As on the dance floor, so in life ……

Argentine tango is a dance of close embrace and improvisation.  The two dancers are ‘leader’ and ‘follower’.  The leader in a male/female couple is usually the man.  But we live in modern times, and tango can be danced by m/f, m/m or f/f couples.  It’s true that it takes two to tango, but you don’t have to specify which two!  And either partner may take the lead – it just needs to be agreed in advance!

On the dance floor, the leader should respond to the music, and his partner, and the circulation of the other dancers, and indicate (principally by change of weight and orientation of shoulders) the steps or figures that he is inviting the follower to take.  This is the “lead”.

 So …… the ‘lead’ is an invitation, not an order!  The follower has the choice to ‘accept’ the lead and perform the figure indicated, or may perform some other step or figure than the leader expected.  Sometimes the follower does something unexpected that actually works very well, and the good leader leaves enough room for the follower to surprise the leader with greatness.

When things go adrift, poor leaders blame the follower for not doing the ‘right’ (i.e. what they thought they were signalling) steps. 

The wise leader knows that it is never (well, only exceptionally rarely) the follower’s fault that the dance goes wrong.  If the lead was not clear, just exactly what is it that makes this the follower’s fault?  If the follower is inexperienced, it is the leader’s responsibility to dance simple figures that are within the competence of the follower.  Yes, push the boundaries a little – so that you take the follower just beyond the point of their comfort zone into a place of exhilaration and excitement – but so that in reality the follower has little choice but to exceed their own expectations in the dance whilst all the time feeling cherished and held by the leader. 

When this works, the dance is truly wonderful.  And isn’t ‘leading’ in business much the same?

“As on the dance floor, so in life!”

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

No staff, no employment law problems? Think again!

Do you think employment law is nothing to do with you. You don’t have any staff?

Think again:

• You can be liable for tax and national insurance for self employed workers you use
• You don’t own the copyright in designs produced by sub contractors (unless you have contracted to do so)
• You can be liable for injury to contractors as well as staff
• ………… and there is more

Entrepreneurs tend to start with very informal business structures and then things grow over time. It is easy to imagine that having good relationships with the people around you means you won’t run into trouble.

Sometimes that works, but other times it is a disaster – when the relationship breaks down there is nothing to protect you from harm.

We have come across businesses who did not own their own website or designs in their own work. We have worked with others who spend months tolerating behaviours they could have put a stop to right away.

We are not trying to frighten you, but it is a good idea to get real at an early stage. If you want to think about this in terms of your own business, try this FREE download www.koffeeklatch.co.uk.

When you have listened, follow the instructions at the end of the recording and you can ask questions about how this works in your business.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. You can follow Annabel on twitter – http://twitter.com/AnnabelKaye

In the midnight hour

Legal time does not work the same as any other time.  A legal calendar for obvious reasons has to be more precise than we normally are.   Here are some things that trip people up all the time and create some interesting results.

1.       Notice

If I give you notice today, it will start to run at midnight – in other words, whatever time today I give you notice, today won’t count (it is in effect day zero when calculating length of notice) .  Technically anyone given a week’s notice on Monday is therefore employment until midnight the following Monday (and due to be paid for that day).  Similarly a month’s notice given on 1st of a month expires at the end of the 1st not the end of the last day of the month.

Why do we care?  Well people who want all their money care because they can claim an extra day.  Employers who get this wrong care because they have to pay an extra day’s pay if they are working on the wrong basis.    Anyone giving statutory notice of their intention to take leave or require an employee to take leave on specific dates will need to allow for this………the list goes on.

2.       When is a day not a day?

A day starts immediately after midnight but if you are calculating statutory sick pay, the first three days are normally waiting days and do not attract statutory sick pay.  Thus anyone who is off sick from Monday to Friday is entitled to two day’s statutory sick pay in their first week of absence.

3.       When does a week start?

What day of the week is the first day of the week?  For many this is a religious question and depends on when a particular religion’s Sabbath is. However, in the UK a week (unless otherwise specified) starts on a Sunday and ends on a Saturday. 

4.       How many hours can someone work in a week?

Lots of people believe the 48 hour limit under working time means people can’t work more than 48 hours in a week (unless opted out).   In reality it is an average, so as long as the average hours over 17 weeks (if no other period is set out in an appropriate agreement) do not exceed 48 hours, employees can work more than 48 hours in any given week.

5.       How long is a year?

52 weeks?  12 months?  Not always.   For the purpose of calculating qualifying service for unfair dismissal a year can include an extra week for statutory notice (after four week’s service statutory notice entitlement is one week).  Unless an individual is summarily dismissed for gross misconduct, they are entitled to add on that extra week (in order to claim unfair dismissal) even if they were paid money in lieu of notice.  So, sometimes a year is 51 weeks long.

In the mad world of employment law, few things are what you might expect and it may already be far later than you think.

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

Can an employer make an employee take a day as holiday?

Many employers have been asking staff to take a day’s holiday if they could not come in because of the snow. There have been a lot of misleading headlines about holiday and absence. Here are some useful facts.

1. An employer cannot make someone go to work
2. There is no general legal entitlement to be paid for days not worked and many contracts/staff handbooks specifically say employees won’t be paid for absence except under the sickness, holiday or parental leave scheme
3. Employers who keep the workplace open may ask absent employees to chose to take holiday IF they want to be paid (as opposed to unpaid leave is there is no underlying entitlement to be paid in any event)
4. There is a difference between absence and pay – not all absences trigger a right to be paid
5. Under the Working Time Regulations, employers may specify in advance that annual leave must be taken on days they chose. To do this they must specify date(s) in advance and give relevant notice – twice as many days in advance (of the first day of leave) as the number of days to be taken. So even one day’s leave requires two (full) days notice. This device does not usually cover shut downs needed at short notice
6. Some employers have their own rules for specifying leave dates that may over ride these rules
7. Parents taking time off to look after their children have no general right to be paid
8. Some employers are offering additional hours to catch up on the backlog and to help employees catch up on pay
9. Many employers are paying people who attended work on the basis of a full day even if they arrived late or went early (though not all are obliged to do so)
10. The 48 hour working maximum under working time regulations is an average, not an absolute ceiling, so workers can work longer hours to get things back to normal

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

The history of Christmas and work

Until 1871 there were no bank or public holidays in the UK.  There was no statutory entitlement to annual leave.

In 1871 an act of parliament created four bank and public holidays:  Easter Monday, August bank holiday, Boxing Day and Whit Monday.  Scotland had different holidays and had New Years Day and Christmas day from this point onwards.

Additional holidays were added one hundred years later during the course of the 1970s culminating in the eight bank and public holidays in the calendar today for England and Wales.   

There is no general legal right to take these days as holiday – though taking them can count towards statutory annual leave, introducing under Working Time Regulations in the 1980s.

Individuals may be contracted to work on bank and public holidays,  Most employers offer premium or overtime rates for these days, though there is no general legal requirement to do so.

Employers have the right under working time regulations to ‘designate’ leave.  Many arrange an annual shut down for the gap between Christmas and New Year and require employees to save some of their annual leave for this period.

Merry Christmas – whether you are working or not.

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

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/