Snow stopped play?

Many individuals struggle bravely in to work when it snows, while others stay at home.  Some work from home, whilst others have no option but to take care of their children as schools close.  Some workplaces close due to bad weather, and others remain open, if not fully staffed. 

Who is entitled to be paid and for what?

The UK has a remarkably flexible labour market, and the answer depends on what type of contract you have got with your staff, and whether you keep the workplace open. There is no general right for employees who don’t turn up for work to be paid, and if you open your workplace and the do not turn up, you may not be obliged to pay.  Many employers do pay more than they are required to, but it is important to know when you are choosing to pay more, and when you have to pay.

Workplace remained open (hourly paid workers)

If the workplace remains open as usual, and the employees fails to make it in to work due to travel difficulties, they are not automatically entitled to be paid for their absence.  If they turn up late and they decide to go home early, they are entitled to be paid for the hours they actually work.

If you send the employee home early, this has the same effect as closing the workplace for part of the day (see below).

Employees can ask you to allow them to take the day(s) as paid leave.  You are not obliged to authorise paid leave retrospectively but if you do so, make sure the holiday records are kept properly up to date.   You cannot decide to make this a day’s leave without the employee’s consent.

Employees who have to remain home to make arrangements for their children when the schools shut are entitled to unpaid dependants’ leave.  They are only entitled to be paid for the time off if you have a contract or a policy that says they are.

Workplace shut

You are only entitled to withhold pay for a lay-off period (when the workplace is closed) if your contract with the employee gives you that right.  Check your contracts carefully.

If your contracts do provide for ‘unpaid layoffs’, employees are still entitled to guaranteed pay at the appropriate rate for the first five days lay off in any 3 month period.  For these purposes a day’s lay off is a day when less than 50% of ordinary work was provided.  Employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day.

Working at home

Many employers have working systems that mean employees could work from home – either as part of their normal working from home routine, or on an emergency basis.  These individuals are working and should be paid for the time they were working.  

Salaried staff

There is an historic tradition in the UK (fading fast) that distinguishes between staff on annual or monthly salaries, and those on an hourly rate – the old ‘white collar-blue collar’ divide.  Traditionally salaried staff are not paid by the hour, do not receive overtime when they work more hours, nor receive a deduction when they work less.

These staff are viewed as being paid for service, rather than for the particular work performed.   This group of individuals is generally entitled to pay unless the contract provides otherwise.  You should check your contracts carefully.   This applies even if no work is actually performed or where the employee is prevented from working due to factors beyond their control, as long as the employee remains ready and willing to serve the employer.  Ready and willing would normally mean making an effort to get to work where it is safe to do so.   Locally based staff who could have made it in would not be automatically entitled to pay if they did not turn up.

Many organisations no longer feel comfortable about having a two tier contract system, and increasingly have one single status contract that applies to all.  So it’s possible your hourly paid staff may be in the same contractual position as salaried staff.  A lot depends on what your contracts say.

Annual hours and flexi-hours contracts

Check the terms of your contracts – it may be that time not worked does not count for payment, and missed work will have to be performed at another time.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye

Reasonable People

We all use words to conduct our daily life.  If I could really see inside your head, I might find that what you associate with things such as ‘good’  or ‘wicked’ might be different to mine.  Many teenagers use ‘wicked’  to describe something they like!

English employment law tends to use  everyday words to describe some very specific concepts.     An employment tribunal judge  talking about ‘reasonable in the circumstances’ ( a key test of whether a dismissal is fair)  will not necessarily be using ‘reasonable’ in the same way as a typical manager.

I doubt whether anyone has woken up and thought:  “I will be unreasonable today and make decisions about my staff that make no sense whatsoever”.   However rational (or irrational) our thinking might be, we naturally tend to believe that our actions and decisions were ‘reasonable’.

Employers are often bewildered when employment tribunals don’t agree with them!    Many believe that tribunals are biased against them  (just as employees often believe the opposite).

This is because an employer’s personal interpretation of reasonable (whatever that might be) is not based on the same concepts as an employment tribunal’s.     A tribunal will be looking for a documented process to show how the decision made.  This may often include what alternatives were  considered and why they were rejected. 

Managers can be extraordinarily reluctant to go through this process – feeling that however  they arrived at their conclusion, it is a right one.   HR can be very keen to document the mechanics – e.g. the minutes of a meeting, who saw whom and when, but can be very reluctant to offer any challenge to a manager who is going down an eccentric or dangerous track.  As in any other decision making process, if the method of gathering data and evaluating it is defective, there is a very high chance the decision will be wrong.  Sometimes we all need someone to say – “Hey – pay attention to that, it could be important” or “Are you sure this is really the key issue?”

Tribunals do not look at whether a dismissal decision was right or wrong, but whether it was ‘within a range of reasonable responses’.  If the business can demonstrate a thoughtful process and can identify why other alternatives were not appropriate, it is rarely a problem to meet this test.  

Aligning your decision-making process with what the business needs, and adding in a fair degree of self-challenge at each stage, will allow you to make appropriate decisions for the business without undue fear of legal challenge.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Reasonable but wrong?

Many areas of employment law rely on the idea of a ‘reasonable belief’.   A reasonable belief does not have to be correct.  I may quite reasonably believe something that turns out not to be the case.

The idea of a ‘reasonable belief’ is crucial to areas such as ‘Whistleblowing’ protection,  where a worker who makes a protected disclosure does not have to prove that what they believed to be wrong was in fact true – merely that they reasonably believed it was.  There has been very little case law on how an employee’s belief might be evaluated under this heading.  It is likely the test will be less robust than the one applied to an employer’s beliefs (see below).

An employer who is trying to determine whether a gross misconduct offence (such as theft or gross negligence) took place does not have to establish beyond reasonable doubt that the event took place and the individual they discipline is responsible.  Employers have to show that they reasonably believed this to be so.

A reasonable belief is arrived at after a robust process which means:

The individual whose job is at risk knows what they are accused of and has an opportunity to comment

• The investigation is not tainted by prejudgement or bias
• The decision is made having taken into account the individual’s explanation
• There is a right of appeal offered

An employer who believes a theft to have taken place would be on thin ice if they could not show any goods or money had gone missing, but it is not necessary to conduct a criminal style investigation with a view to proving who is responsible.  Employers can make up their minds on the basis of the facts they have before them.  That can include, in certain limited circumstances, dismissing two or more individuals if they cannot determine (after effort) which one is responsible for the act.

The legal idea of a ‘reasonable belief’ by an employer is linked with the idea of making enquiries, testing the hypothesis by asking the individual, giving them an opportunity to give their own version of events, and then arriving at a conclusion.   The ‘reasonable belief’ is arrived at as a result of a ‘reasonable method’.

There is no room here for a faith- based type of belief – telling a tribunal that a minor deity told you who was stealing from you is not likely to impress, however profound your personal belief system might be.  There is not much room here either for ‘gut feelings’.  Managers will need to go beyond ‘a feeling’ and produce some logical reason that connects an individual with an event (and makes it something they are responsible for).  Gut feeling will be a reason to investigate, but it is not an investigation.

It is easy to get caught up in disciplinary investigations and forget to look outside our current thinking.  What seems reasonable and self evident to us, at midnight having worked three days on a problem, may seem far from obvious or rational in tribunal a few months later.   HR can play a powerful role here – in challenging the evidence and the processes with a view to seeing how robust they are.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Philosophical beliefs

Beliefs protected by the Employment Equality (Religion Or Belief) Regulations 2003 are “any religious or philosophical belief”.  Recent litigation on the meaning of a “philosophical belief” (Grainger plc v Nicholson EAT 2009) confirmed that a passionate belief in ‘man-made global warming’ could be a “philosophical belief” within the Regulations.  The Employment Appeal Tribunal (EAT) decided that the case law on the European Convention on Human Rights was relevant in this context, and that to qualify for protection as a “philosophical belief”, the belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society, and must not be incompatible with human dignity.  It is interesting to note that a religious belief does not have to pass these basic tests in order to be protected.  However the Grainger case explains that there is not requirement that a protected “belief” is one shared by others – a one-off belief is capable of being protected (although it was acknowledged that a widely shared belief is more likely to attract legal protection).  And a “philosophical belief” does not have to be a fully-fledged system of thought; but it must be genuinely held, and about a weighty and substantial aspect of human life and behaviour.

The purpose of the law could be seen as seeking to minimise the effect of philosophical or religious beliefs on the workplace – they are not to be the basis of detriments to workers, either from the employer or from co-workers.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

A shield, not a sword

Employment law provides protection in the workplace for individuals from being subjected to a detriment or harassment on grounds of religious or philosophical belief (theirs or someone else’s), or suffering an unjustifiable disadvantage because of their own religious or philosophical beliefs.  But the statutory protections are a “shield”, not a “sword”.  So an employee cannot call on the regulations to justify attempts to convert co-workers to their beliefs if such behaviour is embargoed by the employer’s rules.  And an employee cannot claim protection of their beliefs to justify ill-treatment of co-workers because they hold different beliefs, or are members of a group held in particular disregard as a result of the employee’s beliefs.  So an employee of “faith” will not be protected if their faith requires them to act in a hostile or dismissive way when confronted with particular individuals such as women, gay people, or people of different beliefs.  

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Believe it or not

A scientific belief and a religious or philosophical belief are two quite different types of belief.  The use of the same word – “belief” – to cover these two meanings can lead to confusion.  And the significance in an employment law context is that religious and philosophical beliefs may be afforded some legal protection, but scientific beliefs are not.

 A scientific belief is based upon a scientific method of enquiry, a rational process of inference and deduction based on evidence.  The results of a scientific experiment should be the same whoever conducts the experiment (providing the same methodology is used).  This test of experimental replicability is one of the key “proof” tests for scientific hypotheses.  A religious or philosophical belief is a different kind of belief, based on faith which needs no proof.  Indeed most core religious beliefs address topics in respect of which there can be no proof (in a scientific sense).

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Is our organisation structure redundant?

Our organisational structures will soon be redundant before they are published, and we need to integrate routine reviews of our structure (and small scale redundancy exercises) with our normal business review processes.   If this is not to make everyone unrealistically stressed, we need to combine ongoing skill and knowledge development so that individuals who are displaced by this process can easily be reassigned to growing parts of the organisation.

It should be the old structures that are redundant – not the people.

 

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Strategic redundancy

Naturally, we all seek to avoid redundancy exercises, so they are often done on an ‘emergency’ basis with inadequate time to prepare – and off we go again.

 There is a longer term, more strategic way to deal with redundancy.  In this world of accelerating changes to business processes, communications media, product and customer base, the structure of an organisation is an inherently unstable thing.  The days are gone when we can produce a long term plan for the workforce with any degree of confidence that we know who and what we will need.

 We need to contract people to wider and more flexible roles (without weighing them down with impossible job descriptions and workloads) and arrive at a point when all jobs evolve and flex (both in the interests of the employee AND the organisation).  The key skills for the workforce of the future will be the ability to learn.  We cannot ‘buy’ labour with ready made skills and knowledge that will last through a long term career. 

 Yet we try to fit new recruits and processes into organisational structures that are not really able to contain their potentials and achievements, nor reflect clearly the demands that may be made on them.  For example, Accounts find themselves having to work with Sales when potential large clients want financial data, and the skill requirements  between the two groups begin to merge.  And TUPE projects often need multi-disciplinary approaches from HR, Sales, Finance and Business Development. 

 Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Redundancy on the move

This year has brought an inevitable increase in redundancy exercises as organisations of all kinds have cut back to match falling revenues.  

These types of redundancy exercises are usually tactical since they are in response to short term or local conditions.  Painful as they are, they are really about ‘cutting your coat according to your cloth’.  The key thinking behind this type of exercise is retaining people with key skills for the organisation to go forward.

Employment law has had a great influence on this type of redundancy exercise, requiring objective and relevant selection criteria, consultation, consideration of alternatives, appeals and so on.  Old certainties have been challenged in tribunal as claims of age, sex, race and other discrimination have been brought to challenge selection criteria and their effect on specific individuals or groups. 

EU and UK laws have tightened up on redundancy consultation with recruitment  freezes, alternative employment and pay cuts being the front runners as alternatives to redundancy.   At the end of the day, many consultations result in enhanced redundancy payments beyond the statutory maximum in the UK (currently £380 a week).

The financial costs of such payouts can take months, even years to recoup, and the damage to morale and employer reputation of a poorly handled redundancy exercise can take years to sort out.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/

Future Of Part Time Work

Organisations still tend to have trouble with part time women who want to work at senior level (though there are some notable exceptions).  There is a feeling that being ‘senior’ requires full time attendance – at least until you get to be a non executive director! 

Part time workers tend to get the double whammy of earning less because they work less hours AND because they are relegated to less senior posts.

Perhaps the time is coming to clarify the supervisory and managerial elements of pay in a way that allows for job splitting, part time working and role tailoring.  Just as many non cash benefits have been converted to pay (e.g. company cars).  Perhaps it’s time for the compensation and benefits people to come up with a new pay structure that is transparent, fits the organisation’s needs and reflects the modern world.

How about a basic FTE wage for everyone that is the same, to which are added supplements per direct report, per indirect report, per £k of budget controlled, or other measureable financial criteria.   We can have uplifts for being on target and reductions for taking mad risks.  We can have elements for specialist knowledge qualifications and experience.

Then, if someone wants to take a step back, reduce their number of hours/reports/level of responsibility, they can calculate for themselves what this would mean financially.  Wouldn’t it make flexible working requests easier to deal with now if the person making the request could reasonably anticipate what this would mean for them financially?

Then, if someone wants to go part time, we know what elements of their role we are splitting (and which elements we are not). 

Why not have a pay scale that does not automatically reflect the hierarchical structure of the organisation?  Why not pay some ‘niche players’ more if they are really worth that much?

The future world of work is not the past and maps are already out of date.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – http://irenicon.wordpress.com/