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

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

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

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

 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

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

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

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

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
You can follow Annabel on Twitter

• as part of a flexible working request;
• as a disability adjustment;
• in order to cope during the Olympics; or
• a whole variety of other reasons.

Employment law, health and safety, and data protection controls are just as necessary for the homeworker as they are for the office worker, and there are other issues to take into account as well.

There is no legal definition of a homeworker. Someone who answers a work-related telephone call at home may be working at home for a few minutes. But a “homeworker” is usually regarded as someone who has a regular time when all or part of their duties are conducted from home.

If your employees work from home they are covered by your normal policies and procedures, as set out in their contract of employment. But you have to make additional arrangements to cover the homeworker at home.

You need to consider:

• environment suitability
• health and safety requirements
  - including eye tests, workstation assessment
• equipment provision
• insurance cover
  - including employer’s liability
• rental or mortgage agreement
  - check to ensure it allows homeworking
• ongoing and non-recurring costs
• tax liability

Homeworking incurs specific liabilities for the organisation, and responsibilities for the individual. So it is best to draw up a separate agreement with such staff, to ensure that important points about this type of working relationship have been mutually discussed and understood.

We recommend using a formal process, with a paper trail, so that the ‘homeworker’ and their employer review these points and record an agreement about how the arrangements will work. Clarity really helps here, before you get too far down the road. It’s much cheaper to sort out possible problems before they arise.

If you already have people on ‘homework’ arrangements that are not well documented, then we recommend that you get it sorted out right away. We have created a ‘Homeworker Agreement Application’ and a ‘Homeworking Employee Agreement’, to make this process simple and smooth. Click here to get your copy.

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 job involved four hours a day ‘administration’, when no commission could be earned. There was no guaranteed minimum for pay, and most of the employees he spoke to worked 13 hour days six days a week. He turned the job down, but lots of people were working there.

Young workers who do not have employment law specialists as their parents don’t always know what their legal entitlements are. But when it comes to commission work, here is how it goes.

1) Whatever the rate of commission, pay must not fall below National Minimum wage for the hours worked (eg there is always a ‘floor’)

2) If you are over 21 the minimum hourly rate is £5.93. It will go up in October 2011. For other rates: http://www.direct.gov.uk/en/Employment/Employees/TheNationalMinimumWage/DG_10027201

3) Wages are calculated within a reference period – normally the pay interval, which would usually be weekly or monthly.

4) All the hours you are at work (except when on breaks away from work and the workplace) are part of the calculation – if you are in a telephone bank and ‘on call’, it is not just the time you spend on the phone that counts, but all the time you are sitting there waiting to answer a phone.

5) If you work in an office to do your commission based work, you are on a ‘time base’ – see http://www.direct.gov.uk/en/Employment/Employees/TheNationalMinimumWage/DG_10037277 for how to calculate your hourly rates on line.

6) You take the number of hours worked (so it is important to keep a proper record) and the commission earned, and divide the hours into the commission to get the hourly rate. For example for a weekly paid worker:

Commission £80/Hours worked: 40 hours this week = Hourly rate £2 per hour

7) The fact you agreed to a lower rate, or signed a contract, or didn’t get one is not relevant to your entitlement to minimum wage – if you are an employee or a worker (eg not running your own business but working for them) then this entitlement exists.

8) If you have been underpaid National Minimum Wage, you can get back pay for up to three years to bring you up to the right rate. You can get free help from the Workers Rights helpline 0800 917 2368, who specialise in this area.

9) You can make a complaint online to HMRC – the form is anonymous and your boss does not have to know it was you who complained http://www.hmrc.gov.uk/nmw/complaint.htm

So if you are offered a commission-only job ask your employer:

a) What is the period of calculation for commissions (eg weekly, monthly, quarterly, annually)

b) What is the pay period (weekly, monthly)

c) What happens if for some reason my commission falls below minimum wage

You need to keep proper records from the start of:

a) How many hours you worked
b) How much you were paid
c) Any advances against commission (they do not count towards minimum wage)
d) Keep copies of the advertisement, job offer letter, contract – don’t lose them

And you need to check your payslip and commission statements to make sure your gross pay (before tax and national insurance) tallies with your records. We spend a lot of time getting commission for workers who have simply not been paid it.

While some employers do make mistakes, and there is the odd one who really doesn’t understand minimum wage, in the main employers who do not honour minimum wage or pay the proper amount of commission are not for the long term. You should be job hunting for something better.

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  burka ban (http://www.telegraph.co.uk/news/worldnews/europe/france/8442622/French-burka-ban-police-arrest-two-veiled-women.html) is seen by some as frankly ‘Unbritish’ , unless there is a real need for a woman’s face to be seen.

But a crucifix ban (http://www.timesonline.co.uk/tol/comment/faith/article7089691.ece) can be lawful if this is related to Health and Safety, and the Court of Appeal decided that British Airways were entitled to require a customer-facing worker to conceal a crucifix as part of a general ban on religious displays.

German bosses have persuaded the EU that they have the right to require women to wear bras to work (http://www.dailymail.co.uk/news/article-1346520/Court-rules-German-bosses-order-women-wear-bras-work.html).  We have yet to see men demanding equal treatment in that regard.  A ‘bring your under wiring to work’ day is not the most likely equal opportunity event in a workplace near you.

To what extent is it an employer’s business what employees wear to work? 

Are dress codes a legitimate imposition of image and standards, or is this a load of white middle-aged people trying to impose their standards of dress on everyone else?   Do your customers really mind what your staff wear?  If they do, do customers’ ideas of appropriate clothing match yours?

Our professional practice had a credit controller decades ago who looked like a zombie/goth:  black hair, black nails, black lips, she certainly didn’t match the corporate image.    She had a mostly desk-based job, and we decided to put our conservative instincts aside and give her the job, as she plainly was the best candidate for the role.

Part of her job was credit control, and from time to time she went to clients’ offices to sit in reception and wait for a cheque.  She always got one quickly – people couldn’t get her out of their plush front office fast enough.

She looked different.  She was different.  But she was completely effective in her role.

The customer is not always right

Years ago, managers told me “customers don’t like black people” or “customers don’t like obviously gay people”.  The law steamed right past that, and no-one would seriously rely on such reasoning today.  Some Muslim women get stick from stricter Muslim customers if they don’t cover up enough.     Should we be requiring them to wear the niqab because that is what some customers want (if they do), or should we be supporting their right to wear what they want?   The customer is not always right.

Is it right to assume that customers are automatically put off by people who look different to them?    When I first started work it was ‘business suits’ only, and women were not allowed to wear trousers to work.    When I was at school, the uniform rules extended to underwear, and we had inspections!  We have come a long way.

Does it offend me if the coffee shop person has dreadlocks and piercings?  Not nearly as much as surly service.  I don’t care what they wear, but I do care how I am treated.   Whilst it may be that there is a segment of the population that finds it hard to deal with people who are not in business suits, quite often it is the senior directors who object to how someone dresses, not the customers, and there is no customer profiling or research to support their point of view.

The real issue for many customers is not what people wear, but whether they can understand what your staff are saying!  Whether native English speakers or not, it is far more important to be able to have a conversation with your staff than admire their outfit.

Years ago I had a client who took great pride in how informal people were in their organisation and how everybody could wear what they wanted.   Even torn jeans were acceptable.   Every time I turned up at their offices (about once a month) I was told, “no need to wear suits for us”.  Eventually I got the hint, and went out and bought a pair of torn jeans – just for them.  Next time I visited they said “It is wonderful you feel relaxed enough with us to wear what you want”!

Who’s in charge here?

A lot of my older clients say – “But it’s my company, what do you mean I can’t control who wears what?”    The boss’s right to lay down standards of dress is constrained by equality law, and s/he who pays the piper cannot call any tune they feel like.

If an outfit (or accessory) is genuinely dangerous (or a hygiene problem in the food or medical sector), then it may be legitimate to ask staff not to wear it.  However, there might be other ways around the difficulty – wearing medical tape over a stud, for example.   Surely banning should be the last option once alternatives have been explored, not the first?

Providing a staff uniform can be useful.  I have worked with IT companies who give their technicians sweat shirts so they can easily be identified on clients’ sites (and asked for help).  They often specify that everyone wear trousers since women crawling around under desks in micro minis tend to attract the wrong kind of attention.    So far I have not heard of a woman IT worker (or man) objecting to that rule.

Security workers, medical workers, police and the armed forces all wear uniforms in environments where it is really important to be able quickly and easily to identify who is who and what their  job function is.  In a world of email and telephone call centres, these physical signals are invisible and arguably irrelevant.

But although you may well have a ‘legitimate aim’ in setting standards, you also have to be able to justify how you apply it.  The Catholic school that banned boys from wearing their hair in ‘cornrows’ persuaded the High Court that their policy of requiring conventional standards of appearance was legitimate, but their inflexible application of their policy produced a detriment for particular racial groups and could not be justified given the possible alternative approaches that could have been taken. (http://www.bbc.co.uk/news/uk-england-london-13803106)

Sexual harassment/religious issues

What about a workplace without rules?  If everyone wears what they want, then other problems can arise.  I was talking to a University Lecturer recently who remarked that his female students were attending his workshops during hot weather in micro shorts and a top smaller than a bra.   “I often work closely with my students at the computer desk, moving the mouse to show them where to click.  When they come to class half naked, I worry that I will be accused of sexual harassment if I get too close to them, or look down at the wrong moment.  I feel sexually harassed by what these young women wear”.

Should we have a rule “If you don’t want it looked at or talked about, put it away”?  The Slut Walkers are right to the extent that women should be free to wear what they want without fear of assault, but is it reasonable to go to work half clothed and expect no-one to notice or say anything?  Would it be OK for a man to go to the office in shorts and sandals and nothing else?

The modern workplace includes everything from Sikhs who need turbans and bangles and knives, to women who wear hardly anything, or women in the niqab or burka.   We have teenage Goths, eco warriors and men and women in suits.

Are we going to try to stem the tide of diversity and require everyone to look the same?   Is my dress code going to be driven by religious sensibilities of religions I am not a member of?  Are we going to go for a common look but allow wide variation?   Or are we going to let everyone do their thing?

I have always wanted to dye my hair pink.   Given my line of work, and the fact I do spend a lot of time with clients (and in tribunal), I felt it was not appropriate and I have not yet done it.  Nobody told me not to, nobody required me not to.  It was my decision.  When I get to the age of 70 (which by my calculation is my most likely retirement age given how things are going) I will celebrate by dyeing my hair pink … or do you think I should do it now?

Meanwhile, have a look at your own dress code/policy at work.  Is all that stuff really necessary?  If I put you on the witness stand today, could you make a real case for how your business really needs all this?  If I did put you on the witness stand with my hair dyed pink, would it make me more or less of a dangerous adversary or effective friend?

Talk to us about your dress and uniform policy.

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

You don’t have to spend more than 30 years in employee relations and employment law to work out that there is more than one idea about what is ’fair’.   When we call upon the government to produce legislation that is ‘fair’, or even ‘fairer’, we are really being a little disingenuous unless we define what we mean.

Historic  fairness?

To a woman trying to get on the board of a plc who suspects her gender is an issue, fairness means getting a real shot at an open door.  Business women are divided over the issue of quotas and there is no agreement about whether quotas are fair or not.  Is fairness about remedying historic discrimination, or is it about what is happening now?

Simplicity and clarity?

To the small business owner, fairness means being able to run their business without being burdened by c complicated rules.  Is fairness always simple, or can we be simple and unfair?

Consistency?

We all get irritated by reports in the press that show one criminal getting a fine where another for the same offence gets a prison sentence.  To us, consistency is part of fairness.  

Some people find it offensive that soldiers injured in the line of duty get lower compensation than a woman who is not promoted because of her gender.  We all have some underlying idea of a scale or tariff, but we don’t necessarily agree about which things should be compensated for in comparison to what.

Relevant circumstances?

When we are on the receiving end of any kind of penalty, we do not generally demand that a strict tariff is blindly applied.  On the contrary, our idea of justice and fairness then includes the idea that our circumstances, even our intentions, should be taken into account. 

• The drunk driver begs not to go to jail for killing a child – “I didn’t mean it, I am sorry”
•  The negligent manager does not want to be blamed for injuries at work –  “We didn’t have enough resources, I was working long hours”. 
• We can feel that “I am not the only one to blame” is something that means we should not be blamed at all (as opposed to everyone involved taking their share).

We need to decide what the ‘fairness mix’ is before we start demanding more of it.   Do you want to go for:

1)      Standardisation/set tariffs/penalties – where everything is predictable; or

2)      Appropriate decisions/penalties – which means there is an element of unpredictability and inconsistency

This is a dynamic tension in our entire legal system, not just employment law, between the two ideas of fairness. 

At work, should people who are often late be treated the same, regardless of reason?  Should there be special consideration for the disabled, for those who live on a dodgy bus route, or should it always be “three strikes and you’re out”?

If you believe in fixed penalties regardless of circumstances, you have a system that is consistent but not necessarily fair.

If you believe in a system that takes into account circumstances (e.g. small employer, dire business need, single parent, disability) you will have a system that may be fair but will not be obviously consistent or predictable (since you can’t know how much will be taken into account until you get a decision).

Justice is technically the strict application of the law to all regardless of circumstance – but equity is the appropriate application of the law to the case in point.  Which would you rather be on the receiving end of?

We try in the UK to have it both ways.  It is the essence of our society … this compromise, this balance, this wobble … and it is what the media complain about all the time.  Why did that person get six months and that person one month?   Why did that employer win a tribunal and that one lose?  We seek consistency and predictability but those two things may be the natural enemies of fairness.

What kind of world do we want to live in?  If we can work out that, we can work out what kind of legal system we need to support it.   But we have to be realistic.  Any system of legal rules and processes has some inherent problems, because:

• people write the laws (with varying degrees of drafting skills!),
• people try to explain the laws (with very mixed success), 
• people try to comply with the law (and others pay no attention whatsoever) and
• people try to interpret the law fairly when cases come to tribunal or court.

Sometimes we act like children, complaining when Daddy makes a decision we don’t like.  But we are adults in a society that needs to make adult assessments about what it values, what it penalises, what it sanctions, and how it judges those issues.   The boss who today wants a streamlined tribunal system and no uncertainty may be the drunk driver tomorrow wanting their life and record and all mitigating circumstances taken into account.

The price of “society” is accepting that there is more than one point of view.  It is not such a simple job to make things ‘fairer’ but we could start by acknowledging that there are competing standpoints that have to be reconciled.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation , click here for the third blog for our discussion on how government guidance notes affect us and click here for our fourth blog  where we look at the opportunity to simplify legislation

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

Over the last 30 odd years I have seen a number of ‘simplifications’, and not one of them has simplified anything for anyone.   Take a few separate short statutes, and once ‘simplified’ they seem to turn into 100 pages of legislation and 200 pages of ‘guidance’.  Why is this?

It is not because anyone is trying to make it any harder than it is.   It may be because:

a)      European laws are ‘purposive’ – which means they are drafted with an intention to have a particular effect, and national parliaments have to work out how to achieve this – which is more complicated in the UK because …

b)      UK laws are written so that the words we use are what the law is

c)       When the UK courts and tribunals interpret UK implementation of EU laws, this can throw up problems with the UK approach (“what do the words say”) and the EU approach (“what is the legislation trying to achieve”).

There are specialists (Parliamentary draftsmen) who draft the words of laws in the UK.  It is a particular skill, honed in a tradition that stretches back centuries.  These people, when left to do their job, use words as a precise tool.  When it comes to implementing EU legislation they are being asked to frame the detailed wording of laws that are broad brush in their intent. 

When it comes to employment law the EU tends to work on ‘framework’ legislation, leaving it for national parliaments to set out legislation that brings the EU purpose into effect.  In many other EU countries, the national legislation is essentially framework too, and much of the detail is filled in with legally binding management and union agreements at regional, local and sector level.

In the UK we don’t usually have legally binding agreements, so the poor Parliamentary draftsmen end up trying to draft a ‘one size fits all’ set of legislation.  This means that all the variations by sector, size of company, special circumstance have to go into the legislation.  In other legal systems it would go into the appropriate agreements and anyone not covered by it wouldn’t have to read it!

In the UK we have an instinctive feeling that everyone should be treated the same under the law.  So the idea of laws that apply only to employers and employees in a particular sector is very alien to us.  Our ‘gut feel’ that there should be some kind of level playing field results in complications, exceptions, and heartache.

We like the idea of consistency and often feel that is some measure of ‘fairness’ but we don’t like complexity.  Equally we don’t like laws that are not appropriate.

In an employment market that includes global players, national organisations, sector dominant employers, small businesses, and micropreneurs about to take on their first part time employee, it is almost impossible to have one simple, clear approach that suits everyone unless we go back to the EU ‘purposive’ approach.

We could have employment laws that say – “Do what is appropriate and fair give the size of your organisation and its needs, balanced with the effect your decisions will have on the individuals and the degree to which they have brought this on themselves”.

But that, of course, would not satisfy those who want to know in advance that they have done the ‘right thing’.  The law could be simply expressed in a ‘broad brush’ way, but although that would simplify the wording of the law, it would not simplify predicting how the law would apply to a particular situation.

The “red tape” exercise is not going to be able to resolve the core conflict between the two systems applying the UK – that express law in a ‘framework’ way, and in a ‘what do the words say’ way.  So the discussion seems to be taking place around the edges.  But it is not trying to tackle some central issues about whether we could find a consensus of what we meant by ‘fair’ or ‘appropriate’ or ‘relevant’ when it comes to dealing with people in the world of work.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, click here for our discussion on how far we can repeal current legislation and click here for the third blog for our discussion on how government guidance notes affect us.

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

Stop!

The Bribery Act does NOT – despite what people are saying – set up anything complicated or difficult that you have to do … provided you have already been running your operation with a modicum of sense, and a reasonable employment contract.  Normal business hospitality is not going to be made illegal!  But ‘facilitation payments’, or completely disproportionate hospitality, will be a problem under the new law in exactly the same way that they were under the old law.

If you have taken no steps at all to protect your operation from corrupt practices, then the nudge that the new Act may give you to sort this out will not go amiss.  But if you have nothing in place, don’t just ‘fix’ the bribery issue — look at how corruption of any form might affect your activities, and how to guard against it.  As always, let your business needs drive what you do … don’t let legal changes distort your business priorities.

The Ministry of Justice has issued straightforward guidance about how the new Act will operate. [But do remember, “guidance” is not the law - so take it with a bit of a pinch of salt – check out our earlier blog.]

In a nutshell:

-       your organisation can be liable for failing to prevent a person from bribing on your behalf

-       solution: consider whether there is actually a risk that this will happen, and where these risks may arise

-       if a bribe is made on your behalf, you will have a defence to a prosecution if you can show you had adequate procedures in place to prevent bribery

-       solution: once you have identified actual risk areas in your operation, consider how you can best put procedures in place to prevent bribery occurring.

-       if you do need to put procedures in place, they should be proportionate to the risk

-       solution: for most businesses, you will not need extensive written policies or special processes.

For many organisations, all that will be needed is a short addition to the employment contract or employee handbook.  For any organisation that already has an effective “ethics” policy in place, it is quite likely that nothing additional will be needed at all.

But the trick is to do the job in the right order.

Start with the risk assessment – which, as always, is best committed to paper so that you can prove later on that you did it.

Then, if (and only if) the risk assessment shows you that it’s necessary, put in place relevant and appropriate new prevention procedures and documentation.

Many companies will need to add precisely nothing to what they already have in place at the moment!

Join us to talk about what you need to do to make your organisation’s gifts and hospitality process compliant (for most people it won’t be a lot).  And take the opportunity to review whether you are getting value for money out of it all anyway.

Christopher Head is a barrister and director of employment law specialists Irenicon Ltd.

Irenicon Limited, Airport House, Purley Way, Croydon, CR0 OXZ
Tel : 08452 303050 Fax  :  08452 303060
Email  :  info@irenicon.co.uk
Website  : www.irenicon.co.uk

Tied up or tied down?

Simplifying the complex – red tape and employment law

This is the third in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at the dangers of reliance upon simplified guidance published by the Government on new legislation.

People get in a muddle about the effect of explanations and guidance on employment law.   New clients simply do not understand how it is that they can follow Government guidance (as far as they can tell) and yet they can still lose in a tribunal.

Our legal system works on the basis that Parliament makes new law (statutes/Acts of Parliament, and regulations), and the courts and tribunals interpret and apply that law to particular situations.  Government guidance notes do not have a status in this.  It is true that some Codes of Practice are given effect by statute, and are to be taken into account by a court or tribunal hearing a case.  The ACAS Code on discipline and grievance is an example of this.  But in general, the court/tribunal has to apply the law as written, and will not apply guidance notes on Government websites.  This is confusing to the uninitiated, but has the useful effect of preventing our laws from being rewritten by civil servants without the scrutiny of Parliament.

There have been several spectacular incidents of Government guidance being pulped (at a cost of millions) where the explanations have been simply wrong.  Having advised clients during those times, they have been understandably mystified by how, even though they followed official guidance, they turned out to be in the wrong.   Equally, it has seemed more than unfair to them that they are required to comply with laws that no-one in the Government can adequately or accurately explain!

It is not unknown for Government departments themselves to be in breach of UK employment law (not just the guidance), and it is clear that there is a lot of unnecessary pain and confusion about the status, clarity, relevance and accuracy of guidance notes.

Only appeal decisions bind lower courts, so there is an inevitable gap between when new laws are passed and when they are interpreted.  And we do not have any system of judges deciding theoretical cases to clarify ambiguous law – there must be a real case brought about an actual situation.  So, given the time that cases take to work their way through the system, it can take anything from two years to more than a decade for a particular statutory provision to get the attention of an appeal court and for binding precedent to be established to interpret it.

We often have to tell our clients “Nobody knows the answer to this question, but our best guess, given what has gone before is …..”    I have never seen a set of ‘guidance’ that is honest enough to say this.  What would be the reaction if this were published?   Employers like certainty and predictability (at least until they want flexibility and choice!).    It’s not easy to live in a world where non-compliance costs time and money, but no-one can say for sure exactly what “compliance” requires.  This is one reason why we see “best practice inflation” – which is the inaccurate overstatement of what the law requires … ‘just to be on the safe side’.  But it’s not ‘safe’ to load business with excess cost or unnecessary hurdles.

The reality is that running a business involves risk.  Judging where you are and where you should be on employment law is just one of many risks, from deciding who to give credit to, what to invest in and many more.   There is no real certainty about anything, and we have to hone our decision making and risk assessment skills and bring them to bear on employment law as we do to everything else.

For our earlier blogs in the ‘red tape’ series, click here for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation.

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

Delusions about employment law

The government has announced more consultation on employment law, this time on TUPE and collective redundancies.  Both sets of legislation derive from EU directives.

In our last blog, we looked at whether we are in fact over-regulated and over-legislated.

a)            Assumption: in the UK we retain the power to repeal legislation

The thing most politicians don’t seem to grasp is the very limited extent of manoeuvre we have, even where we want to repeal legislation.  A significant amount of UK legislation relating to employment is the implementation of EU Directives.  Short of leaving the EU (which is another discussion) we do not have the power to say “let’s not have any legislation about this”.

We can take out any additional burdens imposed at UK level but we can’t abandon the whole thing.  If we want to live in an unregulated employment environment, we need to leave the EU.  Otherwise, we need to learn to live with a regulated environment.

We can lobby at EU level for changes to laws, even the abolition of laws, but in a large group of countries, our view will not automatically be adopted (even if we have one national view to present).

The only way forward for an individual employer is to live with things as they are and make the best of that.   Lobbying may work in the longer term, but we need to stop deluding ourselves that all this ‘law’ is going to disappear by magic of governmental pen.

I talk to clients quite regularly who say – “this shouldn’t exist”, “this shouldn’t be happening to me”.  A successful business strategy has to be founded on how things are, not on how you think things ought to be.

Employment law is no different to all the other elements that are needed to make a successful business.  Whilst unfettered freedom can seem like a good idea, it is unlikely we will arrive at an unregulated climate for business, and we all have to live and trade within certain legal limits.

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

The underlying assumptions are that we (the UK as a nation):

a)      are over-regulated and over-legislated

b)      retain the power to repeal legislation

c)       can simplify legislation that we can’t repeal

The ‘red tape’ website has a special section for employment law and equality.  When you enter them, you can click the link and see the statutes under discussion.  All well and good, but unless you are used to reading statutes and statutory instruments, you will soon be repelled by the impenetrable layout and jargon.  Of course, if you don’t know what section gives which right, or imposes what obligation, you may be a long time reading before you are in a position to comment.

The questions are quite broad, and it must be tempting for people to say repeal what you can and simplify the rest.   How realistic is this as a plan?  Over the next few blogs, we shall be exploring some of the issues.

a)            Assumption:  in the UK we are over-regulated and over-legislated

We are over regulated, but the process of deciding who should have which rights is a fundamental one.   I might want the right to dismiss anyone I want whenever I want, but I might not want to be on the receiving end of such a right when exercised.  I might want the freedom to abuse anyone I choose in any way I choose, but I might not like to be on the receiving end of it.

If we started the process not with what rights should we abolish, but what rights do we feel we really need to have (as a safety net for ourselves, our children and our loved ones), would we want to abolish the same laws in the same way  if we look at it from the perspective of an employer?

I have the privilege of being a business owner, self employed, a boss, a mother of sons who work for other people, and an employment law and HR specialist who hears a lot about what goes wrong in the workplace.

To me, the whole debate about legislation is like trying to fix a difficult marriage by changing the divorce laws.  I think that in divorce law it is a good thing to have a streamlined separation process.   I would not relinquish protection from domestic violence or abuse in the interests of simplifying UK law.  In the workplace there are many real problems that people need some way of addressing, and some remedy for.

We work with wonderful organisations who really do try to bring their vision into the world and take their staff along with them, but we still regularly come across individuals who are frankly abused and damaged at work by bosses who should not be allowed to own a dog, never mind employ a person.

If I were an animal, I would have regulations about:

a)      How I am transported (which would make a lot of my commutes illegal overcrowding)

b)      How often I am fed and watered (working time regulation is OK for animals)

c)       Whether I am to be kept in conditions that make me stressed or ill (H&S)

d)      Whether I am to receive appropriate medical attention when needed

e)      How I am to be terminated

As a person, it would seem there is a sentiment that none of this should apply to me, and that regulation at work is over-regulation.    But should I not have the same rights in the workplace at the very least as an animal on a farm?

Before we call for another round of simplification (the recent Equality Act was enough simplification for me) we need to ask ourselves:

1)      Do we want to live in a world where the employment market is:

1. Regulated
2. Unregulated

..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
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People from the same workplace used to go on trips together

The Royal Wedding extra bank holiday has produced a predictable flurry of queries about who pays for the extra day.   The answer to this lies in the contract of employment.

The wording of the specific employment contract has to be looked at.  If paid holiday is expressed as “28 days per year inclusive of bank and public holidays”, then there is no right to an extra paid day for the Royal wedding.   If paid annual leave is expressed as “20 days plus bank and public holidays”, then there may well be a right to the extra day, although some contracts define what is meant by “bank and public holidays” and list them out.  In the latter case, the extra day would probably not be included and so would not be paid.

There is no general right to be on leave on a public holiday – that again depends on the wording of the contract of employment.

The whole idea of having paid annual leave is a relatively modern one.   Public holidays were invented in the Victorian era , but it took a long time for paid annual leave to become the norm.

Workers were once required to work as many hours as their boss wanted them to.  The battle ground was not annual leave, but working  time.

Weekends were not leisure time for working people, and although they might have been given time off work to go to Church, this is a long way from the weekend as we understand it.  Saturday was generally a working day and Sunday a church going day.

The traditional northern Wakes weeks were unpaid from the 1870s until the 20^th century, being a period of a week (or two) when mills were shut by the owners for refits or maintenance.    The August bank holiday was created in 1871, along with Easter Monday, Whit Monday and Boxing Day.

During the 1970s the old bank holidays were changed slightly, and New Year’s Day and May Day were added.

European law tends to treat annual leave as a matter of health and safety, and current minimum entitlements to annual leave are regulated under the Working Time Regulations in the UK.  The entitlement for a five day a week worker is 28 days including bank and public holiday, although many employers give more than this via their contracts.

The progressive entitlement to annual leave has created an entire leisure industry of its own.   When Dickens’s Ebenezer Scrooge complained about the introduction of the Boxing Day holiday, his business instincts were off base – he should have bought shares in the railway!

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

From an HR point of view this is a classic in that we have here:

1. A highly valued individual with unique creative talent highly identified with the brand
2. Behaviour inconsistent with anyone’s equality and dignity policy
3. Public distribution of key allegations and facts
4. Difficulty in not prejudging the potential disciplinary issues
5. The need to act fairly but swiftly

Did Galliano spent time with people who privately held such views and remarks and didn’t realise he was being filmed? Did he not know about smart phones? A a person can think as they want, but across the EU there are limits to what people can say and racist abuse (or rants) fall outside those limits.

Was he suffering from some kind of stress or condition that meant he spoke out of character? Was the tension of the impending show why he had allegedly drunk the equivalent of two bottles of wine, or is that a ‘normal’ amount for someone in the fashion world to consume over dinner? Did he know the Nazi attitude to homosexuals?

The reality is that once the remarks and allegations were in the public domain there was little any organisation could do but terminate the relationship.

For an employer faced with this situation it is always difficult – staff and colleagues are often genuinely fond of their colleague and there are practical problems to be faced in replacing a key person at a key time in the business cycle.

Dior have moved relatively quickly (others delay longer). Confidentiality agreements will be signed and Galliano will make his own future, still being a gifted designer. The house of Dior will continue with a new designer moving away from the remotest suggestion by way of association with Galliano that a Paris fashion house could espouse Nazi or anti-Jewish views. They won’t be choosing their new designer for politically correct views but I am sure they will be asking a few questions about their views in key areas.

Organisations frequently ignore earlier problems. They don’t like to upset their key players or creative people with restrictions of any kind. We don’t know if that existed here. If you don’t deal with issues early your brand can be damaged. Some cynics will say this is all about free speech, or all about pseudo equality. This is not about ‘political correctness‘, it is about not alienating your customer base.

Key players in some organisations are often accidents waiting to happen, believing that what they say will never be held against them. .

After Sky and Andy Gray and now Galliano, can anyone really imagine that their ‘private’ remarks do not affect their career?