Monthly Archives: June 2009

When does performance management become bullying?

Ask an underperforming employee and they’ ll say, setting targets and giving warnings is bullying them.

Ask their manager and they will say they are frustrated by the lack of performance.  They will tell you an employment law requirement such as warnings makes their life difficult and imposes unnecessary procedural burdens.

Ask a high performing employee and they will say the setting of targets and giving of feedback is welcome and helps them improve their performance.

Employers have often failed to confront performance problems, or ‘square pegs in round holes’ and used transfers and ‘promotions’ to move employees out of critical performance areas. Until quite recently it was common to hear “he’s been here twenty years and he’s never been any good” as a long saga of under-performance and under management unfolded.

Now underperforming staff are more likely to be ‘performance managed’ out of the business.

The practice of setting objectives, then warnings, then dismissal (if objectives are not met), can look like a fair and objective process.  But, poor practice and a few rogue players are giving performance management a bad name, so that in some organisations announcing that an individual needs to go on a performance improvement programme is tantamount to handing them their notice!

The setting of impossible goals (by over stating the goals or under resourcing what is needed to achieve them) is one of the behaviors identified as bullying.

Not only will unrealistic goals undermine the fairness of any dismissal but they may also trigger claims of bullying.  If these claims are linked to any issue of discrimination this can turn into a very expensive ‘efficiency exercise’.

Managers need to take care that their performance management and supervision is based on what can be achieved and offers adequate training, resourcing and support.

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

Leave a comment

Filed under employment law, Equality Bill, performance management

Pay and bonuses

The tax man may want tax from youThe ‘old world’ of pay and benefits systems has led us to a place that does not seem very comfortable. There is still consistent underpayment of women. Massive equal pay claims are expected to imperil sections of the public sector and lead to cuts in services. Bonus schemes have rewarded individuals who bankrupted their company (and, in some cases, the country). An industry of job evaluation has been established as a defensive necessity for employers, but many employees still feel a burning sense of unfairness about their pay.

What are we trying to achieve? The legal context is perilously limited as a starting place, as it is simply concerned with eliminating oppressively small wages (with National Minimum Wage), and manifest discrimination on the ‘equality’ grounds. But there is little legal imperative to “fair” pay, once the hurdle of unlawfully discriminatory differentials is overcome.

It may be lawful to single out workers who do not have the benefit of specific legal protections, but it will tend to undermine feelings of fairness. For example, those who never take ‘sickies’ are functionally working harder than those who do. They may argue they are being ‘discriminated against’ if they are salaried, since they work more hours for the same pay. They may have no legal redress, but is your organisation paying the price some other way? Workers can use subterfuge to restore a sense of ‘equity’ if they feel they are being unfairly treated, but this is never to the employer’s benefit.

Minimum and hourly wage structures tend to reward work by the hour, but perhaps the reality of the new world of work is to be found in piecework rates. This may be a useful approach for some jobs, but for many it is not easy to measure the “piece”. You could argue that if I am twice as productive, I should I get twice the hourly rate. But if the organisation has not established a clear expression of “value” in the jobs, and a way of measuring outputs, then what constitutes ‘productive’ will not be clear and reward structures will be adrift.

Bonus schemes come in a wonderful variety of shapes and sizes, but what is a bit startling is the number that seem to reward undesirable behaviour or outcomes.

Some schemes focus on individual achievement, and although some competition between members of a workgroup can help to get everyone to up their game, sometimes the outcome is corrosive not productive. And so many bonus schemes appear to result in women being paid substantially less. There is no reason why we should not arrive at individual bonus schemes that are gender neutral and encourage the type of performance the business needs, but many fail to do that.

Structuring short term and long term reward systems is becoming trickier. Pension funding is becoming ever more difficult, so are employees going to need two jobs to earn enough to fund daily life and save for a pension? Existing working time maxima apply on a ‘per job’ basis (except for the under 18s), so two jobs may be a way for some workers to earn enough. But this raises questions about the long term health implications for the workers, and quality implications for the organisation’s customers.

The European law-making process seems determined to regulate and control and reduce variation, in the interests of protecting workers from exploitation. At what point, though, is a worker being protected not from exploitation, but from work itself?

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

Leave a comment

Filed under contract, employment law, employment tribunal, equal pay

It’s not a bug, it’s a feature!

The world is an unequal place.   Attempts to level the playing field via legislation  can lead to inconsistencies and ‘priority battles’ that have not been properly worked out in the courts.

How do we deal with a workplace where sexism, racism, and youth culture collide?

  • Is ‘Yo bitch’ acceptable when addressed to your boss (a very tolerant boss!), but not to your subordinate?
  • Is the term ‘nigger’ a racist epithet, or a term of friendly teasing between members of the same group?

The statutory rules say that ‘harassment’ occurs when conduct creates an offensive or intimidating environment. People ‘in range’ who are offended (or associated with a person sharing the same characteristics) can have a statutory claim based on their response.

The law (wisely) does not seek to control how people think, just how they act.   This covers what people say in the workplace.    The basis of ‘equality control’ is limited to some (but not all) personal characteristics over which an individual has no control.

  • It’s OK (in equality terms)  to call a smart person stupid if they are acting stupidly
  • It’s not OK to call someone who is mentally impaired (disabled) stupid

It’s not OK at work to insult people whatever the basis and many behaviours that do not breach the Equality Act might be viewed as bullying.

In Equality terms, the law acts primarily as a ‘shield’ and not a ‘sword’.

  • An individual can complain about acts or assumptions that disadvantage them, but
  • they cannot use their own ‘protected’ characteristics to justify improper behaviour to  others.

We may have no control of our cultural or religious background, but we may not cite that as justification for our own discriminatory behaviour. .  In the world of ‘equal rights’, some rights are definitely more equal than others.

  • I am not required to respect a culture which does not respect me,

but in the working environment

  • I am required not to express that disrespect in the way I act towards member of that group.

And if my own cultural or religious position leads me to abhor gay people,  that will not entitle me to express my hostility in the workplace, nor allow me to protest disciplinary action taken by my employer if I do so.

A man who can’t take orders from women for cultural reasons won’t get much sympathy from a tribunal if he complains about a new female manager  – but he  may cause significant organisational difficulties and disruption.

In the context of religious belief, the court cases so far have clearly decided that religious beliefs do not legalise discrimination against other groups.

UK employment law is rooted  in a mixture of Victorian “master and servant” common law, local parliamentary interventions, and European-derived statutory provisions.   We struggle to keep up with changes in the world of work.

When HR is at the top of its game, the legal environment provides a springboard for supporting people and talent management in the organisation … these are not hurdles, they are the steps of a ladder leading upwards.

These are not academic consideration, but the reality of the daily calls we get for advice. HR practitioners find themselves wrestling with competing and complex issues.  Identifying solutions that are work  is satisfying and creative and makes a real contribution.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 email:

Leave a comment

Filed under discrimination, employment law, employment tribunal, Equality Bill


If older workers need to work longer to supplement inadequate pension provisions, we may end up with three or four generations in one workplace, with three genders (according to Europe, there are three genders) and dozens of ethnicities, nationalities and colours, with varying religions and creeds to take into account.

If the world of work is no longer about “master and servant”, with workers turning up routinely to an identifiable location to undertake specific tasks, how is the modern organisation to attract, retain, supervise and reward the workforce of the future, and to what end?

The death knell of capitalism has sounded more than once, but capitalism is unlikely to be a spent force in the foreseeable future. Making a profit is still going to be the number one reason for going into business, but how organisations are to achieve that is an increasing concern.

Younger workers’ motivations are often about belonging to their groups. Increasingly, social entrepreneurs are giving opportunities to individuals who are not motivated by maximising their bonus this quarter. Still, everyone needs some measures of attainment to know how they are doing.

Where does this leave the organisation’s supervisory skills, performance management and equal opportunity policies?

HR have been very much focussed on process in the last few decades. Recently some attempts have been made to arrive at ways of measuring HR’s performance, and at its best HR is a vibrant business partner supporting and developing the people side of the business.

In many organisations HR has been ‘process focussed’ to the point where they are felt to impede the efficacy of the business. Some workplaces seem almost designed to exclude the ordinary manager with complex procedures and processes that only the few in HR and the Union can understand.

Let’s look at the company staff handbook – these days found mostly on the intranet. Often this consists of a collection of policies and prohibitions based on historic problems in the organisation. Occasionally parts have been re-engineered to provide a more accessible tone, but these documents show their origin in the written word. They are often wordy and hard to understand, as the language of ‘equality’ works its way through the lexicon of HR. The modern workforce does not generally read Dickens in its spare time, yet the language of many staff handbooks seems to suggest an expectation of high levels of literacy.

Handbooks and procedures are often now to be found on the intranet and internet. But many workers have no IT access at work. Others don’t read English that well (and that applies to many native-born English people, as well as foreign workers)

Would a twitter handbook be more useful for the modern world? What would HR say?. Using the twitter 140 character limit, what would you come up with?

  • If it’s not yours, don’t touch it, talk about it, or try to take it home. [The multi-purpose equal opportunity and security policy?]
  • Give respect to receive respect – and don’t bad mouth [Dignity at work and harassment policy?]
  • Do it, do it right, and do it on time? [Quality management?]

What would your absolute minimum text include? Let us know your 140 character or less handbook entries suggestions. We offer a bottle of champagne to the entry, in the opinion of Irenicon’s directors that is the funniest and most apt (and publishable!). Deadline 30th June 2009. Entries by email to headed twitter handbook.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 twitter/annabelkaye


Filed under contract, employment law, free stuff