UK Employment Law is no longer fit for purpose!!!

25 Feb
by Donna Obstfeld, posted in Brexit, employee rights, Employment Legislation, HR, Human Resources   |  No Comments
Donna Obstfeld (FCIPD), HR Specialist / Managing Director

Donna Obstfeld (FCIPD), HR Specialist / Managing Director

I’ve been in Human Resources (HR) for over 20 years. When I was first introduced to the discipline, it was known as Personnel and today when I am speaking with clients, I refer to it as ‘managing employees’ or ‘staff management’. Why give a fancy name to what business owners just need to be able to do to run their business effectively?

10 years ago I set up my own business. I didn’t have a clue what I was going to do with it or what it could become, but it was mine. I knew I didn’t want to be an interim HR Manager for large businesses, I wanted to help small businesses to grow and through their staff, achieve greater success. Over time my own business grew and like so many of my clients I had to take the decision whether to take on staff. This was an absolutely terrifying decision. Could I generate enough income for two of us? Would my clients trust someone else with their ‘HR’? How do I transfer my approach to managing employees (which is very different) to my team?

Fortunately, being in the profession, I knew how to do the people things ‘right’. How to hire, how to induct, contract of employment, how to monitor performance etc. But I was still scared. However, I had a safety net – the ‘zero hour contract’. I could guess how much time I would need the staff for and if there wasn’t enough work, they didn’t work. For one member of staff, if the work in a day dried up or she was waiting for 5 different people to come back to her and couldn’t’ move on, she would take a break for 3-4 hours and come back on later in the day. It suited my staff and it suited me and my business. It meant I could hire a number of people with different skills and deploy them as the business needed. They were employees, so bound by our policies and procedures, invested in – in terms of training and coaching, and supported with their personal development, but able to collect kids from school, take holidays or meet friends for lunch as they wanted. As a small business owner this was the flexibility I needed.

As time has gone on, my business model has changed, we have expanded and the inflow of work is more sustained, being able to pay staff at the end of each month is less scary and I know I have staff to deliver client work as needed, but I still have concerns and I believe that all small business owners feel the same:
• What happens if someone decides to take a hit at the business?
• What happens if someone thinks they have been treated unfairly?
• What happens if someone resigns and fails to work their notice period?
• What happens if someone leaves and takes your clients with them?
• What happens if someone leaves and takes your staff with them?

These are realities for almost all of my clients and some have had to shut up shop as a result!!!

Contracts of employment are great because, if written properly, they set out certain rules, policies and procedures which employers and employees commit to when signing the contract. However, as I warn many of my clients, they are not worth the paper they are written on unless you are prepared to enforce them.

Let me describe a scenario at this point –based on a real client: A firm of gardeners. Employees were provided with tools and a van. Employer came in one Monday morning to find the van unlocked in the yard with a note from the employee saying “I quit”. No notice provided. The employer then has to cancel and reschedule work at very short notice.

If the employee had been fired, the employer would have had to pay 1 months notice or the employee could take him to the employment tribunal for failing to do so. However, in this instance it is the employee who has breached his contract and not given the required notice, but what options has the employer got – in reality, none!

The situation gets worse – Over the next few weeks the business owner starts to receive cancellations from clients no longer wishing to have their gardens maintained by the company. No one would say why, but a pattern emerged. They were all clients who had been serviced by the former employee. Not only had he left with no notice, he was now poaching clients as well.

What options has the employer got? Well he could try to take out an injunction, but if the IMG_0275clients choose to leave, that is their right. They can purchase their gardening services from whomever they wish! Same gardener, same services but cheaper… why wouldn’t you?

So the business owner is left feeling ‘had’. The contract of employment, although legally binding, costs too much in time and effort to enforce. So is there another way?

I believe there is, but it requires a change in the law. Theresa May’s 10 point plan for the post-Brexit UK economy ‘supporting businesses to start and grow’ is one of her main objectives for Government intervention. This points towards the entrepreneurs, the micro and small business owners, those which account for 99.3% of private businesses in the UK and employ over 15.7million people.

With Brexit around the corner and a once in a generation opportunity to create our own laws as we come out of Europe, this is the time to really look at our employment legislation and to balance the needs of employers and their businesses with the protections required for employees.

Frances O’Grady of the TUC together with other Trade Unions and their officials claim that the fees that an employee has to pay in order to take their employer to an employment tribunal are unfair and prohibitive and should be scrapped. There is a consultation taking place at the moment on this very subject and while the whole subject of employment tribunal fees is under review, I ask the question “is the system of employment tribunals even fit for purpose?”

Another scenario for you: A customer service call centre with a sales team of 2. Both employees are new and being trained. Both have contracts and are on a 6 month probation period. One of the employees is really struggling. Extra help is bought in to support her, extra supervisions are provided and weekly meetings are being held. It emerges that the employee is spending about 3 hours a day surfing the internet. At 3 months she is given a performance review and told she is not at the required standard, reminded that she is on a probation period and that she needs to start making some profitable sales. At 5 months she announces she is pregnant. A week short of her 6 month end of probation, there is a review meeting in which she is told that as she has failed to improve, failed to take on board the training she has been provided with, is still spending too much time on her phone surfing the internet, her employment is being terminated by reason of failing her probation.

It is stressed, that she is not being fired for being pregnant (there are plenty of other workers who have been pregnant, had babies and returned to this workplace), but because she is just not capable of doing the job for which she has been employed.

IMG_0277A week later ACAS contacts the employer to advise them that the employee is taking a case against them. It eventually emerges that the employee wants £28k and is threatening a sex discrimination case on the grounds that she is pregnant.

The employer does not want to settle as they have done nothing wrong, but they now have two choices, settle and pay something or fight it and incur a lot of time money and stress with no guarantee of the outcome. ACAS makes no attempt to resolve the issue, they purely act as a go between for what should be 4 weeks, could be 6 weeks or could be less if the other side play stupid games. At the end of this period the ACAS system automatically issues a certificate saying that conciliation has failed and the employee can now take the employer to the employment tribunal. Until this point, the employee has not had to pay any money, but if the employer refuses to pay a settlement they are now likely to end up in the employment tribunal.

The TUC claims that Employment Tribunal claims have dropped since the introduction of the fees and yes they have, but not for the reasons that the TUC and others would have us believe. The figures have dropped because employers want to get on with running and managing their businesses. Business owners do not have the time, money or energy to fight with the risk of losing, with the costs of solicitors to defend the case or with the time wasted in preparing for an employment tribunal just because an ex-employee has decided to take a chance.

They are after a settlement. Their solicitors often don’t want a settlement as they earn more from defending a claim in the Employment Tribunal, but the employee wants a quick pay-out and I frequently come across people who have already taken one employer to the tribunal (or threatened to). Employers end up paying at the ACAS stage to make the employee’s claim go away, to know what the financial impact is as a fixed amount and to enable them to move on and focus on their business.

There are lots of different systems across the world and while I recognise that some are better than others, if this government is serious about enabling small businesses to grow and succeed, the noose has to be removed from around their neck and the laws need to be equalised between employer and employee.

Donna Talks HR with Nigel Botterill of The Entrepreneur’s Circle

19 Feb
by Donna Obstfeld, posted in Blog, Podcast   |  No Comments

Trusted supplierAs an Entrepreneur’s Circle Trusted supplier, DOHR Managing Director, Donna Obstfeld joined Nigel Botterill of The Entrepreneur’s Circle to talk about the seven stages of an employee’s life cycle.

 

Employee vs Worker

24 Jan
by Donna Obstfeld, posted in Agency workers, Blog, Contract of employment, employee rights, Employees, employent law, Employment Legislation, Video, Vlog   |  No Comments

As a result of some big legal cases last year, the status of workers is coming under the spotlight like never before. This will be a big area for change in 2017 as the Governement are focussing on understand and protecting Gig Workers.

 

Employee Handbook

23 Jan
by Donna Obstfeld, posted in Blog, Contract of employment, employee rights, employent law, Employment Legislation, Video, Vlog   |  No Comments

As a business grows, there is an increasing need for clarity. The Employee Handbook remains the ‘go to’ reference for employers, managers and employees.

Contracts of Employment

22 Jan
by Donna Obstfeld, posted in Annual Leave, Benefits, Blog, Bribery, Contract of employment, employee rights, Employees, employent law, Employment Legislation, Flexible working, Health and Safety, Holidays, Home-workers, Video   |  No Comments

This is a massive one for me and one that I spend most of my professional career talking about!!!

 

Feedback

16 Dec
by Donna Obstfeld, posted in Blog, Video, Vlog   |  No Comments

Providing feedback isn’t just for the candidate’s benefit – it can help you and your business as well. The important thing is to provide the feedback in a positive way that doesn’t expose your business to any risks.

 

 

Discrimination

15 Dec
by Donna Obstfeld, posted in Blog, Discrimination, Video   |  No Comments

This is one you need to understand to ensure you protect your business!
Boring – Yes!
Essential – Yes!
Expensive if you get it wrong – Yes!

Bah ……….. Humbug

09 Dec
by Donna Obstfeld, posted in Blog   |  No Comments

thINLQ7UOVAlmost every employer I meet wants to be a ‘good’ employer. In this day and age, there are very few Scrooges around, but at Xmas time there is a balance to be had between the needs of the business and the needs and wants of the employees. Getting this balance right is not written in law, there is often no right and wrong and there is certainly no golden formula.

I am going to raise more questions than I answer here because there is no one size fits all solution. You know your business and what it needs, how you deliver that is based on your policies, procedures, staff, culture, business needs and attitude to risk.

The overriding element to consider is not putting your business at risk. The risk of discrimination, the risk of a vicarious liability claim or even corporate manslaughter! Your contract of employment and employee handbook (if you have one) should be your guide to some extent; the rules still apply and are not thrown out the window just because it’s Christmas.

Annual leave

This can be a contentious issue as many staff will want leave around the same time. How HolidayHolidayyou manage this will depend on a number of elements:

  • Are you closing the office over the festive period?
    • If so, make sure you communicate this well in advance
    • Tell staff whether this is in addition to, or part of their annual leave entitlement
  • Do you need business to continue as normal, perhaps because you are a 24/7 operation?
    • Set the rules, communicate them and then apply them consistently across the business
    • Consider people’s religious needs and their right to family life
    • Look at what the business actually needs and the service levels expected by your customers
    • If you have people of different faiths working in the business, some may be quite happy to work over the Christmas period but would like time off around their own religious holidays
    • If you need staff to work Christmas Day, Boxing Day, on the 27th December (which this year is a substitute day) and on New Year’s Day and 2nd January (again a substitute day), consider asking people to work in rotas so that they do not have to work on all of the public / bank holidays.
    • If you have people of no faith, they must not lose out on holiday entitlement when extra holiday is given on Religious grounds
    • Part-timers are only entitled to a pro rata amount of time off and should not be given a disproportionate amount of extra time off, otherwise, it is your full-time employees who have a potential claim
  • What does your annual leave policy say about notice of leave, booking and authorisation of holidays, carry forward of accrued holiday and working on bank holidays
  • Do you need an on-call rota?
    • If you decide to shut the office, do you still need cover and who will provide that cover?
    • Can they do so from home?
    • Will you require them to be sober at all times and able to jump into a car and get to the office in less than an hour?
    • Will you pay staff for being on call, or only if they are actually called on to work?
  • What about people who are happy to work but who can’t because the office is closed and who are therefore forced to use annual leave?

Ask yourself the questions, decide on the answers, communicate them and then apply them consistently. If in doubt, get some advice, you need to tell your staff what you want and not the other way round.

Christmas parties

Glasses of alcoholMost companies still hold some form of Christmas lunch, dinner or party, although fewer and fewer are spending thousands on them like they were 10 – 15 years ago. Key considerations are:

  • Alcohol vs no alcohol
    • Most companies will allow staff to drink alcohol at Christmas events whereas they may not allow staff to drink alcohol (at work) at other times
    • If drinking at lunchtime, is the business going to close in the afternoon or will staff be going back to work under the influence? For some businesses, this may not be an issue, but if you employ staff who drive vehicles, operate heavy machinery or are in highly pressurised environments, you need to plan for the disruption to operations
    • Even if your party is in an evening, will staff be expected to work the next day and what are the penalties for those who call in sick as a result of too much alcohol the night before
    • There is an increasing number of people who do not drink for health or religious reasons, how are these members of staff treated and provided for?
  • Venue and transport home
    • Employers do have a responsibility to ensure that staff are able to get home safely. In some cases, coaches are laid on and in some cases discounted hotel rooms are reserved or taxi cabs booked
    • The venue needs to be appropriate for all staff and food options need to be able to cater for all requirements – religious, health and personal choice
  • Partners or no partners
    • Whether to invite partners or not is always contentious. I have worked with businesses where staff will not attend unless partners are invited and others who absolutely do not want partners ‘hanging around’. The decision on whether to invite partners will be based on the number of people within your business, your previous involvement with partners, the culture within the business and your venue / budget.
    • Again, be consistent. Either invite everyone to bring partners or nobody, don’t pick and choose.
  • Company paid / subsidised vs employee paid
    • This will almost always depend on your budget and there is no hard and fast rule.
    • There is a tax benefit for staff entertainment up to certain limits and some companies will pay for the party to enable them to fully utilise this benefit
    • For companies who allow partners, the employee is often company paid and the partner is employee paid
  • Penalties for bad behaviour
    • I recently heard a story where the senior partner of a City Accountancy firm with responsibility for staff ‘mooned’ on the coach on the way back from the Christmas party. His credibility was shot and he had to relinquish his HR remit.
    • I have also recently been dealing with a situation where the excesses of alcohol served at work resulted in employees sleeping together which then caused significant problems back in the workplace
    • At the end of the day, your employees are adults and need to be treated as such, but if they breach your code of conduct, bring your company into disrepute or act in a way which jeopardises your business, you need to take action – you still have a business to run in the new year!

 

Special Needs

05 Dec
by Donna Obstfeld, posted in Blog, Disability Discrimination, Discrimination, HR, Interviewing, Recruitment, Video   |  No Comments

People don’t need to be employees to take an employment tribunal claim against you (although they usually are, or have been). Job applicants who feel they have missed out on a job due to discrimination can also lodge an employment tribunal claim and therefore taking any special needs into consideration at the recruitment and interview stage is really important.

 

 

If you need any support with recruitment or interviewing, give us a ring or take a look at our Interviewer’s Toolkit.

 

 

Silence

28 Nov
by Donna Obstfeld, posted in Blog, Video   |  No Comments

They say Silence is Golden and this can certainly be the case during an interview process. This is a classic case of the 80:20 rule. The candidate should be doing 80% of the talking – at least during the first part of the interview (when it comes onto them asking you about the company, role etc. this is your chance to sell the business to them).

In today’s video Top Tip, I share the 10 of Diamonds – silence!

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