Walking Out

31 Oct
by Donna Obstfeld, posted in Blog   |  No Comments

On Friday morning I got a call, well… more of a spoiler actually!

It was a researcher from the JVS show on BBC Three Counties Radio –

“Following Aleksandra King’s shock departure from The Apprentice last night, we’d like aleksandra-kingto interview you about people who walk out of jobs with no notice”

Me: “Thanks for that, I haven’t watched it yet”

Anyway, with my normal professionalism, I then proceeded to discuss the reasons why people leave a job without giving notice and what (if anything) you can / should / could do about it.

Here are the headlines:

People will leave a job with immediate effect if:

  • They (or an immediate family member) have an illness which needs the employee’s time and energy –

    • In this instance there is not a lot that you should do, except offer support and, depending on circumstances, flexibility.
    • If they are a long standing member of staff with an elderly sick parent, you may be able to find a mutually beneficial arrangement which doesn’t lose you all that expertise in a matter of minutes.
  • They have a new job starting on Monday morning –

    • Check their contract of employment (if they don’t have one…. Why not?).
    • Specifically look at their notice periods and restrictive covenants – are they in breach of contract?
    • Do you have any financial penalties in the event that they breach their contract?
      • If not, it is a bit late now, but learn this lesson for future.
      • If you do, now is the time to decide whether you want to enforce the contract.
      • You may need a solicitor to help you do so, but take a quick decision and get some advice immediately
  • They are planning on taking you to an employment tribunal and the working environment has become so ‘untenable’ that they are resigning with immediate effect and claiming constructive dismissal –

    • Now it’s a bit more complicated than this, but if an employee has taken advice and they have been advised to take a constructive dismissal claim, they may well walk out without giving you any notice.
      • If you think that this is a possibility, perhaps because you were aware that the employee was unhappy or there were issues – be very careful with your next step and ensure that you get advice. You need to be able to defend yourself in an employment tribunal if this is the plan
  • They just can’t take IT any more –

    • You may never know what IT is, but it could be the journey, their boss, their colleagues, the work, their clients or any number of other things.
    • Some people will not fight, not say a word, just walk away and move on to other, ‘better’ things.

 

In all cases, you will not need to pay notice pay as it is them who has failed to provide you with the appropriate notice. However, you cannot deduct any pay due (hours worked or accrued untaken holiday), unless your contract gives you express legal permission to do so. For this reason some people will chose to walk out just after pay day or just after a bonus or commission payment.

At this point I’m going to let you in on a secret!

The Contract of Employment is essential, it is your bible, it is your how to guide, it is your obligations towards your employees and their obligations towards you…… However, it is not worth the paper it is written on unless you are prepared to enforce it!

et-plaqueIf you, as the employer, breach the contract of employment, you can legitimately find yourself defending your actions in an Employment Tribunal. However, if the employee breaches their contract of employment there is very little you can do. If they are still employed, you can of course discipline them. But, if they have walked out without giving you notice, or they go to work for the competition or they poach staff and / or clients …. there is no Employment Tribunal for you the employer to go to. You would have to take them to court for breach of contract! Fair… No! The way it is….. Yes!, Stressful…. Yes!, Expensive…. Probably!

At DOHR, we have a slight work around which we are beginning to use for some clients, but ultimately this element of employment law is heavily weighted in favour of the employee – so be aware.

If you want to know how we can rewrite your contracts to afford you greater protection, get in touch with us now on 01923 504100.

 

Is it a Duck?

28 Oct
by Donna Obstfeld, posted in Annual Leave, Blog, employee rights, employent law, pay   |  No Comments

uber

The Employment Tribunal has ruled that two drivers are infact ‘workers’ under the definition in the Employment Rights Act 1996 and therefore are afforded protections not available to genuine freelancers.

This case will be appealed by Uber, they can’t afford not to because of the implications for their global business model. Uber have also looked at the use of driverless cars and this may well speed up that development as ‘engaging workers’ is more expensive than ‘using freelancers / contractors’.

We are often asked by our clients what alternatives there are to having someone working as an employee, especially for new or small businesses, the thought of having employees and all the implications of employment law is enough to prevent them growing their business. The use of contractors, freelancers and gig workers has made business growth possible for many business who would just not have taken the risk with employing staff.

As employment law becomes more and more constraining for businesses, business owners seek ‘new and innovative’ ways of working. Until it is tested in the courts and deemed to be illegal, they will take their chances and that is exactly what has happened here.

In short, with our clients we apply the duck test:duck

If it quacks like a duck, waddles like a duck and looks like a duck, then it is a DUCK, no matter whether you call it a hen, a bird a chicken or a goose!

In this case the courts have decided that Uber has workers who are DUCKS and nothing else.

The implications are as workers:

  • they have to be given paid annual leave
  • they are subject to the working time directive regulations
  • they are entitled to National Minimum and Living wages and
  • they are protected against whistle blowing.

They are not employees, therefore there are other benefits they are not entitled to, but even the above will cause Uber and other companies to have to rethink their financial models.

Have you been fishing recently?

25 Aug
by Donna Obstfeld, posted in Blog   |  No Comments

I was recently reminded of a book and concept I first encountered approximately 20 years ago. Having worked for 2 large multi-national retailers in my early HR career, ‘team building’ and ‘personal development’ had a much higher profile and investment than many small companies I work with today can afford, but what follows is appropriate and affordable for businesses of all sizes.

pike-placeThe concept is Fish! Now unlike most training FISH is not an acronym for anything, it takes its name, story and educational value from the ‘world famous’ Pike Place Fish market in Seattle.

With the holidays looming, I decided I was going to reread Fish and also purchased a copy for each of my team.

I was quite shocked and pleasantly surprised to find many of my regular phrases and business beliefs are also to be found in this great little read – this is probably where I first came across them, but in the mystery of time, their original source had been lost to me.

The concept is about getting staff to engage and therefore perform, even when they appear to be doing menial tasks. There are four key elements within the book, but I am only going to outline them for you here as they really are a very well written, quick read which I urge you to undertake yourself.

The main element:

Choose your Attitude. Life happens, things go well, things go less well, what seems the biggest disaster one day appears as only a small hiccough the next day. It is how you respond to each and every situation, which determines whether you let the incident define you, influence your mood or impact on your behaviour. Choose to be happy or choose to be grumpy. Choose to be a victim or choose to be a survivor. Whatever you choose, it is a choice and it is your decision.

We are all children at heart:

Play is the second element of the fish story and here I find myself illustrating this point children-playwith one of my own mantras. You spend far too much time at work not to enjoy what you do. No matter what your job, keep it professional, but make it fun.

Live for the moment:

Being present is really important. During my recent travels in Thailand, I noticed that every piece of paper exchanged between you and a Thai is special. Whether it is a bill, a business card, a spa appointment card or a receipt it is passed to you with two hands, a polite bow and a greeting. You can’t help respond in the same way. Compare this to a receipt or a business card in the UK – eye contact is rarely made, never mind niceties exchanged.

In business and in life, being present is about engaging in whatever you are doing at that precise point in time. In a boring conversation, stay with it; if the kids want to go kick a ball around, go with them; if your mum is talking to you, focus on her and not the mobile phone in your pocket. Being present makes everything more real and provides opportunities and perceptions you otherwise have missed.

The last element:

Make their day – How does it feel when someone smiles in gratitude at you? Can’t remember, you should try it some time. Every customer has their own demands, their own ways and their own likes / dislikes. As the service / product provider, your role is to add value to that relationship by ‘making their day’. How you do this will vary between each and every customer , but getting to know them and what they value will help you to make their day. And remember….. you probably have internal customers as well, so remember to make their day as well!

Something a bit different

06 Aug
by Donna Obstfeld, posted in Blog   |  No Comments

I was sitting with a client the other day, talking about an issue they were facing.

And then the client asked me a really interesting question, and the answer to the question is useful for all business owners, in all sectors.

I’ve recorded a short video that explains what that answer was

Why we are different from DOHR on Vimeo.

 

Speak soon

Donna

P.S. When you get a chance to watch the video, I’d love to know what you think, so hit reply and let me know.

Can you turn back time?

26 Jul
by Donna Obstfeld, posted in Blog, Employees, HR Policy   |  No Comments

MP rescinds her resignation

Scouring the BBC website looking for interesting HR stories and blog inspiration, I came Two Businessmen Running in Officeacross the news that Sarah Champion MP had rescinded her resignation from the front bench and asked Jeremy Corbyn for her job back. It appears that he has agreed and that she may be the first of several who, not having forced Jeremy to resign, will now be holding out a white flag of peace and resuming their previous roles on the front benches.

It is rare that we find employees asking to return to their former employers, but not unheard of. The biggest question is should you take them back? And if you do, will the relationship be better or worse than before?

When requesting references, one of the questions frequently asked is “Would you re-employ this employee?” Responses indicate that many employers have a policy not to re-employ, but a few say they would.

Not all leavers are equal

When determining your policy on re-employment, you may want to think about the provisions and safety nets which would be needed rather than taking a blanket decision. However, with all things HR, you need to ensure you don’t discriminate or set a precedent which will be hard to manage in the future. Would you treat the following scenarios the same?

  • A Saturday worker who left to go to University and now wants a full time job
  • An underperforming employee who resigned but can’t find a better job to go to, so tries to rescind their resignation before their notice period is up i.e. while they are still employed with you
  • A top performer who is head hunted by the competition, leaves for a month and then wants to come back as they didn’t like what they found on the other side of the fence
  • A good performer who left to travel the world for 12 months and wants to come back
  • A good performer who felt they were under paid, underappreciated and could contribute a lot more to the business if you just let them, who wants to come back to the business having worked for another (non-related business) for 3 years.

In truth, we have dealt with all of these scenarios over the past 12 months and there are no hard and fast rules on how to deal with them – it comes down to relationships, personalities and setting (or not wanting to set) a precedent.

Whose business is it anyway?

RecruitmentOn the one hand, you do not want to cut off your nose to spite your face, but on the other hand you don’t necessarily want to take someone back just because it suits them to come back. Your business may have moved on. You may not have a vacancy. You may not have a need for their skills. However, feeling guilty because they were a nice person is not a good enough reason to take someone back.

When developing your policy, consider the following:
• The reasons for leaving may have a massive influence on whether you take someone back
• Their previous attendance record
• The amount of time they have been away
• The size of your business and whether you can easily absorb extra headcount
• Whether the person has a unique or scarce skillset
• Where they have been since leaving you
• The role and money you bring people back into

If you decide not to re-employ previous employees, ensure you apply your policy strictly and that all employees are aware of the policy before they leave the business.

As always, if you require any help writing a re-employment policy, do not hesitate to contact the team on support@dohr.co.uk or by calling 01923 866040

Post Brexit …. The HR Crystal Ball

15 Jul
by Donna Obstfeld, posted in Brexit   |  No Comments

No one knows what will happen to employment legislation once the UK starts to withdraw from the EU, but here are some of the key employment laws we are watching for changes.

Employment law Potential changes Business impact
Agency Workers Regulations Repeal Reduction of costs in using agency staff.

Potentially makes use of agency staff more attractive.

Greater degree of flexibility.

Working Time Removal of the 48 hour maximum

Simplification of holiday rules (interaction with sickness absence).

Simplification of rules on calculating holiday pay (overtime, commission).

Qualifying period for entitlement to holiday.

Simpler practices, wider discretion on what to include as holiday pay, and how (or whether) to arrange carryover of leave to the next leave year.
Discrimination Introduction of cap on compensation. Decrease potential financial liability for such claims.

Increase likelihood of settlement of accompanying claims (eg unfair dismissal).

TUPE Relaxation of information and consultation requirements before a TUPE transfer.

Loosening of restrictions on changing terms and conditions.

Simpler process

 

Are you a bad boss if you don’t let your staff watch the football?

17 Jun
by Donna Obstfeld, posted in Blog   |  No Comments

Today’s blog has been inspired by my brief interview yesterday afternoon on BBC Three Counties Radio. I thought I was going to get bumped as the devastating news that MP Jo Cox had died after being stabbed and shot was coming through, but the Producer decided she wanted to finish on a more positive note and were going to briefly “fit me in.”

Photo by Yui Mok/PA Wire URN:22984252

Jo Cox, MP

So, before I start, I want to send my condolences to the family, friends and constituents of

Jo Cox, MP. My thoughts are with you all at this unbelievably difficult time.

To Football or not to Football? – That is THE question!

The reason for me being on the radio was altogether different – “Are you a bad boss if you don’t let your staff watch the football?”

Now, I could have fun with this one!

During the interview we touched on:

  • Whether all workplaces are conducive to watching a game of football
  • Should Euro 2016 be treated any differently to other events i.e. The World Cup, The Olympics, The Chelsea Flower Show etc. After all, not everyone likes football.
  • What happens if you have a multi-cultural workforce supporting different teams and does this impact on which games you ‘show’?
  • How bosses should manage an employee who ‘bunks off’ work to watch the football
  • What happens if an employee who travels to France is arrested in violent clashes

 

All workplaces are not the same

There are many working environments where stopping work and watching the football is just not possible or appropriate. Imagine the scene – a large general hospital “Hold on madam, I can’t operate on you just yet as we are watching the England vs Wales match. I’ll be with you in 2 hours”. Or a large department store in a shopping centre “Ladies and Gentlemen, due to the England vs Wales match, the store is closing in 5 minutes to allow our staff to watch the game. Please return in 2 hours, when we will be delighted to assist you with your purchases”. In some workplaces, it is never going to happen. That doesn’t make the boss a bad boss, it just means they have a business to run or patients to tend to.

Cats at workSo what about the office environments or schools where the decision is taken to watch the England game. “Why the England game?,” I hear you cry. Well that is the first issue. In a multi-cultural environment, there may be employees from across Europe who want to watch games for their home teams.

When deciding how to handle the Euro 2016 fixtures, a business needs to adopt a policy which is fair and can be applied to all workers, from all countries and those who do not want to watch the football at all – yes there are people who do not want to know and do not care!

There are multiple options and no right and wrong solutions, but the normal laws around discrimination still apply. Do not discriminate against employees based on their age, gender, race, religion, ethnicity or beliefs.

Flexible working for all employees may be a good solution – staff work a set number of hours a day and as long as they make up the hours, they can watch the football. So some may start early and leave early, others may work through lunch and stay late. Employers may choose to require the hours to be worked on the specific day or may allow flexi-working across the week.

In some businesses, where there is a requirement to keep the business operational, employers may allow employees to listen to the game rather than to watch it or insist on shifts among the team. Employees who have no interest at all may agree to cover the department while the others are watching the football – but employers need to find an appropriate way to thank and recognise those employees left holding the fort.

Other considerations for the Euro 2016 season – do you screen the game in the office and 2016_euro_cup_flags_image_lglet everyone watch together or do you send people to the local pub or even home to watch the match? This may depend on your location and on the nature of your workforce. If people are likely to get very emotional and fired up to the extent that they could be abusive or ‘out of control’, it is better not to have them on the premises. This might be the case if you have employees supporting both the teams playing.

Do you supply drinks and nibbles to keep the staff at work, create more of a team atmosphere in the office and turn it into an event? This is a nice thing to do but here are a few considerations for you:

  1. If you are serving alcohol, will employees be fit to work afterwards and / or fit to drive home. Although they are all adults, you are the employer and have a duty of care and if you have supplied the alcohol and allowed them to drive home (especially if in a company car) or operate machinery, the risk sits with you.
  2. We are in the middle of Ramadan (if you didn’t read my blog last week on the topic, you can do so here). If you have Muslim employees, you must consider them when planning your football events. The best advice I can give you is to speak to them and involve them in the planning if you are intending on serving food and drink of any sort.
  3. Which games do you supply the drinks and nibbles for? All of them, just the England games? Perhaps only the Welsh games?

Whichever approach you take, talk to your staff, involve them in the planning and don’t spend a fortune on something they don’t actually appreciate.

Bend it like Beckham

Glasses of alcoholWhat happens when employees bend the rules?
If a half day off to watch the football becomes an entire day in the pub?
If an employee wakes a little worse for wear the morning after the night before and decides to take a duvet day, but is perhaps very indiscreet about doing so, sharing across social media?
Or if an employee comes back to work having consumed huge amounts of alcohol and tells your top client what he thinks of him?

The short answer is, all your normal policies and procedures must apply. Follow your normal processes for managing unauthorised absences. Ensure you have all the facts and then present them to your employee. Ensure you provide them with adequate notice of the meeting and give them the right to be accompanied. If you are going to discipline someone, follow your normal procedures and in the absence of normal procedures, get advice.

Unable to attend work due to incarceration

In the unlikely event one of your employees finds themselves on the wrong side of the law and is arrested or detained while watching a match in France, you need to take advice. You can’t automatically fire them, but depending on the circumstances, you may be able to take disciplinary action which may be termination of contract. This however is an extreme scenario and one which hopefully no employer finds themselves in. If you do, get advice before you do anything. Do not send them a text telling them they are an idiot and you are firing them – you will end up in an employment tribunal!

 

Whatever you chose to do this football season, be consistent and communicate it in advance.

Ramadan and its potential impact on your staff, your business and you

06 Jun
by Donna Obstfeld, posted in Blog   |  No Comments

ramadanMonday 6th June is the start of Ramadan this year and it reminds me of a training session which I led 20+ years ago. It was the middle of summer and about 25 degrees out. Where almost all the delegates had bottles of water in front of them, one of the employees sat in the front row with an apple in front of him. The apple sat there all morning and all afternoon. At the end of the day I asked him what the apple was for, “Its Ramadan,” he explained, “I’m fasting.” Once he explained that, I understood it, but puzzled went on to ask him why the apple was sat there if our session ended at 4:30 in the afternoon and being Ramadan he could not eat until after dark. “It’s a reminder for me. A reminder not to eat. Eating is such a natural process and everyone around me is eating, so the Apple is a constant reminder of Ramadan and the fact that I am fasting”.

The employee was aware of his religious obligations, they didn’t impact on his ability to work or to attend training courses and they didn’t impact on anyone else on the course and that is very often the case with most employees and their religious practices (or none).

This year Ramadan continues until 5th July and because it coincides with the Summer Solstice here in the Northern Hemisphere, UK Muslims will be fasting for up to 19 hours a day this year.

So how might this impact on employers?

The biggest risk to employers, apart from tired and hungry employees is the risk of a discrimination claim. As with other forms of discrimination, if an employee feels that they are being either directly or indirectly discriminated against because of their religion (in this case being a Muslim), they would have a right to bring a claim against their employer.

So here are our Hot Tips to avoid the risk of a religious discrimination claim (and by the way, these could apply to any religion):

  1. Employers should be sensitive to the needs of Muslim employees.
    1. Perhaps avoid organising a team lunch or gala dinner during Ramadan. The same would apply with putting on a food centred event of Yom Kippur (the main Jewish fast day).
    2. Avoid compulsory overnight trips. If there is an unavoidable requirement, have an open conversation with your Muslim employee(s) and agree how best to balance  the demands of the business with the religious obligations of the employee
  2. Allow short term flexibility to enable Muslims to observe their religious obligations. Any short term arrangements should be confirmed in writing as such and clearly communicated to all employees.
    1. Speak to Muslim employees and agree what is reasonable
    2. Provide a suitable space / room for prayer during the day
    3. Being flexible with start and finish times during the working day may be beneficial to facilitate fasting. Where employees work shifts, these could be used to limit the impact of Ramadan on the business.
    4. Fasting employees may appreciate working through their lunch hour and being able to start late or finish early. This may avoid long walks to / from work in the heat or crowded commuter trains.
    5. Breaks can also be altered on a temporary basis. But it is important to ensure that all employees still take regular breaks.
  3. Create an environment in which Religious needs can be discussed openly and balanced with the requirements of the business.
  4. Managing decreased productivity and performance issues
    1. Care needs to be taken to ensure that employees whose performance drops as a result of the impact of fasting are not indirectly discriminated against because of their Religion. It doesn’t mean that you can’t take action, just that you need to be very clear that this is a prolonged performance issue and not one directly related to Ramadan.
    2. A robust investigation should take place into the drop in performance Ramadan 2and reasonable adjustments put in place before any kind of disciplinary outcome is considered.

Annual Leave for Eid

Eid – al – Fitr is at the end of Ramadan and is a holiday and celebration for many Muslims.

Hopefully all employers have a robust annual leave policy in place for managing holiday requests, however this may include how much notice must be given and the number of people out of the department at any one time.

If you have a number of Muslims employed in the business or in a particular department, advanced planning should be done to ensure that there are enough staff to cover the holiday requests. This is a religious holiday and although staff will usually be asked to take it from their normal holiday entitlement, it may still generate late requests (as the specific dates vary year on year) or multiple employee requests.

The key is planning ahead and knowing that Ramadan and Eid will happen on an annual basis. Understand how it will affect your employees and your business and work as a team to mitigate the impact.

The Employment Legislation Outlook

03 Jun
by Donna Obstfeld, posted in Blog, employent law, National Living Wage, National Minimum Wage, pay   |  No Comments

Below is a summary of planned employment legislation changes.

There are a couple of things to note:

  1. There was no statutory increase in rates in April of this year, except for Redundancy which increased by £4 per week
  2. There may be an alignment of the National Minimum Wage Increases and the National Living Wage increases as the October rate increases have been announced as being in place for 6 months to March 30th 2017
Jan – June 2016 Consultation on extension of shared parental leave and pay to working grandparents – if approved, legislation timetable to follow.
18 June 2016 Posted Workers (Enforcement of Employment Rights) Regulations 2016 expected to come into force.
July 2016 Public sector exit payments clawback regulations enforcement expected.
7 September 2016 New financial sector whistleblowing rules to be introduced.
1 October 2016 Increase in National Minimum Wage
October 2016 Gender pay gap reporting regulations coming into force (first reports due 2018).
October 2016 Earliest likely implementation date for measures in the Immigration Bill 2015-16.
April 2017 Increase in National Living Wage for over 25’s
Potential increase in National Minimum Wage
April 2017 Potential increase in Statutory rates in line with CPI
6 April 2017 Apprenticeship levy due to take effect.
30 April 2017 ‘Snapshot’ gender pay gap reporting begins for employers with 250+ employees.
September 2017 30 hours’ free childcare becomes available for 3 and 4-year olds in working families.
October 2017 Potential increase in National Minimum Wage – if not raised in April 2017
April 2018 Increase in National Living Wage for Over 25’s
April 2018 Potential increase in Statutory rates in line with CPI
30 April 2018 First gender pay gap reports to be published by organisations with 250 or more employees.

High Heels and a Noose Around the Neck

23 May
by Donna Obstfeld, posted in Agency workers, Blog, employee rights, Policies and Procedures   |  No Comments

What makes my line of work fascinating …. People!

What drives me to destruction …. People!

There is an old saying ….. “there’s none so queer as folk” and in my line of work I never cease to be amazed by what I see, what I hear and how far people (both employers and employees) are prepared to rub up against the very edges of the law.

I regularly get calls from BBC Three Counties Radio being asked to comment on an HR story which has hit the news. This has ranged from Jeremy Clarkson hitting a producer to dogs being allowed in the workplace and most recently a female employee being sent home from work because the heel of her shoe was not high enough and a butcher who advertised a vacancy but didn’t want any drama queens to apply!

Interestingly, I have now noticed that ahead of going live on air The Producer always asks BBC 3 Counties Radiome my opinion and then the presenter takes the opposite view point. Over the years I have been doing this, I know exactly how the presenter would generally respond (regardless of my view point), but once the discussion gets going he ensures we have a good debate around the issues. Some of these discussions become very interesting as we can generally both argue for the employer and the employee on both sides on any argument.

This is one of the greatest problems faced by employers, you can always see a situation from multiple perspectives and making the ‘right’ decision will depend on your business, your morals, the law, your finances, the individual themselves and the rest of your team (both internal and external). It is very rare that there is a black and white decision with no risks attached.

One recent interview focussed on an agency worker who had been assigned to work on reception in the London office of a global management consultancy company. She had been informed that a uniform would be provided on arrival and that she needed to wear black shoes with a heel of between 2 and 4 inches. She was wearing smart black flat shoes but was sent home as she was ‘inappropriately’ dressed.

Now on the one hand, an employer is absolutely entitled to have a dress code policy and enforce it; but on the other hand it must be reasonable and not expose the employer to any risks. In this case the risks are that the employee can bring a sex or disability discrimination claim:

  • A male employee would not be asked to wear a heel of between 2 and 4 inches.
  • An employee with a knee or back problem might struggle to wear a heel
  • There is no requirement of the role to wear such a heel
    • Examples of job related requirements might include:
      • the use of personal protective equipment i.e. steel capped shoes, hi-vi jackets or ear defenders
      • training shoes in a gym environment to protect the floor
      • lace up shoes for the police

TiesIn a similar scenario we dealt with recently, an estate agent had a dress code policy in which all employees were required to wear suits. For ladies this could be a trouser, skirt or dress suit, but it had to be a business suit. This was clearly stated in the dress code of the company and was in contracts of employment which every employee was given and signed before commencing work. A male employee refused to wear a tie. His manager asked him nicely and informally. His manager called him into a meeting to discuss any issues or concerns and to point out that there was a contractual obligation. The employee’s attitude was “I’m not wearing a tie and you can’t make me” – my polite interpretation and a summary of the conversation. The line manager warned the employee that they were in breach of company policy, that everyone else complied with the policy and continued failure to follow a reasonable request would lead to disciplinary procedures.

As in so many cases we see, the employee goes running off to the doctor. Now usually they come back with a fit note signing them off work for 4 weeks due to work related stress a.k.a. being asked to do something they don’t want to do or being told that they could face disciplinary action. (Don’t get me wrong, there are plenty of employers who do put their employees under incredible, unacceptable stress, but we are talking about a tie).

In this instance, the employee returned with a fit note from his doctor stating that wearing a tie gave him migraines. So what does the employer do? The doctor says the employee can’t wear a tie. Well, is it the tie which is to tight or the short collar? The employer, willing to make a ‘reasonable adjustment’ gave the employee four options:

  • Undo the top button, and then push the tie up to hide the open collar
  • Buy shirts with larger size neck sizes
  • Buy a collar extender to increase the neck size
  • Wear a clip on tie

The employee still refused. He ended up in a disciplinary meeting the outcome of which was a written warning. He is still refusing to wear his tie and the company will be taking further action.

Is a tie, or the height of the heel worth making a fuss over? Well, that depends on the nature of your business.

Is the dress code policy reasonable and appropriate to the working environment? Each employer needs to think about whether they want their staff in specific clothes or a uniform or in deed to refrain from wearing certain clothes. Every business owner needs to decide what is right for them, their business and their clients. For some businesses and organisations, it doesn’t matter at all, while for others the staff wearing branded clothes or specific colours or personal protective equipment is expected and essential and in some instances, the dress code may only apply at specific times or locations.

Whatever dress code you want to enforce, there are 4 golden rules:

  • Be clear about what is and is not allowed / required
  • Check that the policy itself is not exposing your business to the risks of discrimination claims
  • Document your policy (ideally in your contracts of employment) and ensure that it is properly communicated to remove any doubt
  • Be consistent in its application, so as not to discriminate against any group of employees

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