Tag Archives: unfair dismissal

Who is to blame? Shoesmith an exception?

shutterstock_81310291The tax payer is about to pick up a mighty bill as the sorry saga of Sharon Shoesmith has ground its way through the courts.

Sharon Shoesmith’s story is just an extreme version of what goes on every day.

To summarise:

  • Under resourced/overstretched team
  • Impossible goals
  • Something goes wrong
  • Something must be done
  • Someone must go
  • Unfair Dismissal

This endless cycle (in small and large organisations) creates an outcry that unfair dismissal should be  abolished or eliminated  – another Something Must be Done.   Shortening the cycle by removing one step is an attractive option but it does not really deal with the fundamental problem.    So often we see organisations remove an individual for underperformance without making any changes to how the business/department is organised, managed, resourced, or run.

Guess what?

A few months or years later we are having the same conversation again about a new person!  ‘Lessons have been learned’ often translated into ‘heads have rolled’ and that’s the end of that.  The real cost to individuals, businesses and in this case the tax payer is very high.

Recruitment errors are not the same as supervision errors

We all recognise that sometime the wrong person is recruited and the only way to solve the problem is to get another person.   But there are some fabulous opportunities to improve our own managerial processes and to learn from when things go wrong.  One of the things we might decide to learn is that sometimes our goals are over ambitious in terms of our resources and we have to be realistic about what real people can achieve.

Frustration isn’t a plan

Reaching for excellence is a fabulous thing, but if you are frustrated by your team’s inability to reach it, then frustration can set in.   So many of us just repeat what we did before (saying it LOUDER) and are surprised that we get the same results (only LOUDER). Then we snap and we want to get rid of the person we feel is to blame.

It’s human.  It’s understandable.   It doesn’t really get anyone to where they want to be.  And it will trigger unfair dismissals.

There is a better way

It is possible to improve performance, but it takes time and thought and effort by the Boss.  Sometimes we are so overwhelmed by struggling with what is going wrong that we can’t even imagine finding the time and energy to create a better way to work.   The whole problem can seem too big to tackle.  The Boss ends up working till 3am to meet deadlines or redo sub standard work .

We see it all the time.  With a bit of support, a bit of clarity and the right arrangements between boss and staff we can all avoid a mini-Shoesmith.

We just need to have the conversations and do the thinking.  Employment law is just one of many reasons why you might not want to sack the person who seems to be to blame without going through any real process.  There are better  (and cheaper) ways to end your frustration than spending a large amount of your (or tax payer’s) money on unfair dismissal awards and legal fees.

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A word to the wise

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 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 is 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

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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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Teacher claims ‘right to distribute pornography at work’

Miss Henderson worked as a mentor and leader for girls aged 11-16 who had barriers to learning, at inner city school in the London Borough of Hackney. She was sacked for gross misconduct after it was discovered that she had been using the school computers to download pornography and distribute it to her colleagues.

She denied that the material (which was explicitly pornographic) was inappropriate, arguing that it might be an enriching experience for the children to see this and from which they would suffer no harm. This argument did not convince the school who dismissed her.

She claimed that because the school had no explicit rule against teaching staff bringing pornography into school or viewing pornography at school, then she could not be disciplined for doing so. And she claimed that dismissing her was a breach of Article 10 of the European Convention on Human Rights – which protects freedom of expression.

The case made its way through tribunal and employment appeal tribunal – both of which found in the school’s favour. How much did that cost in legal fees?

Employers often complain about pointless cases being brought against them in tribunal, but wasn’t the school a bit of a sitting duck? There was nothing in the contract or policies issued by the school the restricted the use of the internet in any way.

If you are an employer who wants to restrict what can be downloaded on your computers (for whatever reason) it is a cheaper and more effective option to issue a simple internet policy or set of rules.

If the school had had such a policy in place (and could show it was issued) they could have stopped this tribunal at a preliminary hearing and may be even have gone for costs against the claimant instead of spending vital money from the education budget on litigation.

A short clear internet usage policy would have done the trick!    

The picture is clipart posed by models and not of the real teacher or class

Christopher Head is director of specialist employment law consultancy Irenicon Ltd. One of Christopher’s key skills is drafting short but comprehensive employment contracts in plain English that put the employer in the driving seat with problem staff. http://www.irenicon.co.uk/ email: info@irenicon.co.uk tel: 08452 303050 (local rate caller number) fax: 08452 303060

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Filed under contract, employment law, employment tribunal, unfair dismissal

Unfair dismissal changes – fiddling while Rome burns

The government is considering increasing the qualifying period of service for unfair dismissal to two years.

In the 30 years I have been advising on employment law, the qualifying period of service for unfair dismissal has moved from six months, to one year, to two years (for small businesses) to one year.

When it was six months, managers waited until seven months to dismiss. When it was a year, they waited 13 months! Quite often the reason for dismissal existed for weeks or months before the unfair dismissal deadline passed. What would have been simple is made complicated by a few weeks’ delay. Why is this?

Business owners rarely get into business because they are great with staff. Normally they are great at something … that at some point involves having staff for that ‘something’ to reach more people and make more profit. Being human, we put off ‘difficult’ conversations until the last possible moment. Criticising someone’s performance at work, and especially dismissing them, is a difficult conversation for most managers and so it is likely to be avoided or put off.

Whatever the qualifying period of service, businesses can only thrive when they get the performance they are paying for. The critical skill for business owners is to find a way to motivate staff to perform to the right standards. But all too often, the ‘fear’ of employment law obscures the issue. We hear of entrepreneurs who decide not to have staff because of employment law. But nobody refuses to have customers because they don’t understand consumer law!

It is easy for advisors to sell ‘fear’ to small businesses – it encourages them to buy insurance policies, and to retain advisors. Awareness of risk is sensible – we can take reasonable measures to reduce it. But generating fear is counter-productive all round. When we start to act in accordance with our fear rather than the facts, then we get things like people refusing to go out at night for fear of violent crime, even though they are in an area of low crime.

A year is a fair amount of time to find out if someone can do a job. What do we expect to find out in two years that we don’t know in one? Employers need to face their fear of employment law, and make sure they know how to handle performance and other issues. Changing the qualifying period of service doesn’t make the issue go away. Managing people effectively is a key skill for the successful business. And despite what many people say (particularly those trying to get into your wallet), employment law is not to be feared. Use it wisely, and incorporate it into your management processes sensibly, and it is a business friend, not an enemy. And it doesn’t take a ton of paper or impossibly complicated procedures to get it right … those are the mistakes that come from not knowing, not from knowing.

The tragedy is that fear of employment law often encourages businesses to adopt unnecessarily complex procedures that cause rather than solve problems. And that fear often stops people from taking the sensible management action at an early stage that would pre-empt an employment law problems arising in the first place. Thirty years’ experience with our clients from the tiny business to the multinational makes it clear – you don’t avoid employment law problems by insuring, and fear is not a good teacher. You avoid employment law problems by knowing your ground and managing your business for profit.

 

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

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In the midnight hour

Legal time does not work the same as any other time.  A legal calendar for obvious reasons has to be more precise than we normally are.   Here are some things that trip people up all the time and create some interesting results.

1.       Notice

If I give you notice today, it will start to run at midnight – in other words, whatever time today I give you notice, today won’t count (it is in effect day zero when calculating length of notice) .  Technically anyone given a week’s notice on Monday is therefore employment until midnight the following Monday (and entitled to pay for that day).  Similarly a month’s notice given on 1st of a month expires at the end of the 1st not the end of the last day of the month.

Why do we care?  Well people who want all their money care because they can claim an extra day.  Employers who get this wrong care because they have to pay an extra day’s pay if they are working on the wrong basis.    Anyone giving statutory notice of their intention to take leave or require an employee to take leave on specific dates will need to allow for this………the list goes on.

2.       When is a day not a day?

A day starts immediately after midnight but if you are calculating statutory sick pay, the first three days are normally waiting days and do not attract statutory sick pay.  Thus anyone who is off sick from Monday to Friday is entitled to two day’s statutory sick pay in their first week of absence.

3.       When does a week start?

What day of the week is the first day of the week?  For many this is a religious question and depends on when a particular religion’s Sabbath is. However, in the UK a week (unless otherwise specified) starts on a Sunday and ends on a Saturday.

4.       How many hours can someone work in a week?

Lots of people believe the 48 hour limit under working time means people can’t work more than 48 hours in a week (unless opted out).   In reality it is an average, so as long as the average hours over 17 weeks (if no other period is agreed) do not exceed 48 hours, employees can work more than 48 hours in any given week.

5.       How long is a year?

52 weeks?  12 months?  Not always.   For the purpose of calculating qualifying service for unfair dismissal a year can include an extra week for statutory notice (after four week’s service statutory notice entitlement is one week).  Unless an individual is summarily dismissed for gross misconduct, they are entitled to add on that extra week (in order to claim unfair dismissal) even if they received  money in lieu of notice.  So, sometimes a year is 51 weeks long.  Similarly two years is 103 week’s long.

In the mad world of employment law, few things are what you might expect and it may already be far later than you think.

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

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Reasonable People

We all use words to conduct our daily life.  If I could really see inside your head, I might find that what you associate with things such as ‘good’  or ‘wicked’ might be different to mine.  Many teenagers use ‘wicked’  to describe something they like!

English employment law tends to use  everyday words to describe some very specific concepts.     An employment tribunal judge  talking about ‘reasonable in the circumstances’ ( a key test of whether a dismissal is fair)  will not necessarily be using ‘reasonable’ in the same way as a typical manager.

I doubt whether anyone has woken up and thought:  “I will be unreasonable today and make decisions about my staff that make no sense whatsoever”.   However rational (or irrational) our thinking might be, we naturally tend to believe that our actions and decisions were ‘reasonable’.

Employers are often bewildered when employment tribunals don’t agree with them!    Many believe that tribunals are biased against them  (just as employees often believe the opposite).

This is because an employer’s personal interpretation of reasonable (whatever that might be) is not based on the same concepts as an employment tribunal’s.     A tribunal will be looking for a documented process to show how the decision made.  This may often include what alternatives were  considered and why they were rejected. 

Managers can be extraordinarily reluctant to go through this process – feeling that however  they arrived at their conclusion, it is a right one.   HR can be very keen to document the mechanics – e.g. the minutes of a meeting, who saw whom and when, but can be very reluctant to offer any challenge to a manager who is going down an eccentric or dangerous track.  As in any other decision making process, if the method of gathering data and evaluating it is defective, there is a very high chance the decision will be wrong.  Sometimes we all need someone to say – “Hey – pay attention to that, it could be important” or “Are you sure this is really the key issue?”

Tribunals do not look at whether a dismissal decision was right or wrong, but whether it was ‘within a range of reasonable responses’.  If the business can demonstrate a thoughtful process and can identify why other alternatives were not appropriate, it is rarely a problem to meet this test.  

Aligning your decision-making process with what the business needs, and adding in a fair degree of self-challenge at each stage, will allow you to make appropriate decisions for the business without undue fear of legal challenge.

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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