Agency workers

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.

 

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

Rights for agency workers

27 May
by Donna Obstfeld, posted in Agency workers, Benefits, employee rights   |  No Comments

It’s in the news on a daily basis at the moment. The proposal to give agency workers the same rights as permanent workers. Good idea? Well, as with everything else in life, that depends on which side of the fence you analyse the situation from…….

The agency worker plays many different roles within organisations including:

  • sickness cover
  • holiday cover
  • maternity / adoption cover
  • peak season resourcing
  • special project resourcing
  • getting around recruitment freezes
  • getting around having no headcount
  • actively managing the workforce to provide a lean core operation and a flexible peripheral operation
  • Lower cost model as no benefits are due from the company

At the moment, agency workers are paid by their agency and the agency invoices the company for a service. The agencies tend to fix the rate depending on the skills, experience and the nature of the role to be performed. The agency also charge a % fee on top of the hourly rate that the agency worker gets. Part of this fee is to provide sickness and holiday pay to the agency worker.

Under the proposal, after 12 weeks working for a single employer, the agency workers will be entitled to the same pay and benefits as the permanent members of staff. I believe that in some cases this is absolutely right. In the case of a recent client, one secretary had been an agency secretary for the client for 10 years – without a break. She was not entitled to the same holidays, pension, notice periods etc. For 10 + years of loyalty….. that is just not right! It also costs the company a fortune in agency fees – where is the business sense in that?

For a short period of sickness or holiday cover, I fully accept that it is more practical to use an agency worker, but on long term assignments agency workers are not the solution. Recruit employees on fixed term contracts if necessary, move them around as they are needed within the business, multi-skill the workforce to reduce costs and improve motivation – think laterally and respect the human resources which are fundamental to the business success.

If an organisation does use agency workers, the model needs to be changed. Agency workers need to work for one agency and be employed by that agency. If they want to work for another agency they should resign, just like an employee would have to do from their job if they want to work elsewhere. The agency should commit to certain levels of work, pay and benefits in line with an industry standard. The like for like comparison should be with other agency workers operating in the same environment, not with permanent members of staff at the client organisation.

It is not just a piece of legislation which is needed, it is a change in attitude and buying behaviour of organisations and the supplier behaviour of agencies.

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