Author Archives: Simon Jones

Private Investigations

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The current (at the time of writing) allegations against an unnamed (again at the time of writing) BBC Presenter have caused a media frenzy and plenty of speculation, while also showing up some of the vagaries of media law.  This post is not to discuss the specific issues in this case (we don’t know them and only have partial media reports about what has or hasn’t happened). But there are also plenty of employment law and HR issues that need to be considered when dealing with serious allegations against a member of staff.

The first of these is that if an allegation of this type is made, the organisation should respond to it immediately – but that this should be the start of an investigation process into what has happened, not jumping to conclusions. If the incidents have happened outside work this can make the process even more complicated. Even where things seem a little more clear-cut, a proper investigation may take a couple of weeks, even in a small business – as witnesses may need to be spoken to, meetings noted and documents reviewed, and a final report produced.

If the matter appears to involve something that may be criminal in nature, the organisation will probably want to involve the police. In my experience, the police will respond to such issues in one of two ways

  • They will suggest that there appears to be nothing to the issue from a criminal perspective and advise you to simply proceed in accordance with your internal procedures. In some cases they may ask you to report back with your findings in case further information means they need to rethink this, or
  • They will ask you to pause any internal process while their own enquiries are made, so as not to prejudice (or warn individuals about) the police investigation.

You may want to suspend the member of staff while the investigation is ongoing. In the past this was assumed to be automatic in cases where serious allegations were made. However, recent Tribunal cases have suggested that suspension should be considered as one possible option and if there are other, less draconian possibilities – such as moving the employee to a different location – these should be looked at.

You also have a duty of care to the individual who has been accused of the alleged offence, as well as any others who may be involved. This means keeping details confidential within the investigation and certainly not making any public commentary until matters are concluded.  This applies even when the organisation is a high-profile publicly funded body like the BBC (regardless of any additional media law implications).

In this case, if the BBC have known about the allegations against a staff member for over 7 weeks and not done anything until the news story broke last week, then they could be accused of failing to respond to the issues (and it wouldn’t be the first time that they have made basic HR mistakes). If however, they have been investigating but needed time to do so thoroughly (and may have had to wait for the ‘green light’ from the police first) then 7 weeks in not necessarily an unusual period for a disciplinary investigation. The fact that the Director-General of the BBC does not appear to be in possession of the full facts is also not unusual – he might need to be involved in a subsequent disciplinary hearing and so should only find out the detail when the investigation is completed.

The BBC has employment law responsibilities – these may be inconvenient for certain sections of the media and for those who like to speculate on social media, but it doesn’t mean that the organisation can ignore them. If you are an employer in this situation, the same responsibilities apply to you, regardless of any external pressure. You are the one who will face the unfair dismissal (or worse) claim with its financial consequences for your business if you don’t do things in a correct way.

close up shot of a smartphone screen
Photo by Brett Jordan on Pexels.com

Algorithms are not Artificial Intelligence

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Last week, the TUC released a report calling for more worker protection from the use of Artificial Intelligence, the latest technology area to become part of the mainstream. They cited issues that are already causing problems in the workplace. But are they talking about the wrong thing?

In recent years, the use of technology has become more prevalent in the workplace. One area where this is particularly true is in the field of Human Resource Management (HRM). Specifically, the use of algorithms and Artificial Intelligence (AI) has become increasingly popular for making decisions about employees. However, there are important differences between “management by algorithm” and the use of AI in the workplace that employers need to understand.

Management by algorithm refers to the use of pre-programmed rules to make decisions about employees. For example, an algorithm may be used to determine which employees are eligible for a promotion or to decide which employees should be let go during a downsizing. In this approach, the algorithm is designed to apply a specific set of rules to data about employees, without any human intervention.

AI, on the other hand, involves the use of machine learning algorithms that can analyze large amounts of data and learn from it to make better decisions over time. For example, an AI system may be used to analyze employee performance data to identify patterns and make recommendations for how to improve performance.

One of the key differences between management by algorithm and the use of AI is the level of human intervention involved. In management by algorithm, there is little to no human input in the decision-making process. This means that decisions are made purely based on the rules that have been programmed into the algorithm. However, in the use of AI, human input is still required to train the AI system and ensure that it is making accurate decisions.

Another important difference is the level of transparency involved. With management by algorithm, the rules that the algorithm uses to make decisions are often not made public. This can make it difficult for employees to understand why certain decisions were made and can lead to a lack of trust in the system. In contrast, the use of AI is often more transparent, with the system providing insights into how decisions were made and allowing for feedback and adjustments.

Additionally, there is a difference in the potential for bias. Management by algorithm can be more prone to bias because the rules that are programmed into the algorithm can reflect biases that exist in the workplace or society as a whole. However, the use of AI can help to reduce bias by analyzing large amounts of data and identifying patterns that may not be immediately obvious to humans.

In summary, while both management by algorithm and the use of AI involve the use of technology to make decisions about employees, there are important differences between the two. Employers should be aware of these differences and carefully consider the potential benefits and drawbacks of each approach before implementing them in the workplace. By doing so, they can ensure that they are making informed decisions that support their employees and their organization as a whole.

Billion Dollar Brain

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Over the last few days, Elon Musk’s takeover of Twitter and the ensuing announcement of mass redundancies has been in the news, with mostly negative headlines. Businesses often restructure and reduce staff numbers after a takeover or other major ownership changes, so what (apart from the reputation of Mr Musk) makes this one particularly newsworthy?

Firstly, unlike the recent P&O case where the employer took a deliberate decision to break the law, it’s become clear as more news has emerged that this is more cock-up than conspiracy.  Twitter seem to have taken the view that the approach to redundancy in the US would apply throughout the world without any reference to local employment laws or expectations.

In the UK for example, there is a duty to consult staff in advance of redundancies taking effect, with specified time limits when more than 20 redundancies are planned. There’s also a requirement to notify the Government (via the Insolvency Service) of redundancies at the same time. It appears from reports that Twitter announced the mass redundancies and then realised they needed to consult so are hastily trying to put together consultative arrangements. However, consultation must also be meaningful, and it’s hard to see how it could be so in this case if the decisions have already been made.

Secondly, the method of announcing the decision was crude and arbitrary – staff seem to have found out in advance of a formal announcement when they were locked out of work email and social media channels (as another example of the US-centric nature of the exercise, announcements were made at 9am California Time – after the end of the working day for most of Europe and at the end of it for the UK)

Thirdly, it now appears that at least some of the people who were made redundant are actually needed by the company, with a number being asked to return. Having been treated in such a manner, it’s unlikely that many will.

It’s a salutary lesson that even if you are a ‘successful billionaire tech business person’ you can still make major mistakes – and ones that play havoc with people’s lives. It’s little surprise that goodwill towards the company is in short supply.

If you do need to consider redundancy in the UK, and sadly they are a fact of life for many businesses at one time or another, remember these key points.

  1. Think carefully and plan where and when redundancies need to be made, allowing for consultation and other periods – including legal minimum timescales
  2. Remember your legal obligation – in the UK – is to avoid redundancy if you can so give thought to possible redeployment of affected staff
  3. Inform staff face to face if you can, but if that is not possible then an email explaining the situation and the reasons for redundancy
  4. Your decision will have a major impact on people’s lives – bear that in mind and show some empathy for what they are going through. And don’t expect people to always behave ‘rationally’ in the circumstances. (Even if you don’t have any fellow feeling for specific individuals, remember that other staff in your business will be watching how you treat their colleagues and their subsequent goodwill may depend on how you deal with the situation)
  5. Make sure you know what people are entitled to in terms of notice and redundancy pay, and pay them promptly after their employment ends.

The restructuring of Twitter is proving to be something of a case study in how not to reduce your workforce. And while Elon Musk has bottomless pockets which will allow him to buy his way out of employment litigation, most businesses don’t, so make sure you do it right!

Everything stops for tea

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Over the last couple of days, this tweet – which shows NHS workers being sent a teabag as a ‘reward’ for their efforts – has appeared repeatedly in my timeline. It’s attracted a variety of responses – the majority negative –  but some have argued that it’s a ‘nice’ thing to do and a recognition that the opportunity to take a break from the workplace can be beneficial.

As with many things related to people management, context is all important. When staff consider they are underpaid, over-stretched and/or constantly dealing with crisis management, a token, even if well intentioned, can seem insulting. It shows a complete failure to appreciate the situation from the frontline employee perspective. On the other hand, a non-financial gift can often be a more effective form of recognition of effort or achievement in a situation where the individual is already satisfied with their pay or working conditions,

Similarly, making a big song and dance of a small reward can be counter-productive. Telling staff that they are going to receive something for their work raises people’s expectations. To follow this up by  providing them with a teabag or cupcake is almost certainly going to be poorly received. In contrast, an unexpected gift – even if small – can be a nice way for a manager to thank their team for their work, and will usually be welcomed.

Managing reward and recognition is a complex mixture of economic, psychological and sociological factors. Get it right and it can result in a well-motivated and productive workforce. Get it wrong and it can have many unwanted consequences. Don’t indulge in gesture management – think through what you are doing and why you are doing it, otherwise you may find your positive intention leads to negative results.

Edit: The Chief Executive of the NHS Trust concerned has recently published a Twitter thread explaining why they took this action, as part of a wider process – you can read it here: https://twitter.com/M_J_Hopkins/status/1558043577569234946?s=20&t=3uXk2vvDoflQedGAiRgcXw. If anything it reiterates the point in my main post – that reward gestures need to be thought about fully.

HR’s Donald Trump moment?

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There has been a view for many years that the UK is governed by what has been termed the “Good chaps” theory of government – that there are certain unwritten rules and conventions that are understood by all parties and which everyone works within, even if there is profound disagreement on the issue at hand. Some commentators argue that this has disappeared in recent years as certain politicians have wilfully disregarded these understandings in order to gain a particular advantage or objective. (It was also in evidence in the Donald Trump years in the US, where Trump would say or do things that shocked people, not necessarily by their intent or outcome but the fact that he said or did them at all)

The world of work in the UK had a similar Trump type moment yesterday when P&O Ferries announced via Zoom that they were sacking 800 UK crew immediately and intended to replace them with cheaper foreign staff via an agency. Much of the shock and anger from politicians, HR professionals and others was not so much around the decision (other companies in the past have announced far bigger changes or lay-offs) but the fact that they did so in a way in which broke all the unwritten rules of employment relations in the UK. Even if they can legally do something in a particular way, most companies would approach a decision like this with an understanding of how they would be expected to behave.

P&O are not the first company to break these norms – in fact it has always gone on, even in the days when trade unions were stronger. But they are a high profile well-established ‘household’ name and consequently the expectation would be that they would do things ‘properly’.

An example of Donald Trump breaking the political norms by making personal comments about rival John McCain

What P&O have also done is shown how weak UK employment law is in protecting employees from an employer determined to behave in this manner. They will have factored in not only the cost of 800 potential unfair dismissal claims (all of which they are likely to lose) but also the fact that it will take 18 months -2 years before a tribunal hearing takes place (and even then they could refuse to pay, meaning individuals would have to take further legal action to enforce their claims). By which time many  ex-employees will have given up and the news story will have died down.

So what is to be done? More, and/or stronger employment law is the cry from certain sections. But as has been pointed out when there is a call for the UK to have a written constitution to resolve the reliance on ‘good chaps’, this wouldn’t solve all the problems – and would take time to go through parliament.

A better solutions, in my view,  would be for existing laws to be more easily applied – not only by tribunals being made faster and their judgments more easily enforced, but by the use of a properly funded statutory body similar to the Health and Safety Executive) with powers to hold bad employers to account. We already have a pretty impotent “Director of Labour Market Enforcement” within the Civil Service so the basic structure is there.

But also, HR professionals need to stop living in their unitarist utopia and accept that there is a need to recognise that employees often want different outcomes from their employment relationship. And so we need to be more open to negotiation , compromise and the role of trade unions or other employee representatives. That means going back to the ‘good chaps’ theory of employee relations, that there are unwritten rules that we all follow. P&O may be a particularly egregious example but they are in many respects the ‘tip of the iceberg’ for modern HR and business practices.