#Be Diligent: 5 Practical Steps to Enforceable Workplace Policies
February 2, 2018
By Lucie LaBoissonnière, at McInnes Cooper
Many employers use written workplace policies as a day-to-day workplace management tool; common examples include attendance management policies, reasonable lateness policies, gender diversity policies and workplace violence policies. When the employer identifies a new risk or hazard, or a change to a known risk or hazard – like the upcoming legalization of recreational marijuana and the heightened focus on workplace sexual harassment the #metoo campaign is generating, for example – employers are motivated to introduce new policies or change existing ones. There are several benefits to employers to properly implemented, well-drafted written workplace policies, including:
Clear Expectations of Employees. They clearly and, ideally, comprehensively establish the employer’s expectations of employee conduct. This is always important, but particularly so where the misconduct has potentially significant consequences, like the impact of sexual harassment on a victim or the potential safety risks of workplace drug use. So, a policy can make clear what conduct the employer considers prohibited or amounts to misconduct as well as the consequences for the prohibited conduct.
Clear Guidelines for Managers & Supervisors. Similarly, policies give the managers and supervisors who are on the ground the guidelines they need to confidently manage and, where appropriate, correct, employee behavior – and in some cases, what corrective steps are warranted.
Avoid – or Lay the Basis for – Discipline. Clearly setting out expectations might just avoid some misconduct. But if not, well-drafted and properly implemented policies help set the stage for the employer’s ability to administer discipline for the misconduct.
Tee Up a Defence. A workplace policy can be the lynchpin of an employer’s defence to an employee’s legal claim against it, whether a regulatory complaint, a criminal charge or a civil lawsuit. For example, a relevant, properly implemented policy is the crux of the legal defence of “due diligence”, a specific defence (distinct from diligence generally) available to employers to charges or complaints under certain regulatory laws (like OHS laws). It can also help the employer answer criminal charges and a civil lawsuit arising from certain workplace conduct, like sexual harassment or assault, or a civil lawsuit for the employer’s enforcement of the policy against an employee (such as a wrongful dismissal lawsuit or grievance).
Here are five practical steps to help employers properly create and implement new policies, or change existing ones, that are both effective in achieving their objectives, and enforceable in relation to their employees.
- Policy Preliminaries
Once the employer has identified the need for a new policy or significant changes to an existing one, take these preliminary steps before rolling it out to employees.
Development. Before putting pen to paper, ascertain just what the policy on the topic will be. For example, if the employer has identified a new risk or hazard for which it’s determined a new policy is required or desired, it will need to ascertain how to best control or reduce that risk or hazard. In doing so, bear in mind that for a policy to be enforceable in relation to its employees:
- Contract consistency. The policy must not conflict with the terms of any collective agreement (for unionized employees) or employment contract (for non-union employees).
- Reasonable. The policy must be “reasonable”, that is, it must relate to a legitimate business purpose; for example, a court or an arbitrator would not likely view a policy that intrudes into employees’ private affairs as “reasonable”.
Consultation. Depending on the topic, employer consultation with one or both of external and internal parties can assist the employer to decide on a policy that will be effective in achieving its objective:
- External Experts. Where appropriate, consulting with appropriate experts, such as subject-matter, job matter and legal experts, can give the employer helpful – and sometimes necessary – input to ensure the policy is effective to achieve the goal. For example, when developing a workplace drug policy, the employer will likely require drug and legal experts to establish drug “cut-off” points and testing methodologies that are both medically – and legally – accepted. Similarly, when developing a sexual harassment policy, the employer might consult with an expert in sexual harassment in general, or in a particular industry sector or workplace setting. And policies have legal implications; for example, even those that seem innocuous, like dress code policies, can inadvertently violate employees’ human rights; legal guidance can help avoid doing so.
- Workplace Stakeholders. Policy development is an employer initiative, but there are benefits to also involving key workplace stakeholders in the process. Doing so can help the employer identify and take into account stakeholder concerns before developing the policy (and perhaps avoid a disastrous implementation), help the employer build workplace buy-in for it, and allow it to identify and prepare for those areas in which it could encounter resistance. For example, if the policy is a safety-related one (such as workplace sexual harassment or drug or alcohol related), consultation with the occupational health and safety committee is often appropriate and beneficial; in a unionized workplace, consultation with the union at the policy development stage might also be appropriate and beneficial. The employer should, of course, be prepared for questions from the workplace stakeholder with which it consults and be in a position to answer them or get the answer to them promptly.
Drafting. The employer will need to need to put the policy into writing, whether in electronic or hard copy form. Each policy should include these key elements:
- Clarity. To be enforceable, the policy must be written such that it’s clear and understood by employees.
- Purpose. State the policy’s objective or purpose; for example, if it’s an occupational health and safety policy, the risk or hazard the policy is intended to address and, broadly, how it does so.
- Acceptable & Prohibited Conduct. Set out the employer’s expectations, as clearly and comprehensively as possible, of employee conduct and/or the employees’ responsibilities. Conduct the employer considers prohibited or that amounts to misconduct (such as harassment or workplace intoxication), or the employees’ responsibilities (such as safe-keeping the employer’s electronic devices), should be clear. Concrete examples of the sort of conduct that would violate the policy can often be helpful.
- Procedures. Where appropriate, outline any relevant procedures the employee must follow (such as submission of receipts for expense reimbursement) and/or to which the employer will adhere (such as the procedure it will follow to investigate a discrimination or harassment complaint).
- Consequences. Describe the consequences of violating the policy. In particular, if the employer wants the option to dismiss the employee for cause for a policy violation, the policy should state this is one of the potential consequences. However, when doing so at both the drafting and later enforcement stages, bear in mind that regardless of what a policy says, there are few circumstances in which a court or arbitrator will uphold dismissal for cause based on a first-time policy violation. But arbitrators are more willing to treat violent conduct and threats of violence, including in the context of sexual harassment, as falling into the category of serious misconduct for which a single incident may warrant a greater degree of discipline, and potentially dismissal.
Executive “Buy-In”. Once the policy is developed and drafted, and where it’s appropriate based on the subject-matter of the policy, circulate it to senior management for comment and approval. For significant policies, such as drug and alcohol and harassment policies, top down commitment – before policy roll-out – can make or break the effort.
Manager & Supervisor Training. Managers and supervisors might not be directly responsible for creating policies, but as the feet on the ground, they play a critical role in properly implementing (rolling out and enforcing) them. Training sessions should:
- Familiarize managers and supervisors with the policy.
- Discuss the roles and responsibilities for policy enforcement.
- Provide investigation techniques (where appropriate).
- Discuss and clarify any procedures for applying and enforcing the policy.
- Practice applying and enforcing the policy using tools such as working through case examples.
In some cases, the employer can deliver the necessary manager and supervisory training or avail itself of general training available in the marketplace. But in other cases, consider whether the training might be more effectively delivered by external trainers. For example, if the employer is introducing a new sexual harassment policy, a substantive training session, perhaps a half or full-day in duration, consisting of sessions by each of a legal, workplace and health professional with relevant expertise, and customized to the particular workplace and policy, is called for.
- Policy Promulgation
Once the employer has fully developed the policy, it’s time to roll it out to the employees.
Distribution. For the policy to be legally enforceable in relation to employees, the employer must bring it to the attention of all employees. Give every employee a copy of the policy, either in electronic form, hard copy or both. Also ensure employees have easy access to all policies, again either electronically (such as on an intranet) or in hard copy (such as individual and/or departmental policy manuals), so they can consult them as and when they wish.
Acknowledgement of Receipt. Ask each employee to sign and date an acknowledgement stating they received, read and understood the policy and were afforded an opportunity to ask questions about it. File a copy of the acknowledgement in the employee’s personnel file in the event you require it at a future date. There will always be a handful of employees who don’t (or won’t) sign such acknowledgements; in those cases, two management members can themselves sign an acknowledgement stating that they gave “Johnny” a copy of the policy but “Johnny” refused to sign the acknowledgement.
Advance Notice. If the new or changed policy significantly affects or changes any employment rights or benefits, such as vacation rights for example, give employees advance notice of the policy implementation and a grace period for the change to take effect. Otherwise, the change could amount to “constructive dismissal”. Constructive dismissal occurs when the employer unilaterally changes a fundamental term(s) or condition(s) of employment, effectively breaching the employment contract. The employee can either: accept the change, essentially agreeing to the new contract; or refuse to accept it, accept the employer’s termination of the contract – and sue the employer for wrongful dismissal. Just what amounts to a fundamental change and the length of the required advance notice depends on the circumstances; in general, however, the more significant the change, or the longer the employee’s service, the longer the advance notice of the change that’s required.
- Policy Pedagogy
Depending on the policy subject-matter, or if the new or changed policy is advantageous to employees, sessions in which the employer revisits a number of policies in the same session or toolbox sessions can be effective and sufficient. But the introduction of a totally new and significant policy or significant change to an existing one, such as drug and alcohol and harassment policies, and particularly those that could lead to disciplinary action or termination of employment, warrants stand-alone, specific training. Doing so gives a judge or arbitrator, if there’s a subsequent dispute arising from enforcement of the policy, comfort that the employer adequately explained the policy to the employees and afforded them an opportunity to ask questions. Ideally, this training consists of:
In-Person Training. An in-person training session, perhaps accompanied by a presentation and/or a handout, explaining the operative aspects of the policy and gives employees the opportunity to ask questions about the policy. If the policy affects a particular group more than others, consider providing additional training for such “at-risk” groups. Effective training will: clearly describe the policy, the employer’s expectations, the employees’ responsibilities and the policy procedures; give concrete examples; and set out the consequences of a policy violation. Again, consider whether it’s most effective for an internal person to deliver this training, or if the circumstances warrant engaging an external expert to do so.
Attendance Evidence. Circulation of attendance or sign-in sheets to all employees who attend the training session. As with acknowledgements of policy receipt, there will always be a handful of employees who don’t (or won’t) sign an attendance or sign-in sheet for training; as in the case of policy acknowledgements, in those cases two management members can simply sign an acknowledgement that “Johnny” was present at the training session but refused to sign the attendance sheet. And as with the acknowledgement of receipt, file a copy of the attendance record in the event you require it at a future date.
- Policy Prosecution
Equally important to the validity of a policy is that the employer – and usually, this means the managers and supervisors who manage the affected employees – enforce policy compliance consistently, immediately and, where necessary and appropriate, apply discipline. If it fails to do so and the employer disciplines an employee based on the policy, a court or an arbitrator dealing with that discipline might refuse to uphold the discipline on the basis the employer “condoned” the misconduct or is “estopped” from relying on the policy. Tips to achieve the required enforcement include:
- Train supervisors to monitor compliance
- Authorize Supervisors to discipline for breaches of policy (with all employees, even management)
- Make sure appropriate disciplinary penalty is imposed (corrective discipline, progressive discipline, etc).
- Ensure consistency in discipline
- Warn of consequences of future violations.
- Policy Progression
A policy should be a living document: it’s critical that the employer regularly review and refresh its policies to ensure they remain relevant, and regularly remind their employees of them to ensure they remain top of mind.
Review & Revisit. Continuous risk/hazard assessment and regulator monitoring of changes in technology or the way in which a job is done and of legal developments (new or changed laws, arbitral and/or court decisions) in the relevant area, and regularly reviewing the relevant workplace policies and changing them as required helps keep them current and effective. For example, the pending legalization of recreational marijuana and the intense attention on workplace sexual harassment warrants a review of several workplace policies – or the creation of new ones. Ensure policies are up-to-date & provide access to copies
Feedback. The employer is likely to receive feedback on policies and their procedures from managers, supervisors and employees: it’s important to be alert to that feedback, and to accept and act on it. This doesn’t’ necessarily mean the employer must change the policy; listening and responding to feedback is simply good employee relations practice – and sometimes, the feedback will improve the policy.
Refresher Training. One-time initial training with employee sign-off isn’t usually enough. Most employee learning occurs after the initial training has taken place, once the policy has taken effect and employees (and the employer) have had some experience working with it. So it’s important that employers continuously and regularly train employees, including managers and supervisors, to remind employees of important policies and update them on changes. Depending on the subject-matter, “toolbox” sessions and technology (like webinars) to make delivery of this ongoing training timely and efficient.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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