Handling Redundancies during Covid

ACAS – the independent employment advisory service, the employer’s organisation (CBI) and trade unions (TUC) have issued a joint statement today about handling redundancies during the COVID pandemic, especially with the UK’s furlough scheme set to end in October and what, if anything, will replace it still to be announced.

The full statement is here https://www.acas.org.uk/joint-statement-acas-cbi-tuc

The key principles it outlines are something which I would always recommend to employers, no matter how big or small:

  • Be open about why you need to make redundancies
  • Give people as much information as they need to be able to respond properly
  • Consult genuinely – listen to what people have to say and give it proper consideration
  • Do it fairly – legally correctly and in a way that is ‘felt fair’ by everyone in the business
  • Handle it with dignity – a person is losing their job through no fault of their own. They aren’t just a ‘human resource’ to be disposed of.

If you need help or guidance with handling redundancies both legally, and with professionalism and integrity, please don’t hesitate to get in touch

The Upside of Coronavirus?

The Coronavirus (Covid-19) is clearly a very serious issue from a public health and business perspective – I would say that around 60% of the questions I’ve been asked over the last week or so have been on the HR implications of it.

However, in the longer term, it may turn out to have some positive impacts for the world of work.

The first is that – because they currently have to – many organisations may realise that working from home, or other more flexible arrangements, are not a disaster and we may see a change in attitudes. Even those who still retain objections will find it difficult to argue against more flexible options if they are given evidence that it clearly works.

If your business has never used homeworking before, but may now be forced to, there are a number of important things you need to consider. This twitter thread by Gem Dale is a very useful starting point.

Clearly, there are still lots of jobs (probably a majority) that require people to attend work, but we may be surprised at the number that can be done remotely.

Secondly, in the UK, it may result in a long overdue reform of the Sick Pay system. For those who qualify for Statutory Sick Pay (SSP), they (and their employers) are bound by confusing and bureaucratic rules about “Lower Earnings Limits”, “Waiting Days” and “Linked Periods”. These date back to the time when employers were reimbursed some of their SSP costs by the Government, something which hasn’t been the case for nearly a decade. There’s no reason why a much simpler system can’t be devised that provides a basic ‘safety net’ without involving employers in complex calculations.

The crisis has also highlighted that a significant proportion of the workforce don’t even qualify for the minimum level of payment. The very low paid, some of those classed as ‘workers’ not employees, and the self-employed all miss out. Some employers have said they will pay some form of sick pay to these groups, but this has been (until today) discretionary. The majority of employment law changes next month are around limiting some of the ‘loopholes’ in employment rights and if the government continues down this road then an extension of sick pay may be one of the next areas it tackles. Indeed, the chancellor’s emergency announcement in this week’s budget may be the start – now that the bottle has been uncorked it may be difficult to reseal it.

Finally, we might see the end of presenteeism – the idea that people attend work even if unwell, because the business ‘expects it’. Having someone in your place of work passing on their germs to their colleagues because ‘there’s a deadline to meet’ is an unacceptable whether those germs are Covid-19, vomiting and diarrhoea, or seasonal colds.

None of this, of course, minimises the very real problems that Covid-19 presents to society. But, like SARS and Swine Flu, it may only be a temporary issue.

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That’s my philosophy!

There have been two recent high-profile Employment Tribunal cases that have dealt with the issue of what is a “Philosophical Belief” under the Equality Act, which would entitle the individual to the protection against discrimination.

In the first case, Forstater v CGD Europe, Ms Forstater lost her argument that her Gender Critical Beliefs were a Philosophical Belief.

In the second, Casamitjana v League Against Cruel Sports, Mr Casamitjana won his argument that Ethical Veganism was a Philosophical Belief.

At the outset, it’s worth making the following points, especially as they have been frequently misrepresented in media reports

  1. An Employment Tribunal decision does not set any kind of legal precedent. It applies only to the specific case in question. However, both cases do illustrate the approach a tribunal is likely to take to any dispute, so it’s worth employers understanding how the decision has been reached.
  2. The fact that something is a Philosophical Belief does not mean it is the ‘same’ as a religion – simply that the law protects those who have deeply held values in the same way as it protects people with religious beliefs.

What both tribunals asked was whether the belief in question met the 5 tests set down by the Courts. These are:

  • It must be genuinely held
  • It must be a belief, not an opinion based on currently available information
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour
  • It must have attain a level of cogency, seriousness and cohesion
  • It 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

Forstater lost her case on the final point – her views were seen to be in conflict with the fundamental rights of a group of other people (transgender individuals). (It’s almost certain that this case will go to appeal, so we may have a series of rulings on this particular issue over next few years).

There have been a lot of over-excited comments about this whole topic, including some from HR people who ought to know better. So to clarify

  • Support for a particular football team is not a philosophical belief
  • The decisions do not mean that ‘women are treated as being below animals’
  • People are not protected because of the food they eat (or don’t eat)
  • There are no onerous new “restrictions” placed on employers.

For a small business, there are three key ‘take-aways’ from these cases

  • These are issues that people have strong views about. But in the same way that saying you don’t believe the speed limit should be 30mph is no defence against speeding, your personal views of the issue are irrelevant to what the law says
  • There is no ‘hierarchy of equalities’ – the fact you have one protected characteristic doesn’t justify discriminatory behaviour against a different protected characteristic
  • Make your employment decisions – be they recruitment, promotion, dismissal etc – for clear business reasons, not because of someone’s personal characteristics.

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“OK Boomer!” Is it Harassment?

For the last few years, we’ve been inundated by articles and conference speakers talking about “Generational Differences in the workplace”. A minority of the HR profession (me included, for example in this post I wrote over 6 years ago) pointed out that this was meaningless stereotyping and used the hashtag #GenerationBlah to mock those who persisted in promoting themselves and their products on the back of ‘why Millennials need different recruitment solutions’.

Just so we are all clear, there is no reliable evidence of ‘generational differences’, as this piece of research shows.

It did seem that this fad was dying away, overtaken by other flavours of the month. But it’s burst back into life with the current prevalence of the phrase “OK Boomer” as a generalised insult for older people – so much so that it’s now even entered political debate.

Why’s this an issue for employers? Well, depending on the context, it could constitute harassment under the Equality Act.

Harassment is defined as one person (say a young employee) engaging in unwanted conduct related to a protected characteristic of an another person (say an older employee) which has the effect of violating the second person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

While most employers would be aware that race, sex, disability or religious belief are protected characteristics, it’s worth remembering that age is too.

Whether someone is harassed depends on their perception, not the intention of the person making the comment (so “I only meant it as a joke” is not a defence). If an employee complains, you as an employer need to investigate it and consider what has been said, the context it was being said and any other circumstances. Failure to do so leaves your organisation potentially liable.

Remember too that it works both ways – so an older worker calling a younger one a “snowflake” could equally be harassment in similar circumstances.

With a bit of luck, the “OK Boomer” trend could soon become as dated as 1960s hippies calling older people “squares”. But until then, watch out for it in the workplace!

This piece was inspired by a US article called “Okay, Boomer, in the workplace could get you fired” by Suzanne Lucas who tweets as @RealEvilHRLady. It’s an interesting read especially if you want to compare UK and US employment laws!

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The Magic of a Kind Word?

 

Recent reports have suggested that the Government is considering proposals to make it a legal requirement for an employer to provide a reference for a current or past employee. The rationale appears to be that some employers have used the threat of not providing a reference to ‘silence’ complaints of harassment, especially by women. The proposal has been welcomed by some and criticised in other quarters.

But the question that we should really be asking is why on earth we still, in 2019, expect references anyway?

References were historically designed to allow upper class Victorians to assess the honesty of potential servants. Many a Victorian novel features the ultimate threat of dismissing a servant without a reference – meaning that they would be unemployable in the future. They date back to a world in which employers could operate a closed shop and exclude those who were undesirable – not necessarily dishonest. Given that diversity and inclusion are something the HR profession is supposedly promoting, is persisting with an outdated nineteenth century domestic service practice really a good idea?

And even if you don’t accept that argument, what do references tell us anyway? If I write a glowing reference for Employee X, who worked in my small, flexible organisation, how does that help a new employer  – which is far larger, with a much more bureaucratic and ‘command and control’ culture, assess whether she can do a different job in that company? How does knowing that Employee Y had 10 days off sick in the last year help you manage their attendance in a new company?

The problem is that too many employers use references as an easy get out for their own poor recruitment decisions. “Why did we take him on?” is a frequent question after an employee has left or been dismissed. “Well, his references were good” is an equally frequent reply (usually from HR). It’s as if a reference conveys some sort of magic guarantee of good performance, in the same way that some ancient peoples believed that the hooting of an owl before sowing seeds would guarantee a good crop.

I’m aware that there are some sectors where legally a reference is required (schools, financial organisations etc). But for everyone else, surely the time would be better spent on a more thorough recruitment process, rather than simply generating meaningless paperwork to justify our own decision-making inadequacies. (And as an additional benefit, it couldn’t be used as a threat against employees who do make legitimate complaints)

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