HR’s Donald Trump moment?

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.

Cricket, lovely cricket?

Cricket, lovely cricket?

One of the most difficult situations a business – small or large – can face is when an employee, or ex-employee, makes an allegation of discrimination. The natural, and understandable, reaction of many is to become defensive – but as the recent coverage of the issues raised by former cricketer Azeem Rafiq about Yorkshire Cricket Club have shown, it’s possible for an organisation to make a bad situation far worse. As one MP said, Yorkshire’s response to the allegations was a “Venn diagram of stupidity.”

I’m not going to comment on the Yorkshire situation (plenty of others have done that) but there are some key learning points for all companies to try to avoid the club’s many mistakes

  • Take any allegation seriously. If someone feels strongly enough to raise a formal complaint about racism/sexism or any other discriminatory behaviour, then you have a duty to follow it up, no matter how uncomfortable it might be.
  • If possible, have the allegations investigated independently. But don’t bring in lawyers to do it – approaching the issue as a way of avoiding tribunal claims or other litigation automatically means that the investigation is skewed.
  • Equally, don’t treat it as an exercise in reputation management. The role of an investigation is to decide if there is any substance to the allegations and make recommendations on how to resolve the situation, not to protect your business when it may have done something wrong
  • Don’t just make it about individuals. While in some cases the ‘rogue employee’ defence may be true, it’s unusual that they will have been able to get away with discriminatory behaviour unless others have tolerated or ignored it. As Azeem Rafiq pointed out in relation to events that happened in the presence of England captain Joe Root “Maybe he didn’t remember it, but it just shows the institution that a good man like him cannot remember those things” (my emphasis)
  • Don’t allow your own view of incidents to take precedence. It is sometimes suggested that  an individual is being ‘over-sensitive’ and if this is genuinely the case then there may be little substance to the allegations.  But what is ‘over-sensitive’ to you may be the culmination of a series of micro-aggressions to the individual – things which individually are not worth mentioning but which cumulatively result in a perception of discriminatory behaviour. This powerful video makes the point very effectively.
  • Take action on the findings – don’t brush them under the carpet. And this doesn’t just mean ‘sacking a perpetrator’ if deeper organisational issues are revealed.

Not dealing with matters invariably makes the situation far worse. And while your organisation may not end up all over the media or having to justify its actions to MPs, rest assured that the long term damage to it may be just as bad.

My thanks to Business Coach and Organisational Culture Specialist Lorna Leeson (@reallornaleeson) for some of the ideas and points featured in this post.

Should Home Workers be paid less than their Office Based colleagues?

A classic newspaper QTWTAIN (Question to which the answer is No), following reports in today’s newspapers in which an unnamed government minister suggested that civil servants who work from home should be paid less than those who come to the office. Given the speed with which policy U-turns take place, the Business Secretary has now said  a few hours later that this will not happen.

However, as I’ve seen similar arguments advanced in other business magazines, notably in the US, it’s worth thinking through the logic of this argument from a business, ethical and legal perspective.

The business arguments seem to be two-fold.

Firstly, people working from home are not commuting so are therefore saving money. Consequently they don’t need as much salary.

However, this fails to consider that people working at home will have higher utility bills (heating etc) and in many cases are expected to pay for their own office furniture, IT equipment, and other associated costs. So the net effect may be far less, even if you ignore the bigger question of what salary is paid for.

Secondly, it is suggested that people who work from home aren’t as productive or as willing to put in extra effort as those who attend the office. Setting aside the fact that I’ve yet to see any research or evidence to support this point, it starts from the assumption that people only “work hard” if they are closely supervised and will “slack” if they aren’t. Yet many jobs today (wherever they happen to be based) don’t require that level of micromanagement because they are task or outcome based – performance is measured on results rather than whether someone is sat at a workstation for 8 hours.

Ethically and legally, it is very difficult for a business to justify paying staff who do the same job in different locations (home or office) at a different rate, and since it’s still the case that a majority of home-based staff are women an employer who thinks of doing this is leaving themselves open to Equal Pay and Sex Discrimination claims.

The legal process for reducing someone’s pay is also a difficult and time-consuming one for an employer. Contractual changes need to be consulted on and if an employee doesn’t agree then businesses are left in the legally-fraught ‘fire and rehire’ scenario. Even if you get away with this legally, cutting people’s pay is far more likely to demotivate them and affect their productivity.

There are big issues for businesses who may be trapped in long-term leases for warehousing or office space they no longer require, as well as those businesses (such as coffee shops and sandwich bars) which are set up to service office workers who may no longer exist. This also leads to a broader policy debate about what our city centres and business districts can or should be there for, if their current purpose is no longer required. But that falls outside the remit of an HR blog post, although I might respectfully suggest it is something government ministers might want to pay more attention to.

No Jab No Care Home Job?

There’s been much in the media today about the fact that the Government is to ‘require’ care workers to have the Covid-19 vaccination in order to continue working in front line support. Those who don’t will either have to be moved into work that doesn’t bring them into contact with residents or dismissed.

While the employment law implications are one which may worry business owners, the decision throws up a whole series of HR issues for that particular sector – ones which may also have implications for a lot of employers in the broader health/social care sector (which includes many of my charity clients)

Firstly, it’s important to remember that no vaccination is required by law in the UK.  The often quoted example that ‘doctors and nurses must have a Hepatitis B vaccination’ is based on clinical guidance issued by Public Health England which is then adopted by individual NHS and other healthcare employers as part of their health and safety policy/risk assessment process.  

If the government introduce a specific law (which would take some time to go through the parliamentary processes) or regulation (which wouldn’t) then sacking someone who fails to comply would be fair in law as a ‘statutory restriction’. (Update 21/6/21 – the change will be introduced by regulation, effective October 2021) An employer must still go through a fair process – exploring redeployment options before taking a decision to dismiss – and a dismissal would be with contractual or statutory notice.

If however they introduce the new rules as (prescriptive) guidance then it will be down to the individual employer to build them into their health and safety policy and recruitment guidelines.  While employers would be expected to follow them, it would be very difficult to justify dismissing someone (or not recruit someone) using the statutory restriction argument. Employers would probably have to rely on the catch all “some other substantial reason”, again ensuring that they dismiss with appropriate notice.

In addition to the risk of potential unfair dismissal claims, the sector already faces serious staff shortages with some estimates that there are 100000+ vacancies at the moment. The prospect of sacking otherwise competent staff at a time when it is difficult to recruit, and reducing further the number of prospective job candidates, is likely to cause further problems.

Care businesses will also need to communicate the changes clearly and effectively to staff; take time to collect appropriate vaccination records; perhaps give time off for people to be vaccinated; and ensure that staff understand the consequences of not being vaccinated. This is particularly important for the small number of people who are advised not to have the vaccination because of a health condition, which may mean there are also disability discrimination issues to be addressed.

None of this is to say that the aim of having all care home workers vaccinated (or indeed health and social care staff more generally) is a bad one. But we have seen too many instances in recent years of rushed new regulations being implemented without proper thought-through consequences, and subsequently having to be amended or repealed, for employers to be confident that another hastily announced policy will be any more effective.

It’s a mixed up, muddled up, shook up world?

At the start of 2020 (when a new virus affecting people in parts of China was hardly being covered in the news) I published a blog post on the issues of philosophical belief and how employers should consider issues relating to it, in the light of two high profile cases. on veganism and gender-critical beliefs.

The Employment Appeal Tribunal (EAT) has ruled today on the appeal in the gender-critical case. That case originally failed on the grounds that the claimant’s gender-critical beliefs could not count as a philosophical belief on the basis that they failed the 5th legal test, that a belief “must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others”

The EAT overturned this view, stating that a belief would only fail the 5th test if it was ‘akin to Nazism or totalitarianism’ or espousing violence and hatred ‘in the gravest of forms’; a belief that simply was ‘offensive, shocking or even disturbing to others…would not be excluded from the protection’.

This is a subject which results in much heated and vitriolic debate, particularly on social media platforms. The purpose of this post is not to discuss the merits of these views (or the decision itself) but to highlight to employers a key part of the judgement. The EAT was very clear and explicit that:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.


b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of {Equality Act] EqA will be for a tribunal to determine in a given case.


c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.


d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

The above points are taken directly from the judgement (which you can find here if you want to read it in full) – they are also evidence that court judgements aren’t always in impenetrable legalese! They are however a very useful reminder that discrimination, bullying or harassment are something which an employer is liable for regardless of whether the alleged harasser claims they are only doing so because they have a particular religious or philosophical belief.