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Don’t let compliance lock you down

Is your way of dealing with employment law to look at compliance and do that?   A lot of organisations do just that.   If minimum wages go up, pay goes up.  If statutory holiday goes up, holidays go up.   If maternity leave goes up, that goes up.  You get the picture.

This approach to employment law tends to go with a defensive model of HR.  The processes in the business are ‘locked down’ – often by HR – to prevent ‘mistakes’ or ‘employment tribunals’.     The whole focus of how employees are dealt with is on process compliance.   A lot of insurance based schemes effectively require it.  This has an effect on the organisation – locking it down to processes and timescales that make it hard to keep agile.    

Like a Sumo wrestler, the organisation ‘wins’ by keeping their weight low, making it hard to shift things and staying in the circle.  Sumo wrestlers who are pushed out of their circle lose their match!.   Attacking Sumo wrestlers stay low and use their weight and momentum to knock their opponent out of the circle.  

Is that what someone accessing your grievance procedure is experiencing?  Do people have to ‘hack your sytems’ to get anything done?

This model has its merits in organisations that don’t need to change very quickly, or need to negotiate every detail of their change with Unions or multi-tier boards.   As long as the organisation remains stable, it can work, but anyone who tries to wrestle the Sumo champion will find themselves outside the circle in another job!

Smaller organisations and more entreprenurial
organisations prefer to stay agile  and want to be free
of ‘process’.  Flexibility is a big thing for organisations
that are trying to grow fast and respond to their market.   

They can turn on a spot, and there is nothing they can’t do.  Their approach to employment law is not based on any kind of coherent decision.  They might be generous about one thing, under the legal minima about another, but they handle things as they go.  Of course, not everyone has the skills or the training to be that balanced or that flexible.   This can work if the organisation devotes a lot of time to training, communication and embodying their values, but it can degenerate into something where the people who are not emotional or intellectual gymnasts get hurt.    A lot of organisations appoint their first internal HR person when someone falls over and they or the organisation gets hurt.   There is a temptation to ‘do a Sumo’ on the entrepreneurial gymnasts.  The experienced HR practitioner will miss having systems and processes in place.  The temptation is to import the systems that existed where you were before.   Unless you figure out where the organisation really wants to be on employment law, you will soon be the corporate ‘No’ person.  The one who says, “Employment law says you can’t…..”

Organisations need to be able to adapt and respond to change.  Employment law is part of a bigger mix of ingredients, and should not be allowed to dominate the organisation’s thinking about people, any more than consumer law should make you refuse to sell a product (unless it is dangerous of course).  Most people are neither Sumo wrestlers or gymnasts.   They need to know fundamentals in order to perform their role, but they don’t usually want to be rooted to the ground or a high wire act!.    Employment law is not about demonising or criminalising behaviour (though some off the graph behaviour does belong in that category).  It is about setting codes and signals that let people know what is expected of them, when they are able to move freely and make their own decisions, and what fundamental rules  exist that really are not to be broken.

On the social dance floor, ordinary people can do great things, cooperating with their immediate partner and within a group.   They do this because they learn the fundamentals of the dance and the codes of the dance floor.

Social dancers are not show dancers, they are not athletes but people working and playing in co-operation (and sometimes competition) with a group.   Too many rules and the dancers melt away to dance somewhere else.  Too few and the egoists take over the dancefloor and destroy the flow.

Employment law is a powerful tool in the workplace.  Like the codes of the tango dancefloor it can be used to help the flow of work and relationships.   Our strength in the UK is our ability to make contracts that reflect our own organisational priorities.   We can choose to Sumo, do gymnastics, dance tango, or anything else and embody that into our contracts and handbooks.

And in the interests of equality, everyone can dance – here is a picture of a wonderful ‘disabled’ dancer.

The question I want to ask you today is:

Do your contracts and handbooks speak with the right voice for your organisation and set the fundamentals and codes you need for success? 

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 contract, employment law, employment tribunal, free stuff, www.irenicon.co.uk

Swine flu – who pays?

Sick pay

Pandemic or not, people off sick with ‘flu are covered by their normal sick pay rules. Everyone is entitled to statutory sick pay (SSP) but this only applies after three ‘waiting days’ and pays £79.15 a week to anyone earning £95 a week or more.

Employers may contract to pay additional sick pay above SSP, but there is no default entitlement – it depends what the contract says. And there’s usually a time limit on sick pay, so an individual’s sick pay will depend not only on the sick pay scheme, but on how much sick pay they have already had.

Medical certificates

There is no need for anyone to visit their GP to get a medical certificate for the first week of absence. Individuals can ‘self certify’ for SSP for the first week, and most employer ‘top-up’ schemes follow that pattern. Individuals who are off more than one week will need a medical certificate to keep claiming SSP. They should phone their GP surgery to find out how to get one. Usually it is necessary to be seen by a GP but if there is a real outbreak of mass ‘flu, there may be some temporary change of rules. This would certainly help free up GPs. Let’s hope someone has the sense to do this if needed.

Family commitments

If schools are shut, then parents may be eligible for unpaid “dependants leave” in order to arrange care for the children. If the children get flu this will also apply. This is normally a brief period of unpaid emergency leave – say up to 48 hours. “Dependants leave” applies equally to elderly or other relatives, or members of the household dependant on an individual for care. The time off is to arrange care – there’s no general legal right to time off to look after a relative or dependant.

And there is no general legal right to be paid for any of this time. Some employers may agree for annual leave to be used. Others may agree for time to be made up later, but they are not obliged to.

Workplace closed by employer

Anyone working in schools or hospitals is covered by national and local agreements that deal with what to do if the workplace is closed.

If the contract provides for flexible working, annual hours, or homeworking, then these provisions will normally apply if the workplace closes.

For ordinary workers on standard contracts, a lot depends on whether the employer has the right to make unpaid layoffs (sending the worker home without pay). If the contract itself does not expressly say that the employer may lay off without pay, then ordinarily any layoff would have to be paid.

In an unpaid layoff, the employee is still entitled to statutory “guarantee pay”, paid by the employer. For this, a “layoff” is a day when less than 50% of ordinary work was provided. For the first five days layoff in any 3 month period, employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day.

If the government orders a general closure of workplaces, it may be that contracts are ‘frustrated’ by a supervening event. Technically this may mean that there is no obligation on employers to pay during the period of ‘frustration’. Frustration is a technical legal term, and does not simply mean “feeling upset”. We will revisit this, if necessary, in a later blog.

Disabled or vulnerable workers

If an individual has a medical condition that make them more vulnerable to ‘flu, they may be advised by their GP to avoid public places. This may affect them getting to work, or being at work. If the individual is disabled within the meaning of the Disability Discrimination Act (DDA), then the employer will need to consider making “reasonable adjustments” to their duties to take account of their condition. The DDA normally deals with long term adjustments, rather than short term ones. But it would be wise to make appropriate adjustments – for example, if you could arrange for people to work effectively from home, it would be silly not to do so. Similarly if a pregnant woman is advised to avoid the workplace, you should make appropriate adjustments to her duties.

But adjustments should be based on qualified medical advice, not simply on an employee’s self-diagnosis of some particular threat.

Too nervous to come in

Employees who are frightened may decide not to attend work to reduce their risk of infection. If they are not ill (or a vulnerable worker) they are not entitled to be paid or to claim statutory sick pay.

Health and Safety

Employers may have their own health and safety plans for ‘flu pandemics. These would normally include:

  1. Reducing business travel
  2. Reducing face to face meetings
  3. Reducing attendance at work/commuting by using alternative technology
  4. Encouraging workers to take time off as soon as any symptoms showed, rather than struggle in and infect their co-workers
  5. Encouraging home working where possible.

We are happy to deal with queries on this subject by email: advice@irenicon.co.uk or via twitter www.twitter.com/AnnabelKaye or put questions on our blog in the comments section.

 

 

 

 

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Imaginary man would have been treated same way?

A simple (if not entirely accurate) way of looking at sex discrimination claims could be summarised as:

  1. was there a detriment?
  2. is there a comparator (real or hypothetical)?
  3. is there a non gender related explanation for the difference (if any)
  4. if there is a comparator and a difference and no explanation then the tribunal may infer discrimination.

An infinite amount of time and money has been spent litigating over who or what is an appropriate comparator (whether real or hypothetical) and what is a detriment.

In the recent case of Marriott Motor Group and Ors v Cottingdon http://www.bailii.org/uk/cases/UKEAT/2009/0319_08_1404.html the Employment Appeal Tribunal (EAT)considered when this inference might be drawn and decided the tribunal had not made the necessary primary findings of fact (eg what they believe happened) and their inference of discrimination was premature.

EAT also decided an imaginary man in the same situation might have been treated the same way.

It is not enough for a woman to say this is happening because I am a woman – she must assert a specific comparator – real or hypothetical that is appropriate. However employers who fail to provide an explanation for different treatment remain at risk of the ‘inference test’.

There is a big difference between asserting something – this is my explanation – and proving it – here are the records of what happened before.  No-one should walk into tribunal thinking all they have to do is talk and all will be well.

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