Employment Legislation

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   |  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   |  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!!!

 

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.

Bribery – Have you protected your business?

27 Jan
by Donna Obstfeld, posted in Blog, Bribery, Compliance, employent law, Employment Legislation, Hertfordshire, Policies and Procedures, training   |  No Comments

I was in a room with 20 different employers this week and asked a simple question….

How many of you have a policy on bribery and have trained your staff in the application of that policy?

Despite the Bribery Act 2010 having come into force in July 2011, 90% of the businesses represented did not have a policy and had not trained their staff in relation to their duties under the Bribery Act. The first case has now been brought under this legislation and a court official was found guilty of being bribed to make a speeding offence disappear.

The previous bribery legislation was mixed and confusing, some of it being over 100 years old.

For those of you who are not clear, bribery is defined as ‘the giving or taking of a reward in return for acting dishonestly and/or in breach of the law’. There are four offences under the Act:

  1. Bribing another person
  2. Being bribed
  3. Bribing a foreign public official
  4. Failure to prevent bribery

It is the last of these which employers need to be especially wary of. There is an absolute obligation for employers, even those with one employee, to have a policy which ensures that employees know that bribery is not acceptable. There is also an absolute obligation for employers to brief / train their staff in relation to the law, their policy and its application to their business environment.

So what counts as bribery? Is it…..

  1. Tipping your postman for Christmas deliveries
  2. Taking clients out for dinner
  3. Taking potential clients our for an afternoon at Wimbledon
  4. Sending clothing samples to a fashion reviewer for their children
  5. Giving a FIFA official an amount of money to secure their vote in deciding the location of the 2022 World Cup? – This news broke the week the legislation came into force!!!

To find out more about The Bribery Act 2010, it’s implications for your business and how to protect your business from prosecution,  join us at the Business Essentials Conference on 29th February 2012 where you will be able to discuss the Act in the context of your business and walk away with a policy, training guidelines and some standard forms and letters. This would normally cost approximately £500 + VAT but the one day conference will cost you just £120. For more information and to book visit www.businessessentialsconference.co.uk or call us on 01923 504100.

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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