Monthly Archives: November 2009

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.

 

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

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 ‘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.

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 – https://irenicon.wordpress.com/

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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 – https://irenicon.wordpress.com/

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A shield, not a sword

shutterstock_95508547Employment law provides protection in the workplace for individuals from being subjected to a detriment or harassment on grounds of religious or philosophical belief.

But the statutory protections are a “shield”, not a “sword”.   The idea is to protect people from being treated worse than anyone else because of their belief.   They are a protection – not something we can use at work to make everyone else do what our faith seems to us to require.

An employee cannot call on the regulations to justify attempts to convert co-workers to their beliefs .  So a Jehovah’s witness cannot claim the right to try to convert their co-workers during working time.

Employees cannot claim protection of their beliefs to justify ill-treatment of co-workers.  This will not justify ill treatment of gay people at work if your religion seems to forbid homosexuality any more than it would justify the ill treatment of unmarried mums at work if your religion requires chastity.

Whilst there is some inconsistency of treatment when it comes to wearing religiously required clothing at work (Sikhs and turbans, muslim women and veils, Christians and crosses) we all need to steer our way tactfully back to the simple fact that the workplace is where we go to work.

Any clothing or accessories that means we cannot safely or effectively do the work we are hired to do is going to cause a problem.

If we are not willing to do the job we were hired to do we need to find another job.

Whilst I have every sympathy for anyone who finds their job changed in a way that is difficult for their religious belief after years of service (and that is another story) we can’t have a workplace where everybody can refuse anything on the grounds of ‘belief’.

While there is room for a great deal of flexibility in the workplace – we don’t have to all look the same, behave the same way, wear the same things or believe the same things – ultimately we have to get the work done.  That’s what we are there for.

Perhaps now is a good time to start giving a lot more flexibility and tolerance rather than demanding it?

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 – https://irenicon.wordpress.com/

 

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Believe it or not

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

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

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

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Is our organisation structure redundant?

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

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

 

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

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Strategic redundancy

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

We need to:

  • contract people to wider and more flexible roles (without weighing them down with impossible job descriptions and workloads)
  • arrive at a point when all jobs evolve and flex (both in the interests of the employee AND the organisation

 The key skills for the workforce of the future will be the ability to learn.  We cannot ‘buy’ labour with ready made skills and knowledge that will last through a long term career. 

Yet we still try to fit new recruits and processes into organisational structures that are not really able to contain their potentials and achievements, nor reflect clearly the demands that may be made on them.

For example

  • Accountant work with Sales when potential large clients want financial data, and the skill requirements  between the two groups begin to merge
  • TUPE projects often need multi-disciplinary approaches from HR, Sales, Finance and Business Development.

If our focus were on recruiting individuals who were able to learn new skills and investing in them as they did their work – then when the needs of the business changed a higher proportion of individuals would be able to change with it.

We could also use flexible working and worklife balance to give us a longer term pool of skilled workers who are ready to work longer hours at a later date when their circumstances change.

We could then find ourselves with fewer mass redundancies and fewer skill shortages.   Is that really impossible to organise?

Click these links for other blogs on redundancy :

https://irenicon.wordpress.com/2009/08/27/the-spaces-in-between/
https://irenicon.wordpress.com/2009/11/09/redundancy-on-the-move/
https://irenicon.wordpress.com/2009/10/28/season-of-discontent/
https://irenicon.wordpress.com/2009/04/07/an-inconvenient-truth/

and link to this web page on Irenicon – http://www.irenicon.co.uk/Consultancy/redundancyforemployers.html

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 – https://irenicon.wordpress.com/

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Redundancy on the move

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

These types of redundancy exercises are usually tactical in response to short term or local conditions.  Painful as they are, they are really about ‘cutting your coat according to your cloth’.

The key thinking behind this type of exercise is around retaining people with key skills for the organisation to go forward.

The old days when bosses just decided who to keep by who they liked the look of are long gone.   UK Employment law has established a legal requirement for:

  • objective and relevant selection criteria
  •  consultation
  •  consideration of alternatives
  • appeals
  • equality

EU and UK laws have tightened up on redundancy consultation and although there is a move towards reducing consultation timescales for collective redundancies the fact is that many consultations improve the process and do avoid job losses (if not entirely) and others arrange more generous pay offs than the UK statutory redundancy pay.

The financial costs of such payouts can take months, even years to recoup, and the damage to morale and employer reputation of a poorly handled redundancy exercise can take years to sort out.   Whilst we invest in employee engagement specialists and even ‘onboarding specialists’ to help to attract, motivate and retain key talent, this often goes out the window when we are looking at redundancy.   Money itself is not always the only issue.

What are the key factors that make a good redundancy exercise when you don’t have a lot of money to throw at it?  We find the quality of your communication and consultation can be decisive.

Click these links for other blogs on redundancy :

https://irenicon.wordpress.com/2009/08/27/the-spaces-in-between/
https://irenicon.wordpress.com/2009/11/11/strategic-redundancy/
https://irenicon.wordpress.com/2009/10/28/season-of-discontent/
https://irenicon.wordpress.com/2009/04/07/an-inconvenient-truth/

and link to this web page on Irenicon – http://www.irenicon.co.uk/Consultancy/redundancyforemployers.html

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 – https://irenicon.wordpress.com/

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Filed under discrimination, employment law, redundancy