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

Auto Enrolment is coming….. ready or not

09 May
by Donna Obstfeld, posted in Auto enrolment, Blog, pensions   |  No Comments

Walking on moneyI know I am going on about it constantly, but I have been going on about it constantly for a number of years now and yet…. and yet I still find that our clients:

  • do not want Auto Enrolment
  • do not want to pay the ridiculous set up fees which many providers are charging and
  • do not want to make contributions to their staffs’ pension pots.



No Choice

However, in short…. you have NO CHOICE. If you employ even one employee, you must provide them with a pension facility and if they do not opt out, you must make contributions to that pension pot. Whether they are the cleaner, the housekeeper, or the admin assistant, whether they are your son, aunt, mum or best friend…. if they are on your payroll and an employee of your business, you must ensure that you have complied with the red tape and bureaucracy.

A word of warning at this point…. If you make them self-employed or contractors to avoid tax and / or pension obligations, there are significant implications with this as well. In some cases ‘workers’ are also entitled to pension contributions.

They want your hard earned cash

The fines for non-compliance are very heavy and may be up to £500 per day. The number of Escalating Penalty Notices issued by HMRC in Q1 of this year is up almost 4 times on the same period last year as an increasing number of small businesses need to comply and are failing to do so. Actual fines issued rose 6 times between March 2015 and 2016.

Check your dates

Since June 2015 employers with less than 30 employees have gradually been required tocalendardate join auto enrolment. The actual staging date is based on the PAYE reference number so employers and their accountants must find out when their actual deadline date is as the implementation period stretches across 2 years. There is a quick guide here, but if you haven’t started to prepare for Auto enrolment, I strongly urge you to do so.

All Change

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

Redundancy Pay

No one likes making staff redundant, but sometimes needs must and when the time comes Walking on moneythere is a formal legal process which all employers must follow otherwise the dismissal is automatically unfair. A series of letters must be sent and meetings must be held, even when it is just one employee being made redundant.

As part of this process, there are two primary payments which need to be made to the employee – Notice pay (although the employee can be asked to work their notice) and Redundancy pay.

Redundancy pay is one of the only areas of employment in which age must be taken into consideration as the amount of money an employee is paid is based on their age and their length of service. Each year the Government provides us with a statutory minimum which, providing actual weekly pay is higher than this amount, must be paid for each week of redundancy pay due. This rate increases from 1st April from £475 per week to £479 per week. Not a massive increase I know, but you do need to ensure accurate pay calculations.


National Living Wage

The New National Living Wage is coming into effect for employees over the age of 25 on 1st April. All other rates will remain unchanged, but it is essential that you check that you are paying your staff the new rates. There is a download available here for all the annual salaries based on hours worked per week and age. You also need to ensure that you are paying at these levels for holiday and bank holiday entitlements. These need to be properly pro rated for part time employees. If in doubt, give us a call.

Childcare Vouchers

Dad babyIn a recent Employment Appeals Tribunal Case, it was determined that Childcare Vouchers can be stopped during maternity leave. Up until now they have been considered to be a benefit, but as a result of this case they are considered to be pay and therefore can be stopped while an employee is not earning their salary.

Local HR practice DOHR wins not one, but two awards

22 Mar
by Donna Obstfeld, posted in Press Release   |  No Comments

Corporate ExcellenceFollowing their triumphant win as ‘HR Consultancy of the Year’ last year, DOHR has now won a further two awards to add to their collection.

The first is the Corporate Excellence Award for ‘Best for Support Services’. This is awarded by Corporate Vision who state: “When it comes to the business world, true excellence takes many forms. From an unwavering commitment to customer satisfaction and consistently stunning results, to the never-ending quest for innovation and the ability to change, not only a department or business but an entire industry, firms mark themselves out as exceptional in countless ways.”

They go on to say “The 2015 UK Corporate Excellence Awards focus on those firms and individuals across the British Isles, regardless of size, age, specialism or value, that are not just successful – that goes without saying – but undoubtedly and demonstrably special; the people and businesses that define how we view and regard their entire industry and who, taking their place firmly at the forefront of their respective sectors, become a byword for forward-thinking excellence and achievement.”

Building on this winning streak, DOHR has also picked up Corporate Livewires’s ‘Most Outstanding HR Consultancy Firm – UK 2016’. These are global awards with many household names among the winners from 2015. DOHR have been told that they were nominated and selected for the award specifically because of their SME employment legislation compliance product HR in a Box™ as it is not only cost effective, but also innovative, business focussed and practical”.

Understandably DOHR Managing Director, Donna Obstfeld is delighted by these wins. “The awards process is still a bit of a mystery to me, but I am thrilled that we have been nominated and then selected as winners of these two business world awards. To have the recognition last year within our own industry was great, but this just takes it to another level as the business world starts to realise the value that we as an HR practice, are able to add to their business success.”



DOHR Press Enquiries

Charlotte Mitchell

Tel: 01923 866 034

Email: enquiries@dohr.co.uk




Notes for Editors:

  1. Donna Obstfeld is available for interview
  2. DOHR is an HR practice supporting micro, small and medium sized businesses. They are based in Hertfordshire and clients are nationwide.
  3. If you wish to reproduce this article on your website, please link back to the original source dohr.co.uk/2-awards
  4. For more information about the Corporate Vision awards visit http://www.corp-vis.com/awards/2015-uk-excellence-awards/
  5. For more information about the Corporate Livewire awards visit http://www.corporatelivewire.com/awards.html


Could you win an employment tribunal case if you needed to?

27 Jan
by Donna Obstfeld, posted in Blog, Contract of employment, Employment Legislation   |  No Comments

Most of our clients are terrified of the thought of ending up in an employment tribunal, not because they have done anything wrong, but because of the hassle, aggravation, time and money it takes to defend the case. Although the UK government have brought in charges in the hope that this would reduce the number of spurious claims, many employees are still able to find a solicitor willing to take on their cases and make something out of not a lot!

With this is mind, I was very interested to read an article this week which provided 5 reasons why companies lose employment tribunals and they are not what you might think!


stressed ladyThe first reason that a company may lose a case is because they are not likeable. As with everyone else you meet in life, an employment tribunal chairman is human with their own likes and dislikes. If the facts of the case mean that both the employer and employee could be right, perhaps a case of ‘he says she says’, then the chairman may go with a gut instinct about who is the ‘good guy’ in this struggle.

As the employer, your job (or that of your defence team) is to win over the affections of the judges so that you are perceived to be the good guy. The winning over may actually happen as a result of what has happened in the workplace. If you can demonstrate that you have always tried to be supportive, that you have always had the best intentions and that you have genuinely cared, but the employee has just taken advantage of you and left you no alternatives, then the judges may see you very differently if the behaviour which has led to the tribunal is part of a string of normal, perhaps bullying behaviour.

However, if the winning over needs to be done in the court room:
• Remember your manners
• Don’t argue
• Don’t talk over people
• Show empathy
• Admit any situation, where with the benefit of hindsight you could have done something differently (as long as this does not undermine your case)


The second reason identified as likely to lead to losing a case is loss of evidence.

Now this one made me laugh and took me back to October 2004. I was working in a further education college and was helping with an HR department to relocate. There was a locked filing cabinet and nobody could find the key. I refused to move the cabinet into the new, much smaller office space unless we knew what was in it and eventually called facilities and asked them to bring me a crow bar!!!

When the caretakers came up with the crow bar they kindly did the breaking for me and in 3 of the 4 drawers we found all the evidence for a tribunal case which had taken place 2 years earlier and the college had lost because they didn’t know where their evidence was. Seeing the contents of the filing cabinet, one of the HR team said ohhh, that must have been Mrs Jones’ filing cabinet, I think she took the keys with her when she left.

Regardless of the merits of the case, they deserved to lose if they didn’t have the wherewithal to work out where their evidence might be, given that it was in the corner of their office all the time.
Not having the right documentation in place at the time the incident / behaviour happened is the third reason given for employers losing an employment tribunal.

This is a problem that we have identified among our new clients, who tend to come to us once they have a problem and by that time, it is sometimes too late to put the right policies, procedures and practices in place. We find ourselves shutting the stable door after the horse has bolted.

For an employer to have a mandate to manage their business the way they want to, they need to have the right policies and procedures in place which are documented, communicated and complied with. Failure to do this just exposes your business to so much unnecessary risk. This is actually what led us to develop our HR in a Box™ product to enable micro businesses with up to 10 staff to adequately protect themselves.

When you are preparing your case for the employment tribunal, you will need to provide evidence of policies, communication etc in your bundle and it is essential to your defence that you can produce these.


The next reason why an employer may lose a tribunal may be down to the quality and preparation of their witnesses.

For anyone, the thought of giving evidence in a court or tribunal can be very daunting, so ensuring that your witnesses are properly prepared, fully understand what they are there to get across and are focussed on their facts is essential. The opposition will try to make things as difficult as possible for your witnesses, will try to undermine their credibility and to confuse them about their story. Your witnesses need to be prepared for this, even to the extent of role play cross examinations prior to the tribunal so that they know how it feels to be aggressively questioned and challenged.


Finally, employers need to show passion. You need to show that you truly care about your business, your staff and the situation you have found yourself in. You need to make the time to prepare properly for the case, you need to prioritise the headache of the tribunal at an early stage, so that you create the time and space needed to provide a consistent, passionate and robust case.

So, in summary:
1. Be likable
2. Don’t lose your evidence
3. Make sure policies and procedures are documented now to avoid problems later
4. Make sure your witnesses are adequately prepared and know what to expect
5. Have passion and be consistent

To add a cheeky sixth point here, a lesson from my Scouting Days ……. Be Prepared. A strong case can fall apart if not properly prepared and a weak case could win if enough preparation has gone into it.

Zero Hours Contracts – do they have a role to play in your business?

20 Jan
by Donna Obstfeld, posted in Blog, Contract of employment, employent law   |  No Comments

Since May 2015, employers have not been ‘allowed’ to include exclusivity clauses in zero hours contracts of employment. However at the time, there was no penalty against them if they did so or if they disciplined an employee or treated them less favourably for working elsewhere or asking for permission to work elsewhere.

Finally, some decisions have been have been taken and legislative changes made which will give workers additional protection and enable business owners to decide whether or not zero hours contracts are appropriate for use in their business; whether they provide the flexibility the business requires and whether they are the most appropriate form of contract to use.

The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 came into force on 11th January and provides employees with a number of rights and more importantly consequences for the employer if these rights are breached.

signUnfair dismissal and the right not to be subjected to detriment treatment

Any dismissal of a zero hour contract employee is automatically unfair, if the main reason is that she/he breached a contractual clause prohibiting him/her from working for another employer. No qualifying period is required to bring such an unfair dismissal claim; and, it is also illegal to submit a zero hour worker (note: worker which means they do not have to be an employee!) to detriments if they work for another employer in breach of a clause prohibiting them from doing so.

Employment Tribunal

Employees and workers now have more rights at the employment tribunal with respect to claims related to their zero hours contract.

A worker may present a complaint to an employment tribunal where an employer has infringed their rights but, the worker only has three months from the incident (or last occurrence of a number of incidents) to raise the complaint. However, a tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so


Where an employment tribunal finds that a complaint presented to it under the regulations is well founded, it may take one of the following steps as it considers just and equitable
• making a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates
• ordering the employer to pay compensation to the complainant. The employment tribunals have discretion over the amount of compensation awarded and again refers to a ‘just and equitable’ decision.

Implications for employers

2016 employment law changesUntil there is some case law in this area, we really have no idea how this will impact employers: whether it provides enough of a disincentive to employers when considering the use of zero hours contracts and whether the compensation and fines handed out by the employment tribunals will make the use of zero hours contracts null and void.

There are many businesses where having your employees work for a competitor is not a problem, but there are definitely environments where not having an exclusivity clause will be an issue and employers will need to very carefully consider whether a part time contract will provide greater cover. At this stage we also don’t know whether a robust non compete clause prohiting workers working for a direct competitor will fall foul of this legislation.

Also the new Government guidance provides examples of what is considered “inappropriate use” of zero hour contracts and states that zero hours contracts should not be used as a permanent arrangement for an employee who works set hours each week, even if the hours worked are part time. At this stage it is unclear whether an exclusivity clause in a part time contract would be treated the same as in a zero hours contract should it be challenged in an employment tribunal.

As always, it is essential to get proper advice when drawing up contracts of employment. Zero hours contracts have been a huge benefit for many small and growing businesses, and fortunately their use has not been banned entirely, but their role now needs to be reassessed and their value carefully considered for each new employee taken on and a zero hours contract may no longer be the most appropriate basis of employment in the future.


Who looks forward to going back to work after the Christmas break?

07 Jan
by Donna Obstfeld, posted in Blog   |  No Comments

BluesOn 5th January 2016  the topic on BBC Radio 3 Counties Drive with Rob show was ‘people moaning on Facebook about going back to work after Christmas, should these complaints be taken seriously by employers, or should they turn a blind eye?’ and, as Hertfordshire’s tip top HR specialist (Rob’s words not ours), I was asked to comment on air.

In summary, it depends on the nature of the post, the audience reading the status update, the employer and the job. To listen to the interview, Click here.

A lot of the time, people experience ‘New Year blues’ and it’s only the thought of going back to work that is a hassle. Many people dread the thought of having to get up early, put a suit on, put makeup on, drive to and from work and actually wear a proper pair of shoes after wearing their slippers for the past two weeks over Christmas!! In this case, it’s just whinging and once the employee is back to their working routine and in the swing of things they are fine and therefore comments on Facebook complaining about going back to work should be taken with a pinch of salt and ignored.

However, if the comments are combined with other negative behaviours, and the employee continues to have a bad attitude, to moan about how much they hate their job and their boss or they discuss their feelings with clients and suppliers, you, as the employer need to  take notice of this and manage the situation in a calm, considered and legally compliant manner. Now, don’t be irrational and go ahead and fire them – it is not as simple as that; talk to your employee and find out what their issues are. Many people’s New Year resolutions are to get a promotion or change departments, or even change their career path completely. Sometimes people genuinely aren’t happy in the job they’re in and that is when the employer must step in and ask their employee(s), what can I do to keep you engaged and stimulated? As an employer you should do all you can to be fair and keep your employees happy, engaged and productive – it is better for business. Recent reports indicated that as many as 18% of employees start to job hunt in January and over 20% cited being bored at work as the primary motivator.

Many employees are unlikely to look forward to going back to work after having a relaxing and joyful two week break over Christmas with family and friends. Going back after a summer holiday is no different. Everyone is entitled to a little whinge and moan, however, as an employer, keep an eye out for a bigger pattern of negative behaviour, because it may be more than just a moan!

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