TUPE or not TUPE

The TUPE regulations [the Transfer of Undertakings (Protection of Employment) Regulations 2006] cover a range of scenarios –   from mergers to ‘service provision changes’ – which occur when the work being done by an ‘organised grouping’ of employees (which can be just one person) is moved to another organisation.

A fortune has been spent on legal fees arguing about when moving a piece of work from one provider to another is a “service provision change”, and so is, or is not, covered by TUPE.   You can see in the case reports the desperation of legal advisors and HR teams who simply failed to realise early enough that the Regulations applied to their circumstances. 

Whilst there have been some useful cases about what happens when the work is entirely dispersed across a wide range of organisations (no TUPE), the majority of contracting-out exercises (and  contracting-back-in,  and change-of-service-provider  exercises) are covered by the TUPE regulations and are likely to remain so for a while.

TUPE is a bit of a melting pot for HR and employment lawyers, since it is also part of the commercial contracting and purchasing (or sales) side of the organisation, and the thinking of those functions does not always incorporate what HR need to do to make the process work.

 In simplistic terms, an organisation considers outsourcing when the function/individuals:

• are too expensive to retain in house for the benefit they deliver;
• are isolated experts on specialist subjects for whom the organisation can offer no ongoing professional development or support;
• are  not delivering the right performance against budget;
• where an external body has made a policy decision this should be so

Whatever the reason for deciding, the end effect of TUPE is as profound in psychological terms as it is legally.

Think about it this way.  Imagine you woke up this morning with a complete stranger beside you, only to find out that the law regarded you as having been married to each other for years.  Not only that, everything the other person did with regard to your household legal affairs is something that is binding on you.  So if your new (but in law, longstanding) partner ran up a major credit card bill before you met them, you are required to pay the bill.   That is how it is for an employer who has just TUPEd in a team.

And how about being the person transferred.  Suddenly you are ‘in bed’ with a complete stranger (or worse someone you know well and positively decided never to date, never mind marry).    You are being passed around in a crazy wife-swopping party and you didn’t ask to go to the party.

No wonder people go into denial and say – this can’t be happening to me.   But TUPE is real, and it does have this effect.    You can see why people spend a fortune litigating and saying “this can’t be applicable to me”.  

If you want to join our free KoffeeKlatch seminar to talk about TUPE register via http://koffeeklatch.co.uk/category/tupe/

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

 

When Mum can’t turn up for the school play at Christmas..

Annabel: The school system is remarkably unable to link up with parents and bosses when it comes to Christmas. A few weeks before Christmas we get notes about Christmas plays and concerts (a must do for at least one parent in most households) and to cap it all a lot of schools close at lunchtime on the last day of term meaning someone has to pick the children up mid-day.

Allie: We have constructed The Perfect Christmas Fantasy. But it is a fantasy. It works well as a fantasy, but is really hard to make work in practice! Add in to this mix, if you are a teacher, that you probably have children at different schools plus commitments to your own school, and the whole thing starts to become a logistical nightmare rather than a celebration.

Annabel: While it can be OK in some firms for the non parents to disappear down the pub, it can be a bit tricky to try to organise an early finish for a school run or school play. We are always afraid the boss won’t be happy about it. There is no overall legal right to time down the pub or the school run but bosses can find it hard to deal with everyone wanting to be off to party or do family things.

Allie: Flexible teams are more likely to accommodate this. If you have been the person who never gave an inch throughout the year it may be difficult to get your colleagues to agree.

Annabel: Your request to take time off for the carol concert is one of many things a boss has to juggle. There will be times when you can’t go. Sometimes your partner, parent or someone else will have to be there.

Allie: Ask your child which is the most important event for them and try to focus on going to that one. Follow it with a favourite meal or other celebration. This makes the day stand out and be memorable.

Annabel. If you need annual leave around Christmas to cover school holidays you need to book this up really early. While bosses are sympathetic to the odd babysitting let down, you can’t just leave them hanging every time something goes wrong at your end.

Allie: Consideration is the key. If you want consideration you also need to give it. It’s also a very good model for your child to understand sharing in the grown up world. Balance your attention throughout the year, rather than trying to do everything during the festive season.

Annabel: Many organisations have to roster staff over Christmas. While many colleagues volunteer so that those with young children get Christmas day, there is no general legal right to get the days off you want. There will be people on Christmas day who don’t get to see their kids open their presents. We are all grateful for that when we need their help.

Allie: There are lots of qualities that are good to focus on at Christmas time other than celebration. Commitment, dedication, loyalty and many others you can name.

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

The past is no guide to future performance

Mary is an established member of her team, with good social and professional relationships with her co-workers.  Her boss has managed the unit with a fair degree of success (neither perfect nor imperfect), and everyone knows where the boundaries are and what is expected of them.

Boss moves on with fond farewells.  New boss Sarah arrives, with her own way of doing things.  Mary feels put out by the changes, and wants to carry on working as before.    She complains to colleagues about the changes, and starts to campaign with them that they should not implement them.     She tells her colleagues that many of the changes are pointless and will not work, and she will not participate in them.   When a colleague tells her “Sarah’s the boss, why not just do what she says?”  Mary turns on her heel and laughs.  Although Mary is a valued member of the team, her campaigning is making life very difficult for her new boss.  The team is dividing into ‘pro Sarah’ and ‘pro Mary’ camps.  Mary talks about “I was here first”, and “it worked well before”

Sarah was a very popular boss with her old team, and she is well liked by some of the new team.  She is very approachable, regularly buys drinks for everyone in the pub, and is willing to bend the rules to help her team members, letting them go home early if needed.    Standards are slipping a bit – the old boss was a stickler for detail, whereas Sarah is more of an overview person.   No-one from outside would notice the difference, but old team members shrug their shoulders and pick up the slack.  Sarah doesn’t seem to know.

Why is it we are so bad at change? 

Planning for change, or accepting changes that are not planned, is something few us are willing or able to do.

Sarah went into a new team without a clear plan for how she would evaluate whether change was needed, communicate that change, implement it, and monitor it.  She just did what worked well in her old team.

Mary did not expect any change except for the name of her boss.   When faced with change she resisted it all.  

If the team is lucky there will be a natural mediator on the team – one of those wonderful people who are the glue that really make the workplace work.    We need someone to say to Mary: “The boss is the boss.  Unless it is dangerous, or illegal, it is her job to say what we do.  If you think it is inefficient or there are better ways, have a quiet word with her and let her know, otherwise you need to do it.”   And we need someone to feedback to Sarah that she is changing how things are done (she may not be aware of it), and that she needs a process for bringing people along with her and for dealing with Mary.

How many HR specialists does it take to change a light bulb?

That depends on whether you want to keep the light bulb.

Sarah could have a useful learning experience that will enhance her skills and make her next promotion easier, or she could struggle with Mary and slowly begin to fail – she could get stuck here.  Mary may even accuse her of bullying, as Sarah repeats the same instructions over and over again and Mary gets progressively more isolated from her team.

Mary can learn how to handle change and difficult situations.  Or she can campaign against her boss, and sooner or later she will find herself with no promotion prospects, and quite possibly no job.   Mary can feel bitter that her lovely job was ‘stolen’ from her by this awful manager – an attitude that may affect her life at home as well as at work.

It’s not a big deal to help new managers put together a system of ‘raising the bar’ so that they can change the way a team works.   It’s not such a big deal to help Mary (at an early stage) to work out the difference between changes she needs to give feedback on, and those that are not really something to worry about.

So where were HR when all this was happening?   They were busy with other important things.  They had not routinely touched base to see how this team functioned.  Of course, when Mary claimed she was being bullied, and Sarah claimed she was totally unsupported by management, HR were all over the investigations like a rash.  The hours of note taking and decision making meant they were then too busy to touch base with any of their other teams.

Is there a happy ending to this tale?  Not really:  Mary spent years resenting Sarah, and then transferred to another team.  She is not regarded as a popular or successful team member, because she has kept up the habit of complaining about the boss and resisting all change.  Sarah never got another promotion in the organisation.  She stayed in post for a few years and then got a job outside.  She started with her new team in the same way, and is now convinced that people are just awkward and you have to push them harder to get what you want.   HR are still doing a lot of paperwork and taking a lot of notes at meetings with unhappy people.  No change there then.

Employment law is where the rubber meets the road – where people problems become legal problems and the law intervenes.  It can’t make Sarah a better manager, or Mary a more realistic employee.  It can’t make an organisation introduce the small interventions that prevent this type of problem  What employment law does do is penalise and sanction those organisations who get to tribunal after they haven’t done their part and a legal issue has arisen.

Of course if there are any ‘equality’ or ‘discrimination’ issues here, this turns into a nightmare scenario.  Sarah picked on me because I am white, transsexual…..  Even in unfair dismissal terms, the process of performance management can be a very long haul if it is started late and from an already-broken situation. 

If there were no employment law and the organisation was free to act in any way, would that really solve this problem?  To what extent is the very existence of employment law the problem?

To my thinking, employment law, if incorrectly applied, can be a complicating factor, but it’s never the problem itself.   Giving long serving employees three warnings and an opportunity to change their behaviour doesn’t seem unreasonable.   In this situation would you really want to walk in and just sack Sarah or Mary (or both)?

There is another complicating factor:  in many organisations, both performance management programmes and warnings are often seen as the death knell for individuals – simply the start of an inevitable process of ‘managing someone out of the business’.  We need to do something to change that – but that’s not an employment law issue, it’s a cultural one.

It’s not employment law that gives us difficult problems.  The Sarah/Mary problem is one we get every day, and it has a relatively easy prevention plan, early on.  But allow it to fester to the point when employment law becomes an issue, and then you are in for a more painful remedy.

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

It’s the economy stupid!

I have looked with surprise at the debate around changing the unfair dismissal qualification period from one year to two.  Is the unfair dismissal qualifying period really what drives small businesses away from employing people?

Fear of employment law (which is used by many to sell employment law insurance) does not seem to tie in with what employment law actually says.  And, as for the change to a 2 year qualifying period, it seems that only about 1% of existing claims would have been affected by this change – not a big difference to employers.

But employees who have struggled into new or first time employment would have a two year wait for a full set of employment rights – a very big difference for them.

So, is the “employment law problem” really driving unemployment?  I had a look through our current and recent files.

• Under one year’s service: only a small number of issues – and these are mostly related to discrimination claims (which are not affected by the changes)
• Individuals with more than two years’ service – 95% of our case load!

So, what is holding small businesses back from recruitment?  Could it be the real issue is … money?  Let’s have a look at how employment affects cashflow.    (Check out the figures late payment by clients hitting an all time high)   http://www.fmwf.com/media-type/news/2011/11/late-payments-to-small-uk-businesses-hit-all-time-high/

Our example client gets some new business worth £120,000 per year revenue – result – champagne all round.  But our client is selling at narrow margins in order to compete in the recession, so their gross profit is just 20% – or £24,000 for the year.

In order to ensure continuity of supply, our client has to pay their own suppliers on time.  And in order to support the new account, they need to take on a part-time worker as there is no slack in the existing workforce.   Brilliant – a person off the dole queue.  Let’s say that costs them £6,000 per year (including NI, to keep the example simple), and that they are not going to have other costs supporting this business – they can use their existing premises and overhead.   So they should make £18,000 trading profit on their extra turnover of £120,000 – a 15% return before fixed overheads which is not great but not bad, except …

Let’s assume their orders from the new client are evenly spaced across the year.  Let’s also assume that the big customer does not pay for 90 days (ask any small business about doing business with a big one!).   Because our client has to pay their supplier on delivery and their worker at the month end,  by the time they get paid their £10k for the month 1 shipment (in month 4), they’ve paid their supplier for four month’s shipments (4 x £8k = £32k) and the costs of 4 months of the new employee (£2k).

So, although their accountant tells them that in the 4 months they’ve made a profit of £6k on this account, in cash terms they are £24k worse off (£34k total paid out to supplier and part-timer, £10k in from customer).

Now, we all know the banks aren’t lending, so how do you handle it?  They can’t not pay their supplier, or they have nothing to sell to their customer.   So, at the very least, you can’t take on more staff since you have no way of paying them.

Of course, if the wonderful new customer would pay on time – in the same month that the goods were sold –  the whole situation is transformed.   Now our small business can pay their supplier, pay their staff and have money in the bank at the end of the month.

Fear of employment law is real, but what is far more real is fear of not being able to pay the staff you take on; fear of not being able to get finance or credit.   Of course, my example is a very simple model, and our imaginary client is not trying to pay rent, rates, utilities and other staff, nor does it have a bad debt problem from other clients.  But the example supports a clear and simple point.

It’s not employment law that is the barrier to businesses taking on staff.  We need to find a way to ensure businesses can finance their trade swiftly and effectively and have enough confidence to take on staff believing they can pay them.

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

 

 

Agency workers – alarms and excursions

With the Agency Worker Regulations (coming into force on 1^st October 2011), 40 pages of Regulations have 50 pages of guidance to explain them! Even so, people can still get confused, and become convinced that they have to do things that are not required.

The long-term carer, supplied by an agency to my mother, to help look after my father has been advised by his manager that the Agency Worker Regulations means that he must swop assignments every 12 weeks.

Of course, the Regulations say nothing of the sort. And the agency’s concern, that there would be some problems if the carer was on long term assignment, is a huge misreading of the Regulations as my mother has no other employees, let alone ‘comparators’, whose terms of employment might influence what the carer’s terms should be

So, after a phone call to the agency, the situation is now sorted out – and my father will not be faced by unnecessary rotation of his carer. But this is not an isolated case, and through my father’s carer I am aware of other agencies who are also misreading the Regulations.

I am also hearing rumours that temps must be taken on as permanent employees after 12 weeks (not so). Many clients think they can simply swop the agency the temp works for and keep the same temp (some kind of ‘ring’). This is also not true as there are anti avoidance provisions.

Before you listen to rumour or read the endless regulations and guidance, you might appreciate our free short guideto the regulations.

　

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

Open and shut

Sooner or later every HR practitioner is faced with the open and shut case. A case where on the fact of it, the actions taken are so blatantly wrong that there seems little point in taking a lot of time to decide what needs to be done. Busy line managers can exert considerable pressure to come to a conclusion and move on.

 The canny HR manager often uses employment law as a way of slowing things down and encouraging everyone to reflect. It is much easier sometimes to say “the lawyers want us to do this” than it is to say “I think your decision may be flawed and misses some key data”. I have had HR practitioners ring me and say “Give me a reason why we can’t make a decision today”.

 When it comes to decisions on discipline and dismissal the employment law requirements for a good process are not that different to the classic good process for making a sound decision. The problem is most of us are not good at making sound decisions – particularly when we are upset.

Managers, being human are often keen to rush to a conclusion and by-pass any real decision making process. This can cost the organisation dearly – not only in legal terms – but in terms of losing individuals who might otherwise have benefited the organisation over the longer term.

 Here are some open and shut cases.

 Before you click the link to find out how it turned out, ask yourself: What would my managers do?

 What would I advise?

1.  Seeing red
   A customer complained that a waitress deliberately tipped a jug of iced-water into his lap and stormed off. The waitress had only been employed for six weeks. When asked about the incident she agreed that is what she did. Her line manager was anxious to ‘get rid’ saying she was obviously volatile.  http://irenicon.wordpress.com/2011/08/15/seeing-red/
2. A word to the wise
   A retailer had half a dozen staff in each of three shops. He was a very hands-on boss and knew all his staff quite well and saw them regularly. He regularly opened and closed each of the shops and often worked alongside his staff during the day.
   One of his staff had worked for him for a couple of years, and had been quite reliable and hard working. He started getting into work late and seemed to have lost all interest in the job or getting in on time. One day, the owner was standing by the door of the shop when the guy turned up 15 minutes late for his shift. “What time do you call this?” said the boss.
   He was met with a mouthful of abuse in front of all the other staff at the shop.  http://irenicon.wordpress.com/2011/08/16/a-word-to-the-wise/
3. To catch a thief
   Our client had two warehouses at opposite ends of the country. They carried similar stock, had similar staffing levels, and were in similar areas (from a demographic point of view), yet one warehouse had a shrinkage (theft) rate way above the others.
   On a fairly regular basis, security would catch someone stealing an item or two. They were interviewed and dismissed. All the captured thieves said “everybody is doing it” … but they would say that, wouldn’t they?  http://irenicon.wordpress.com/2011/08/17/to-catch-a-thief/

It is easy to blame employment law for having to ‘jump through hoops’ and go through tortuous and unnecessary processes. But people decisions are very important decisions for the organisation, and for the individuals concerned. Employment law places great stress on the decision making process (otherwise known as the investigatory and disciplinary process). We shouldn’t need laws to make us go through a rounded decision making process, but following employment law requirements can have that beneficial effect. We can use employment law related decisions as a way of teaching better decision processes – to the benefit of the business in the round. Or, as we often say, “let’s turn our lemons into lemonade”.

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

To catch a thief

Our client had two warehouses at opposite ends of the country.  They carried similar stock, had similar staffing levels, and were in similar areas (from a demographic point of view), yet one warehouse had a shrinkage (theft) rate way above the others.

On a fairly regular basis, security would catch someone stealing an item or two.  They were interviewed and dismissed.   All the captured thieves said “everybody is doing it”   but they would say that, wouldn’t they?

Despite the monotonous turnover of staff dismissed for theft, the thefts would reduce for a few weeks or months, and then start to increase.  It seemed as though even honest new recruits quickly turned to theft.   Large amounts of money were spent on surveillance and security.

Each individual who was caught was a fairly open and shut case – they were often caught red handed, and many confessed quite freely.    Job done?  Thief removed from the premises?

We had a look at how the security team were questioning the individuals they caught.   They were very focused on  “Do you confess….”.   With a bit of training and support from us, we got them to change the way they asked questions, and what they asked about.  We also helped them to look at the wider pattern of data surrounding the thefts and dismissals that had already taken place.

Outcome

It turned out it was the Warehouse  Manager who was co-ordinating the thefts, recruiting new staff and inducting them into the network.   He was arranging for individuals to be caught, both to punish ‘freelance’ thieves who were not within his protected group, but also to show that he was ‘onto the problem’.

He had a team of subordinates who worked with him, and they were trucking goods out of the warehouse on articulated lorries!

In the year after the Manager’s dismissal, the client saved a million pounds on stock losses alone.

See our previous blog

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

A word to the wise

Sometimes the obvious decision isn’t the right decision for the organisation.  It is easy to get focussed on narrow issues, or rush towards a conclusion when a decision seems to be staring you in the face.

We are all busy and no-one wants to make a big thing of a little thing.   We all need an intelligent friend to nudge us and say “This doesn’t make sense – check it out” or “Are you so sure about that?”

A retailer had half a dozen staff in each of three shops.  He was a very hands-on boss and knew all his staff quite well and saw them regularly.  He regularly opened and closed each of the shops and often worked alongside his staff during the day.

One of his staff had worked for him for a couple of years, and had been quite reliable and hard working.  He started getting into work late and seemed to have lost all interest in the job or getting in on time.

One day, the owner was standing by the door of the shop when the guy turned up 15 minutes late for his shift.   “What time do you call this?” said the boss.  He was met with a mouthful of abuse in front of all the other staff at the shop.

It is very hard for a boss to tolerate being publicly abused in front of their team.  The staff handbook specifically says that swearing and aggressive language will be treated as gross misconduct.

Once we got the boss calmed down, we asked him to have a very quiet and private word with the chap to find out what was really going on.  (There was no one else in a managerial role in the business).   With a bit of help from us he found out that:

• The chap’s wife had left him
• He had three kids to get to different schools by bus (he had no car)
• He had not wanted to make it public since he hoped she would return
• He was really struggling to cope

Outcome

This particular boss did something many would find difficult.  He decided to give this man a final warning and allow him to continue to work in the business, despite the fact he feared he would lose face in front of his team.  He also altered his working hours so that he started after he had finished the school run, had a shorter lunch break and picked up the kids from school.

Four years later the same man took his boss on one side and said “You were so good to me that time, I really think you ought to know…..some of your staff are organising a lorry to back into the loading bay tonight and steal a major amount of stock…………”  As a result of this, they were stopped (and fired in due course).   The plan was to steal an amount of stock that would have bankrupted the business.

See our previous blog

To be continued ……

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

Seeing Red

Sometimes the obvious decision isn’t the right decision for the organisation.  It is easy to get focussed on narrow issues, or rush towards a conclusion when a decision seems to be staring you in the face. 

We are all busy and no-one wants to make a big thing of a little decision.   We all need an intelligent friend to nudge us and say “This doesn’t make sense – check it out”  or “Are you so sure about that?”

A customer complained that a waitress deliberately tipped a jug of iced-water into his lap and stormed off.   The waitress had only been employed  for six weeks.  When asked about the incident she agreed that is what she did.  Her line manager was anxious to ‘get rid’ saying she was obviously volatile.

Seems like an open and shut case of gross misconduct – why take any time over this?  What would you do?

We asked our client to go back and have a quiet word with the waitress to find out what made her do what she did.  We discovered:

• The customer was part of a heavy drinking group who all turned up at lunch time
• They were making very crude sexual remarks about the girls red hair and its extent
• She repeatedly asked them to stop, and they just laughed
• The manager was listed as on duty, but was in fact absent from the site making a long telephone call to his girlfriend
• This waitress was 17 years old, and left on her own in a busy restaurant  with no support

Now, we all know that two wrongs don’t make a right.  It is plain that waitresses shouldn’t throw iced water over customers. 

But, the staff handbook said:

• Customer service  – “If you have a difficult customer, do not try to deal with them yourself, but speak to your manager who will take over from there”.
• Sexual harassment – “We do not expect you to tolerate inappropriate comments from customers.  Please let your manager know immediately if you experience any problems”.

Would any of this make a difference to your initial decision?

Outcome

The girl was given a tactfully worded warning not to assault customers, and told firmly to walk off the floor if such an incident recurred (which was never triggered because she knew what to do next time).  She went on to be a very successful Area Manager.

The manager was given a warning  for his failure to remain on site and his failure to properly support his trainee.  He was also retrained on supervision and equality.  

All managers were reminded of the importance of remaining on site during service, and encouraged to properly support their trainees.  

The incident was used as a case study in the organisation (with the girl’s consent) to show how sexual harassment by customers needs proper support from managers in the workplace.

And the customer was asked not to return to the premises.

To be continued ……

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

Workplace fall out from the riots?

A  lot of businesses will wake up today with problems stemming from the riots.  With clearing up and sorting things out, the sad reality is that many small businesses are tipped over the edge by looting and damage and will not be reopening when their insurance money eventually comes in.

For those whose who are clearing up and carrying on today, here is our short guide to the employment law FAQ we advised on last time there were a lot of riots.

Other duties – can I ask staff to do something unusual?

Employer’s normally need to contract for flexibility but in times of unexpected disaster you can  ask your staff to do duties they normally wouldn’t undertake.  It is not unreasonable to ask managers to wield a broom in these circumstances.  Most staff will be happy to muck in and help out. 

Be careful that you do not ask them to do anything dangerous, since health and safety has not been suspended, even if law and order has.  If a member of staff refuses their regular  or temporary duties on health and safety grounds you should take advice before continuing to insist.

If you are unlucky enough to have an uncooperative member of staff we would be happy to advise (new callers get 20 minutes free advice which should cover this).  

Employers and employees need to work together to find a way through this,  but it is important to know where the legal land  lies

Workplace shut?

If the workplace is entirely ruined or shut – beyond the staff helping to clear up then you should be aware that staff can be sent home but they may be entitled to be paid.  You need to look at your contract to see if they are entitled to be paid their normal rate of pay.  Sending staff home unpaid without consent can trigger constructive dismissals and you need to have some idea of what you are doing before you set off.

Your staff can agree not to be paid, or agree to take any unused holiday, but if they are not being paid, despite their agreement they will still be entitled to guarantee pay.  This is a statutory right.

In any event, anyone who can’t work because the workplace is closed has a default right to guarantee pay for the first five working days in any three month period.  The current rate is 50% of a day’s pay subject to a maximum daily payment of £22.20. 

Staff unable to attend

Some staff will have had their homes, or journey to work affected and eve if your workplace is open for business as usual, they may not be able to attend work on their normal basis.   

If your business has been otherwise unaffected you may be in a position to ask them to make up the missing hours at a later date.  If so, make sure you keep a proper record of which hours are missed, since memory fades and can trigger disputes.

In reality hourly paid workers may not be entitled to be paid for not being at work except under holiday and other paid absence schemes, so you should be sure you know what you contracted do, and what you are thinking of doing beyond the contract, so that you don’t get in a muddle and think you are obliged to do things you can’t afford.

Children can’t get to school

Some parents may find their children cannot get to summer school  or child minders booked for the summer holidays (even though they could get to work).  Parents are entitled to emergency unpaid dependants leave to sort out childcare and take care of children.   Some employers have contracted to pay specific number of days.  If you have not gone beyond the statutory entitlement it is to unpaid leave.

Parents often ask for annual leave at short notice to ensure they are still paid.  Many parents are already on annual leave now that the schools have broken up.

Where the job is suitable, and the children are old enough you might want to consider temporary home working, if the facilities for homeworking are there or quickly and easily assembled.   You need to take a few moments to be quite clear whether this is working at home for the normal hours (location shifting) or whether this also includes changing the hours (time shifting) so some work is done when the kids are in bed,e tc  and what duties you want done.  Although this is a useful short term measure, one of the problems with home working is figuring out how to measure what is being done.  Make short term arrangements if needed so you can get back to this once the initial crisis is over.

Customers chased away?

Some businesses will be open, staff available, but the customers may not be quick to return to areas that have been severely damaged.  You should keep a careful eye on your turnover and expenditure since this can be the last straw for some businesses.

Making payroll

If things are so bad you think you may not be able to make payroll, contact your bank and your accountant straight away.  We all hope the insurance companies will operate some kind of fast track system, but fast in insurance is not the same as fast in business and you need to take long hard look at what payroll is, and how much is in the bank (or not) and how much money is really going to be coming in over the next few weeks, particularly if your premises are in a badly affected area.  

Missing pay dates without agreement can trigger a constructive dismissal, never mind financial chaos for the staff, and difficult as it is, it is best to be honest with people and set out how things are, rather than make promises you can’t keep.

Have a cup of coffee with us

If you have questions we haven’t dealt with, please  email us on advice@irenicon.co.uk.  We will be happy to help.   We will be organising a few free telephone conferences (koffeeklatches as we call them) to support employers in Croydon.  Some will be during normal working hours and some outside them.    If you think you would like to participate email us on info@irenicon.co.uk letting us know what you want to discuss and whether you would prefer inside or outside normal office hours.   We can then make sure you know when they are.

Our heart goes out to all our business clients, and all the business community who are affected by the rioting.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
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