employee rights

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.

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!!!

 

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.

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

How Well Does Your School Promote Equality?

18 Dec
by Donna Obstfeld, posted in Blog, Discrimination, education, employee rights, Equality Act, Equality Bill, Schools   |  1 Comments

Equality and DiversityYour school is keen to promote equality. However there have been reports recently suggesting that some schools are not publishing equality information as required by legislation. Therefore, now might be the time for you to ask just how well your school promotes equality. Use the questions below to help you to review your current approach.

 

 

#1 – Do You Have An Equality Policy?

You need a document that sets out how you intend to make sure you deal with equality issues in accordance with the law. What does your document say about how you treat your staff? What does your document say about how you treat students?

#2 – Have You Committed To Implementing Your Policy?

Creating a policy is a start. You also need to ensure you have procedures in place to guide staff on how to implement the policy and to help embed the policy in the culture of your school.

#3 – Do You Have Robust Reporting Mechanisms In Place?

Do you have ways of bringing concerns to the attention of the right people, if issues related to your equality policy emerge? Have you made sure that people in school do not feel inhibited about reporting their concerns about equality?  Do people feel confident that, if they report their concerns, they will not themselves be blamed for causing problems?

#4 – Do You Have Review Mechanisms In Place?

Every policy needs review. Is there a committee, or are designated individuals, tasked to make certain your policy is being implemented and working as it should?  How is change sanctioned? Do the people who review the working of your policy have the authority to make changes or do they simply recommend change?

#5 – Do You Share Good Practice?

How is the issue of equality being dealt with in other local schools and in schools similar to yours? Do you know? Do you share what you do well with other schools? Do you also learn from other schools, and introduce new ideas which work well elsewhere into your own practice?

Are you keeping up to date with any changes in legislation that may affect how you manage the issue of equality for the future?

… Finally

Do you take the time to listen to what people say about your equality policy? If you asked the question: how well does our school promote equality in the staff room or at the school gates, are you confident that you would receive the sort of response you would like to hear?

DOHR are specialists in HR. Check out the services we offer to schools: http://dohr.co.uk/schools/ If you like this post, please share it on Twitter, Google+ and LinkedIn.

Have we missed anything?  Let us know in the comments below.

Feeling The Heat

17 Jul
by Donna Obstfeld, posted in Absence, Blog, Business Continuity, employee rights, employent law, Health and Safety   |  1 Comments

With temperatures soaring and no sign of an end to these wonderful hot days of summer, employees and employers are both feeling the strain. For absolute clarification …… there is no legal maximum working temperature and to this point, a group of MPs now want to introduce a maximum working temperature of 30 degrees (lowered to 27 degrees for strenuous jobs). 

So how practical is such a proposal and what would its impact be on businesses?

There are some employees who are constantly working in high temperatures regardless of the weather outside. Chefs, metal workers and miners all work in hot environments and although there are health and safety precautions in place, the work still needs to be done.

So what about an office worker or a retailer assistant, could they be sent home when it reaches 30 degrees? What would happen to businesses? With a law that sent people home when the temperature rose, businesses would not be able to operate and would face closure. Is that practical for ice cream shops, beach side cafes and outdoor entertainment facilities such as theme parks and zoos who would all do there best business on hot sunny days? It certainly isn’t practical to have a law for some businesses and not for others perhaps based on location or products.

Employees in hot countries such as Spain and Italy work in the heat on a regular basis and although concepts such as siestas and long lazy lunches are a familiar tradition, these are increasingly being phased out in multinational companies where they need to work with the rest of the world.

Air-Conditioning as standard also makes the heat more bearable in some countries, but there are many workers who would not be able to benefit from such facilities and they would be expensive to install and run for small companies in the UK.

What can employers do to reduce the impact of the heat?

There are several cost effect steps employers can take to tackle short term heat problems (and being the UK, this will be short term):

  • Where possible, relax the dress code. Clearly communicate what is acceptable and what is not.
  • Ensure that blinds are drawn to keep out the sun as much as possible (also make sure there is no glare on monitors)
  • Once the sun has moved to another side of the building, open windows and keep interior office doors open to help the flow of air around the building
  • Ensure there is cold water available for staff, either in a fridge or in a water cooler if the tap water is not cold enough. Staff should also be encouraged to bring in their own supplies.
  • Encourage regular breaks and perhaps increase the number of breaks or the length of breaks
  • Enable staff to move around  a little more if they are usually sat in one place
  • Consider earlier starts or later evenings with longer breaks so that people aren’t travelling in the rush hour and working in the heat of mid day (how very Mediterranean)
  • Purchase some fans to increase air flow

Employees must take practical steps to ensure their safety.

As with all things health and safety, employees do have a duty to look after themselves at work and discuss any concerns with managers in a practical way. Not turning up for work due to the weather or its effects (dehydration, lack of sleep, too much sun) is not acceptable, and an organisation has the right to discipline staff it believes have not taken reasonable steps to be at work. Staff must:

 

  • Ensure that they take on sufficient water during the day
  • Dress appropriately for business and the temperature
  • Pre-book any time off during the summer, phoning in on the day is not acceptable
  • Ensure that any food they eat at BBQs is properly cooked!!!
  • Ensure that alcohol consumed out of work does not impact time at work in any way. As well as alcohol consumption increasing in the summer, the heat intensifies the impact it has on people.

Large Employers vs Small Employers

12 Nov
by Donna Obstfeld, posted in Discrimination, employee rights, Employment Legislation, HR, HR Consultancy, HR Policy, Human Resources, public sector   |  No Comments

So often when I am advising my clients on HR issues, they ask me how the big boys do it. How do they operate in the way they do? How do they get round the employment legislation advice I am giving my clients? My answer has usually been something along the lines of – they have enough people to manage, they get good HR advice, they are very familiar with the contents of employment legislation etc.

Listening to Moneybox Live on Radio 4 this week, I was horrified at what I was hearing! The topic of discussion was equality, rights and pay at work. Many of the callers worked for large, unionised public bodies, yet the degree of discrimination was alarming. As an HR Consultant, I could not believe that the behaviours and attitudes reported were stilling going on in large public organisations today.

So next time my clients ask me how the big boys do it, I will tell them that they do it badly and do and will continue to pay for their mistakes until they start complying with employment legislation.

Small companies can not afford the cost of defending employment tribunal cases, they need to ensure they are fully compliant as soon as possible and stay that way by updating their HR policies and procedures as employment legislation changes.

Things to consider when employees work from home

28 Oct
by Donna Obstfeld, posted in Business, Contract of employment, employee rights, employent law, Employer Sponsorship, Employment Legislation, Equality Act, Flexible working, Home-workers, HR, HR Policy, Part-time Workers Act   |  No Comments

There are several reasons why an employee may be working from home, but in this article, we ignore the reasons behind home workers and focus on things an employer must consider to ensure legal compliance and business effectiveness of the arrangements.

A home worker must have a workspace which is fit for purpose. Whether the role involves a computer at a desk or a telephone, paper and pen, the employer must make sure that the employee has adequate seating, lighting and desk space as required.If the employee has stock or samples to store or move around, the employer must again ensure that this is done safely and with no risk to the employee or other people at the house.

Although the duty of care falls to the employer, there is an obligation on employees to play their role in establishing and maintaining a healthy and safe working environment. They must ensure that they make use of facilities provided and inform their employer if there are any changes in circumstance.

As well as the physical environment, employees must ensure that they psychological environment is appropriate for work. An employee must be able to fully focus on the job while they are working. They should not have young children or large dogs running around or a constant flow of callers to the house. Employees are expected to be undistracted and to dedicate themselves 100% to their job, during their working hours.

Communication is essential to making a home worker relationship effective. Whether one member of the team or the whole team works remotely, it is vital that regular communication channels are established and maintained. Ideas include weekly team calls, group emails, newsletters and monthly meetings. The exact contents of these will vary depending on the nature and culture of the business, the type of work being done from home and the personality of the home workers themselves. The purpose of the communication is twofold: to ensure that the employee is engaged with the business and therefore wants to contribute to it’s success; and that the work delivered is what is expected and required by the business. Home working can be isolating and good communication will lead to better outcomes.

Other considerations include the type of work being done. Is the home worker merely based at home for contractual reasons and then travelling around to effectively do their role? Or does the role require the employee to be sat at a desk all day working? What support and training does the employee need? What additional tools do they require to do their role? If they need a car, is one provided in the same way as it would be for an office based employee? If they need internet access or a dedicated phone line, how does this get paid for?

Employment legislation applies equally to home workers as it does to office based workers and compliance with Acts such as the Equality Act, The Working Time Directive and Part-time Workers Regulations all still apply. Does the home-worker have the same terms and conditions of employment? Are their pay and benefits the same as they would be if they were based in the office? Is there someone doing the same job as them based in the office and are the two employees treated equally. The only contractual difference should be their location.

When considering using home workers, consider their home as a satellite office. You don’t have the right to turn up unannounced, but they are employees and should be managed in a fair and equitable way, helping the business to achieve it’s goals.

For further information and support on employing home based workers, please contact DOHR on 01923 504100 or at www.dohr.co.uk

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