Category Archives: discrimination

Clarkson and the N Word – a slippery slope?

 

Jeremy Clarkson is in the news once again.   Last time for reciting the old nursery rhyme eeny meeny miny mo….and going on to use the now forbidden N word.  And now we have the ‘slopes’ debacle.   It seems there is no end to the ways in which one media person can create offence to various groups.

This is not the first or second time Clarkson has offended. I am not writing to debate the rights and wrongs of old  childhood nursery rhymes, changing language and societal norms or even race discrimination.   But few organisations would be able to endure this kind of publicity…

 

What if you were the BBC?

What if it were your brand being associated with this debate?

Would this be damaging to your business?

Many organisations struggle with managing ‘stars’ who do things everyone else would get fired for.  Jeremy Clarkson is not employed by the BBC. Like so many people he is not an employee of the organisation he is so publicly associated with. If he were an employee, internal rules and policies apply. If necessary disciplinary sanctions, even dismissal, are considered.  But freelancers and sub-contractors  are different.

If your sub-contractor or freelancer starts trashing your brand where do you stand?

Do you have a written agreement with your freelancer?

Does it deal with this sort of thing?

What rights would you have as the person whose brand is under fire if this was going on around your business?

Please complete our survey on freelancers 

Please complete our anonymous survey on the types of freelancers you pay and help us research the issues around managing and contracting freelancers .  Click here to start the survey.   We are not collecting email addresses  – just doing research.  Click the link at the end of the survey and claim your copy of our Freelance Top Tips – will save you time and money.  Usually onlly available as part of packages costing £100 or more…

 

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Filed under discrimination, Freelance Workers

Shock and horror – workplace chat about the Woolwich murder

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A few years ago a client had a team who came to work after an IRA bombing.

Naturally conversation over coffee break turned to the incident.   Many people were very upset and voiced strong opinions. Some staff voiced their opinion that all Irish people were terrorists.  The boss agreed and everyone returned to work.

The one Irish member of staff was extremely upset by this and felt accused of being a terrorist and a murderer.   They took their employer to an employment tribunal claiming race discrimination.  They won.

Yesterday’s shocking attack on a young man in Woolwich has shocked and angered many people.  The twitter stream and facebook are alive with people expressing their shock and their opinions on who did this and why.

Some people are expressing their views about  ‘all Muslims……’.

Whilst there is a time and a place for legitimate debate on the differences between religion, fundamentalism and politically inspired terrorism the workplace is not the best place for most of this debate.

If you are the boss, today would be a good day to talk to your team and briefly remind them that blaming all Muslims for the acts of some is likely to cause great distress to Muslims in your workforce (and those associated with them) and is likely to be an act of religious discrimination.

It is also a good idea to remind your team not to share videos, emails, tweets etc at work that blame all Muslims for this act.

Check your equality policy, social media policy, and internet policy if you have them.

Our thoughts go out to the family and relatives of the young man whose life was so brutally ended and to anyone in the world who has lost someone due to violence (whatever the reason).

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The past is no guide to future performance

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

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

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

Why is it we are so bad at change?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Filed under bullying at work, discrimination, employment law, performance management

Seeing Red

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

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 Websitewww.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under discipline and dismissal, discrimination, performance management

Too hot to handle?

I think I am a grown up, and able to decide for myself what to wear to work (and what not to wear).   I don’t really like to be told.  Recent walks by women all over the world under the banner of Slut Walks (http://en.wikipedia.org/wiki/SlutWalk) got me thinking about how we seek to control what women (and men) wear.

A  burka ban (http://www.telegraph.co.uk/news/worldnews/europe/france/8442622/French-burka-ban-police-arrest-two-veiled-women.html) can seem ‘Unbritish , unless there is a real need to see a woman’s face (teaching or giving evidence in court for example).

But a crucifix ban (http://www.timesonline.co.uk/tol/comment/faith/article7089691.ece) can be lawful if  necessary for Health and Safety.  But British Airways famously ran into trouble when allowing the headscarf and prohibiting the wearing of a visible crucifix.

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). Perhaps that was another ‘safety’ issue!.   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 proper 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.

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?

Is it right to assume that customers are automatically put off by people who look different to them?    When I 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.

There is a segment of the population that finds it hard to deal with people who are not in business suits,but 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!

It is often far more important to have a conversation with your staff than admire their outfit.

I once 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?

“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), it may be legitimate to ask staff not to wear it.  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 may  also have 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. (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 what I wear to go to work 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?

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?

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?

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

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Filed under discrimination, employment law, uniform and dress codes

What I say, or what I mean? Red tape and employment law

This is the fourth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at the opportunity to simplify legislation

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

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Filed under employment law, Equality Bill, free stuff

Bonfire of the delusion – do we have the power to repeal employment law?

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

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Filed under employment law, Equality Bill