a limited right to request additional training, which their employer must consider in accordance with a prescribed process and can reject on a number of specified grounds. However, the right only applies where the employer has 250 or more employees and the employee has at least 26 weeks’ continuous employment. Whilst every employer does also owe a duty of trust and confidence to their employees, inadequate training on its own is unlikely to be a breach of that duty except in the most serious of cases.

Why is a training programme important?

There are a variety of benefits that can attach to introducing a training regime into the business, including:

• assisting the new employee’s integration into the existing workforce;

• increasing the employee’s productivity and performance;

• contributing to a culture of consistent standards of experience and knowledge across the workforce;

• improving employee retention prospects (as early investment can signal the employer’s commitment to the individual’s career development); and

• preventing performance and other workplace issues arising and where they do, helping the employer deal with them from both a legal and employee relations perspective.

Where an employee is dismissed on capability and/or conduct grounds and subsequently commences Employment Tribunal proceedings, the level of coaching that they received during their employment will often be a key consideration. The Employment Appeal Tribunal has previously emphasised that an employer’s failure to supervise, train and encourage a new or newly promoted employee is one factor to be taken into account when considering the reasonableness of an employer’s decision to dismiss.

Although in the majority of cases, employees will be required to have accrued at least two years’ service prior to commencing an unfair dismissal claim, time can easily creep when poor performance issues are in play, with many employers preferring at least initially to turn a blind eye to poor performance.

Employers may also be caught out by inadequate training where bullying, harassment and/or discrimination claims arise. In these cases, the employer may be held vicariously liable for an employee’s acts or omissions in this regard. Whilst it is open to the employer to attempt to rely on the statutory defence that they took all reasonable steps to prevent the alleged conduct, the threshold can be a difficult one to meet, and simply providing an employee with a copy of the employer’s anti-harassment/bullying/discrimination policies is unlikely to be sufficient on its own.

What should employers be doing?

Employers, even if their workforce is small or their operation is relatively new, should ensure that they have some form of structured training system in place including some or all of the following:

• Having a robust induction program in place, including training specifically directed to the role that the new employee is going to be undertaking.

• Maintaining a system of on-going training and support (to allow employees to improve upon the knowledge provided during the induction process).

• Introducing supplementary support and training provisions such as a buddy/mentor scheme.

• Keeping a detailed record of all training courses that their employees undertake.

• Having comprehensive policies and procedures relating to performance and conduct (to ensure that consistent processes are followed where an employee is failing to meet the standards expected of them).