Author Archives: Simon Jones

The Law Trumps Soundbites

The Law Trumps Soundbites

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There’s been a lot of noise over the last few weeks, mainly as a result of actions of the new American president, about Diversity, Equality and Inclusion (DEI) programmes within business. It’s been compounded by some American business leaders talking about the need for more “masculine energy” in business (whatever that term means).

Even though the cultural and business contexts of the UK and the US are different, this hasn’t stopped much chatter amongst business commentators here about the future of DEI. So it’s probably worth going over what the situation is here, especially from the perspective of small business.

Firstly, outside of some public sector organisations and some very large corporates – often subsidiaries of US companies –  very few companies in the UK have DEI programmes in the US style.

What we do have in the UK though is the Equality Act 2010.  This hasn’t changed, isn’t going to change in the next 5 years at least, and sets down the basis under which all UK businesses have to act.

This Act makes it explicit that you cannot discriminate on the basis of a one of 9 “protected characteristics” (with some very limited exceptions). Every single person in the UK possesses at least two of these protected characteristics (most have more) so it covers everyone.

Discrimination can result in unlimited fines – and unlike most aspects of employment law, claims can be made against individuals as well as businesses.

Discrimination applies equally to so-called ‘positive discrimination’ – for example deliberately favouring a female candidate in preference to a man (because you think your business needs more female staff) is as forbidden as the reverse. In fact there have been recent employment tribunal cases that have reaffirmed this.

What the law does allow – on an entirely voluntary basis – is ‘positive action’.  You might for example run an engineering company where all your engineers are of a certain age group and you are struggling to find younger candidates interested in the job. Positive action might be running taster days for young engineers, or attending careers fairs aimed at school leavers or recent graduates. It doesn’t mean that a younger person is going to get the job ahead of an older person, simply that you are creating opportunities for younger people to meet your requirements. Which, if you are struggling for staff, is a business benefit. Some larger companies might run training schemes targeted specifically at under-represented groups – again this is perfectly permissible. None of this is new – firms have been doing this since the 1980s.

Regardless of your own views on DEI, or what you have read on social media or heard on the news, the situation in the UK hasn’t changed. There is no such thing as a ‘diversity hire’ in the UK, nor can you start advertising for ‘young men’ or rejecting candidates because of their race or religion.

Small Earthquake in Chile: Not Many Dead

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So, finally, after much speculation, press leaks, anguished cries from business and reports of government in-fighting, we finally have the new government’s Employment Rights Bill.

And, to be honest, it’s a bit of an anti-climax. There are lots of minor tinkering with existing rules, many of which have little uptake, or extending existing rights to people who don’t currently qualify. Some of the key proposals are:

  • The right to claim unfair dismissal, although it will become formally a day-one right, will in practical terms be reduced from requiring 2 years’ service to 9 months’ service.
  • The right to statutory sick pay will be available to all employees from day one regardless of their earnings. Currently it’s not payable until day 4 of sickness and only for those who earn more than £123 a week  (for context that means anyone who does more than 11 hours per week at adult minimum wage already qualifies)
  • Rights to parental leave. paternity leave and bereavement leave from day 1 of employment rather than requiring a minimum qualifying period. As parental leave in particular is unpaid, hardly anyone uses it currently so extending it is unlikely to see a massive increase in time off.
  • Strengthening and extending existing  unfair dismissal protections for women on maternity for up to 6 months after they return.
  • Flexible working requests must be accepted unless the Employer has a valid business reason to say no. Currently employers must justify saying no with a valid business reason so in practice it’s unlikely to make much of a difference.
  • Rules on zero hours will be changed so that workers  have the right to a contract based on the average number of hours over the preceding 12 weeks (but can choose to stay on zero hours if they prefer). Those of you who’ve read my recent employment law update (sign up here if you don’t already get it) will know that this had already brought into law by the previous Conservative government but not actually implemented.
  • Abolishing some of the previous Government’s restrictive rules on trade unions and strike action – which were rarely used by employers and were not particularly relevant to small business.
  • There will be a lot of consultation on various other aspects of employment law, including
    • The ‘Right to Switch off’  – which it appears may now just be a code of practice rather than a legal requirement.
    • Clarifying the law around employment status – an area which appears very nerdy but is key to businesses that use sub-contractors, casual workers and ‘gig economy’ working practices
    • Considering how equal pay legislation can be extended to cover race as well as sex

Most importantly, the changes themselves are unlikely to be implemented until at least 2026 – which means that businesses will have plenty of time to prepare for them.

After all the hype, it appears we are left with simply a continuation of the approach to employment law of the last 14 years – minor tinkering with particular rules that give some additional benefits to employees but at minimal discomfort to business.

(As an aside, if you’re wondering about the post title you’ll find the origin here)

Can I sack a rioter?

Can I sack a rioter?

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With the current unrest and racially motivated violence in many parts of the UK, which has resulted in many arrests and promises of ‘speedy justice’, employers may understandably want to dismiss any members of staff who are involved. The question is can they, without risking an unfair dismissal claim against them?

As with many Employment Law and HR related questions, the answer is “it depends”.

Firstly, if someone has less than 2 years’ service with you, the answer is yes – currently employees need to have worked for you for 2 years or more to make an unfair dismissal claim. Although this time limit is going to change at some point in the near future, that’s the position at the date of this post (and consequently those who are involved in the current issue).

If they have more than 2 years’ service, then you need to tread a little more carefully. Simply being arrested, or even charged, does not automatically give you the right to dismiss. You will need to investigate matters as far as possible, as you’ll need to show that the behaviour outside of work, even if criminal,  significantly affects your trust and confidence in the person as an employee.

Some of the questions you need to ask yourself are:

  • Does this behaviour prevent the employee from doing their job? If imprisoned – or remanded in custody for a prolonged period – then you would potentially have fair grounds for dismissal on the basis of capability.
  • Does the behaviour damage your business or organisational reputation? If the individual is a senior manager or is publicly associated with your company or ‘brand’ then this might be the case. You’re less likely to be able to justify it if the person is an ‘anonymous’ shop floor worker, unknown to the wider public
  • Does your existing disciplinary policy include criminal behaviour outside work as grounds for gross misconduct? While this doesn’t alleviate the need for an investigation in individual cases, it does strengthen your justification.
  • Can the individual continue to work with colleagues? If your business has a racially diverse workforce, co-workers may not want to work with someone convicted of racially motivated crimes. Again you will need to look at all the circumstances.
  • Does racially motivated behaviour breach organisational values or policies about diversity, equality and inclusion (DEI)? This may be a justification in some situations, but is more likely to be valid in a charity/not for profit organisation which has some aspect of DEI as part of its defined aims.

One thing you don’t need to worry about are claims that individual’s views are a ‘protected belief’. Political views are not automatically protected (there are some limited legal protections which wouldn’t apply here) and racist views are extremely unlikely to pass the legal tests of ‘protected belief’.  Nor are there human rights issues – the right to freedom of expression is a qualified one, which means it can restricted to protect public safety or the prevention of crime.

It’s not surprising that many employers would not want people involved in the current riots working for them. But it’s important to avoid a knee-jerk reaction. As with many HR issues, taking the time to do things properly will protect your business in the long run.

(It may seem an odd comparison, but the way the BBC handled the recent case of disgraced ex-newsreader Huw Edwards might be a useful approach to take in many situations)

Important: This post is for general advice and information and neither the author or Ariadne Associates cannot be held liable if you take action based solely on the contents of this document. If you need advice on an individual case, please contact us or seek professional legal advice

The Games People Play

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Warning: The following post contains spoilers relating to Season 2 of The Traitors (UK).Don’t read on if you don’t want to know what happens.

Like many people in the UK, I’ve been gripped by reality show The Traitors over recent weeks. For anyone who’s not seen it, the premise is simple – a group of 22 people stay in a castle, with 3 of them secretly nominated as Traitors, the others known as Faithful. Each day a round table discussion, to identify who might be a traitor, is held where the contestant with the most votes is banished. Each night the Traitors can ‘murder’ a contestant who is then eliminated from the game.( If a traitor is identified, the remaining traitors do have the option to recruit a faithful rather than murder). By the final day, if a Traitor remains they take the entire prize pot, if only Faithful remain they share the prize between them.

So what’s that got to do with people management, I hear you ask? Quite a lot, surprisingly. Here are 5 HR lessons from The Traitors

  • You cannot make decisions on ‘gut feel’

Every day, the contestants who were favourites for banishment were ones who people had become suspicious of. It might be that they were too quiet,  too loud, said the wrong thing or just on the first impression they had given others. How may times have you interviewed a job candidate who has been selected or rejected on exactly those criteria? It’s well known that interviews conducted in this way have a hopeless success rate and The Traitors proved that – they found no traitors at the round-table except when another Traitor used their inside knowledge to betray one of their colleagues.

  • Diversity initiatives mean nothing if the underlying culture is still wrong.

The Traitors contestants were possible the most diverse you could find – there were people of all races, sexuality, age and disability. Yet the Traitors themselves became a very male dominated group who (I suspect unconsciously) targeted the women in the group for murder. This came to a head when eventual winner (and traitor) Harry explained that the reason Faithful contestant Diane had been murdered was because she was “getting too clever, so she had to go”. Similarly non-white traitors were set up to be betrayed. Even presenter Claudia Winkleman commented on the ‘boys club’ atmosphere. It shows that changing entrenched attitudes and culture is a lot more difficult that simply a few diversity activities, even if on the face of it they seem to be successful.

  • It’s very difficult to go against charismatic characters.

Traitor Paul was early on voted the ‘most popular’ in the group, and used this position of being liked and respected to his advantage to deflect suspicion onto others. The other contestants put more weight on his views, many refused to entertain the idea that he might be a Traitor, and it empowered him to take calculated risks secure in the knowledge he would not be challenged. How many times in a work environment have you seen people defer to a powerful boss, even when they know the boss is wrong?  Being a charismatic leader is not a good thing if the leader’s intentions are bad.

  • Whistleblowing requires courage

In the same vein, one particular contestant  (Jas) identified two of the traitors relatively early on, but was reluctant to voice his suspicions for fear of potential reprisals. Even at the end, when it was inevitable, he still raised his concerns in a hesitant fashion. It is a worthwhile reminder that despite legal protections, whistleblowers are still often unwilling to go against the group because of the personal consequences, and why HR people should always be supportive.

  • Teamwork works – but only if everyone is working to the same end.

To increase the prize pot, contestants had to undertake “missions” that required them to work together. Being a traitor or faithful did not matter as the common aim was to win as much money as possible. When this worked (particularly in the final challenge) it was a text-book example of how effective teams support each other and work effectively. Where it didn’t (particularly where contestants were able to win themselves individual protection from murder), team members had to balance their own agenda with the group objectives. Often in a work environment we’ll see the same – people pushing individual gain against team targets.

So at the end of the day, The Traitors is a reality show designed for entertainment. But it does provide some useful pointers of how people behave in group situations – just like they do in work.

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.

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