Left Holding the Baby (and other employment problems)

There are certain questions that crop up regularly among my small business clients, and while every circumstance is slightly different, here’s some advice on how to approach some of these common issues if they occur in your organisation

I’ve an employee who always seems to need time off because of problems with her toddler. Last week she took two days off because he had an upset stomach. Her colleagues are getting a bit fed up with covering for her.

First of all, your employee has a legal right to take unpaid time off if an emergency situation arises with a dependant. This right is restricted to genuine emergencies (for example, if nursery ring to say the child is sick and needs to be collected) and not known issues (such as a hospital appointment for the child), and is also restricted to the time required to put in place alternative arrangements – which depending on the circumstances might be anything from an hour to a day – not to provide the care itself. It would be unusual for an ‘emergency’ to last more than a day. If the individual does need more time off, you may be prepared to allow them to take holidays or some other arrangement, but this is at your discretion.

If the employee seems to have ‘emergencies’ regularly, you can discuss with them the situation and look at ways of resolving it. Current case law suggests that the employee is not entitled to an unlimited use of this right. Consider ways that you might be able to get around the situation – for example short-term changes to working hours, or some other flexible arrangement. In the case of childcare particularly, you might want to discreetly find out if the employee’s partner could assist more (often in these cases it is the mum who ends up dealing with the problem every time, not the dad).

My business trades a lot with the EU and we’re badly affected by Brexit. A few members of our staff are vocally pro-Brexit. Can I sack them for promoting something which is damaging their employer?

Probably not. Although political views are not a ‘protected characteristic’ under the Equality Act, if someone feels they have been dismissed for holding a political opinion they can make an unfair dismissal claim even if they don’t have the normal two years’ service. You would have to have to show that dismissal was a reasonable response – and given that it’s unlikely that you can directly blame your employees for the current situation, it would be difficult to substantiate this.

What you can do is make it clear that people should not be using the workplace to promote political views. Someone who repeatedly broke this rule could be taken through the disciplinary procedure and ultimately dismissed. Make sure you apply the rule consistently though, not just against views that you disagree with!

I’m closing down part of my business in a few months and told the one employee in this area he’d be losing his job, and that he would be doing lower paid work somewhere else in the business. He got very irate and walked off the job, and has never returned. Now he’s threatening constructive dismissal – does he have a case?

Unless you were particularly abrupt or unpleasant in the way you told him or did it in a humiliating way (announcing it unexpectedly in front of colleagues for example), it’s unlikely. You are however putting him at risk of redundancy and needed to consult with him – including on whether the alternative work is suitable (if lower paid, it’s unlikely to be). That could leave you at risk of an unfair dismissal claim if the employee has more than 2 years’ service. As he’s walked off before you could undertake proper consultation, or even give him his legal notice, you are likely to have a defence against a claim, but it could get messy and time-consuming. If he does make a claim, consider settling through ACAS early conciliation or via a Settlement Agreement.

Overeducated and Underskilled – is it Recruiters’ fault?

Yesterday’s report by the Office for National Statistics that “31% of graduates are ‘over-educated’ for their job” has attracted a lot of attention, especially given the apparent conundrum that businesses are constantly complaining that people lack the right skills for the jobs.

There are a lot of issues here – including the question of whether the education system’s purpose is simply to provide trained labour for business; the consequences of the expansion of the university system; and even the philosophical question of whether it’s possible to be ‘over-educated’.

However, I want to concentrate on one factor which business has direct control over: recruitment. It seems to me that part of the problem is either laziness or ignorance on the part of those who manage recruitment.

The ONS report makes what I consider the same error as many businesses – to confuse education levels with skills. And as a result, we get what the CIPD’s David D’Souza describes as ‘weak signals’ in the labour market.

Too many recruiters will simply add in the phrase “degree-level educated” as an easy way to sift candidates, without even thinking about whether the skills or knowledge a degree brings are relevant to the job being advertised.

Take for example a recent job I saw advertised, for a Project Manager. It was in a very specialist sector and yet the first requirement in the person specification was to hold a degree. Not a specific, job related degree, but any degree. Given that many companies use automated sifting systems as part of their recruitment process, they would presumably reject someone without a degree but who had very relevant experience, but someone with a degree in a totally unrelated subject (let’s say Mediaeval History) would make it through to the next stage.  When they came to review the shortlist, hiring managers would no doubt tut about the shortage of good candidates.

Degrees are important in certain situations – particularly when we want people to demonstrate a certain level of independently verified knowledge of a subject. But in most cases we need to be understand what skills and knowledge a degree demonstrates; whether our job role actually requires these; and if there are other ways candidates can demonstrate that they possess these skills and knowledge.

Of course, this takes more time than the simple “just put out the advert on the job board” approach. But as I’ve argued repeatedly, recruitment is a major investment decision (especially in small businesses) and it’s worth taking a little more time to get the right person rather than making lazy assumptions.

College graduate students

MPs and Constructive Dismissal

MPs and Constructive Dismissal

One of the side products of this week’s decision by a group of Tory and Labour MPs to quit their parties and sit as an independent group was a somewhat heated discussion on parts of social media as to whether some of them, particularly Liverpool Wavertree MP Luciana Berger, would be able to claim constructive dismissal over their alleged treatment by their party organisations.

The first thing to say is that MPs are not employees of their political parties, so the simple answer is no. But as constructive dismissal is something that worries many small employers, it’s worth clarifying what it is – and isn’t.

Constructive dismissal is behaviour by the employer that is so awful that the employee can consider that they no longer have any trust or confidence in the organisation they work for and resigns as a consequence. It can be thought of in some respects as the opposite of gross misconduct (a situation where an employee commits an act that the employer can no longer have any trust or confidence in them, e.g. stealing, assault, leaking commercial secrets to a competitor etc).

It could be a single act by an employer, such as unilaterally reducing someone’s pay or demoting them to a lower grade. It might be humiliating someone in the presence of their colleagues and subordinates (this Gordon Ramsay clip is a good example – warning contains strong language). It can also be the final straw in a series of events which allows the person to conclude they can no longer work there.

It’s also worth remembering that an employer is responsible for the behaviour of their staff. So, if an organisation ignored or failed to deal with allegations of bullying, harassment, insulting or threatening behaviour against an individual employee by their colleagues, which then led to the individual resigning, they could be deemed to have constructively dismissed the employee.

Constructive dismissal isn’t a situation where an employer makes a decision that the employee is unhappy about (I’ve been asked questions about in the past about whether making someone move from a private to a shared office could be constructive dismissal for example – it wasn’t). And remember that if the person doesn’t resign there can be no constructive dismissal.

Constructive dismissal is also quite rare. There are, I think, two reasons for this. The first is that it takes a lot of courage, even in a very difficult situation, to simply walk out of a job.  The second is that to win a case at a tribunal, the onus is on the employee to show that the employer’s actions were such that they were justified in resigning, rather than a normal unfair dismissal where the onus is on the employer to show that its decision was fair and reasonable.  Even though the case is – like all employment matters – decided on the balance of probability (what the judge thinks is the most credible explanation of events) rather than the criminal standard of absolute proof, it still puts an additional hurdle in the way of a successful claim.

Based solely on the reports and social media postings I have seen, had she been an employee then Ms Berger certainly would have strong grounds for a claim. Whether she would have succeeded would have been up to a tribunal judge to decide. But it’s a useful reminder to employers that trying to ‘force’ someone  (or allowing colleagues to force them) out of an organisation can have far-reaching consequences.

Gordon Ramsay

Prepare for the Worst, Hope for the “not too bad”

This week’s parliamentary shenanigans have left the possibility of a “No Deal” Brexit very much on the cards – despite repeated statements from politicians of all sides that No Deal is not what they want.

Given that there is – at the time of writing – only two months to 29 March, the date on which the UK is due to leave, small businesses should be taking steps now to prepare for the worst-case scenario. In HR and employment terms some of the common queries I have had are:

1.       Can I still employ existing staff who come from the EU?

Yes, you can, although they will – after 29 March – need to apply to the Home Office for what is called ‘Settled Status’. Information on the process is available here.  You can continue to employ them while they go through the process. The official Government position – for what it is worth – is that unless there is a specific reason to deny settled status (e.g. criminal convictions) it will be granted.

If there is a deal, they will still have to apply for settled status but have up to 31 December 2020 to make their application.

People who have been in the UK for less than 5 years may only be allowed to apply for “Pre-Settled Status”. You will still be able to continue to employ them provided they have applied for,  and then been granted this.

2.      Can I recruit people from the EU after 29 March?

If there is a deal (with a transitional period) then yes. But if there’s no deal, then the situation is very unclear.

The worst-case situation is that new recruits from EU countries will need to meet the same or similar criteria to workers from other countries. This will mean applying for work visas (the new name for work permits) and registering your company as a sponsor organisation. This is a long-winded and convoluted procedure which many small firms have avoided in the past precisely for that reason. There are proposals to change the system, but they haven’t as yet been agreed or implemented.

If your business uses short-term ‘low skill’ labour (e.g. seasonal agricultural or hospitality staff) then there are proposals to implement a scheme of 12-month visas which will allow people to work in the UK temporarily. Again however it needs to be stressed that these are still only proposals.

Whatever system is put in place, employers will still be expected to carry out the normal “right to work” checks before employing someone.

3.     What if supplies are disrupted – can we lay staff off temporarily?

It depends – read my full post on this issue here.

4.    What about existing staff who need to travel to EU countries for work?

If there is a no-deal, the EU has said that people from the UK should not need a visa to travel to EU countries for short holidays or business trips. They will however need to apply for an ETIAS “visa waiver” document (similar to the ESTA scheme operated by the USA) every 3 years.

If you have business trips planned at the end of March or early April, there is the possibility of flight disruption.

If you have staff driving in Europe – whether this is for business trips or delivering freight –  you will have to make sure that all drivers carry a “Green Card” to show they have insurance. As this can take a month to process, you will need to apply by the end of February at the latest.

It’s also likely that in a no-deal situation, the EHIC card – which allows people to receive free health service treatment in any EU country – will no longer apply to UK citizens. So you will need to make sure that you have adequate health insurance for any employees travelling outside the UK.

The situation is extremely fluid at the moment. Although the information is correct at the time of publication, it may not be in a day or so. Keep an eye out for future posts. If you have a Brexit-related HR or employment question that isn’t covered here, please get in touch

The Luck of the Irish?

Here we are, only 5 months away from the Brexit date and, at the time of writing, no agreement on the arrangements for the UK to leave and the possibility of a “No Deal” Brexit still high. It’s small wonder that a number of my SME clients are considering options to set up operations in Ireland in order to continue trading seamlessly from April next year – especially when we read today that Brexit Secretary Dominic Raab is to order his civil servants to start issuing “No Deal” instructions to business.

But operating in a foreign country means following their employment laws. So how does Ireland differ from the UK?

The good news is that the Irish system – unlike many in the EU – is based on the same legal principles and processes as the UK. So it won’t look entirely unfamiliar to businesses and HR professionals. But there are some important differences, summarised below

Key Differences between UK and Irish Employment Law

Area of Law UK Ireland
Minimum Wage Different Levels based on age, and for apprentices Essentially an ‘under 18’ and ‘over 18’ rate although there are specific rates for those on training or in first two years of work after 18.
Working Time 20 minute Rest break entitlement after 6 hours working 15 minute rest break after 4.5 hours or 30 minutes after 6 hours
Pensions Auto enrolment No compulsory
Sick Pay SSP No compulsory
Holidays 5.6 weeks 4 weeks (with different  calculation rules for part-timers)
Zero Hours No guarantee (no work no pay) Guaranteed a minimum number of hours even if none worked (however, very few used – most employers would use “If and When” contracts – same as UK ‘casual’ – with no rights)
Agency Workers Rights only after 12 weeks with a company Rights from Day 1
Employment Status Employee, worker (limb b) or self-employed Employee or self-employed – no ‘intermediate’ worker status
Redundancy Payments Calculated on age and service Calculated on service only
Statutory Notice 1 week per complete year up to max of 12 Different ‘bands’ depending on service. Max 8 weeks after 15 years
Unfair dismissal Requires 2 years’ service Requires 1 years’ service
Working Time Can opt out of 48 hour max week No opt-out
Compensation No limit in discrimination or whistleblowing cases Limit of 2 years pay (discrimination) or 5 years pay (whistleblowing)
Settlement Agreements Can be used as an alternative to tribunal No such concept
Trade Union Right to recognition for collective bargain purposes if specific conditions met No statutory right to recognition
TUPE   More restricted definition of a transfer
Discrimination 9 protected characteristics 9 protected characteristics but some different to UK

·         Gender not Sex

·         Civil Status (= marital status in UK)

·         Family Status (parent of child under 18 – over 18 if disabled)

·         Member of Traveller Community

No: Gender reassignment, or pregnancy as a separate category (covered by gender)

Maternity Leave Pay Up to 52 weeks mat leave, 2 weeks after birth compulsory.

 

Employer must pay Statutory Maternity Pay if conditions are met

Up to 42 weeks mat leave.

Compulsory period of 2 weeks before and 4 weeks after birth.

 

No requirement on employer to pay, state maternity benefits available.

 

As with the UK, there is nothing to stop an employer offering above minimum conditions, but you can’t go below.

Obviously, this is only a general summary – more information is available from the Workplace Relations Commission which is broadly speaking the Irish equivalent of ACAS (although with more powers to inspect employers)

As well as recruiting staff in Ireland, some organisations are considering posting or seconding UK based staff there. At the moment, as both countries are EU members, this isn’t an issue. But in the event of a No Deal Brexit, will this change?

Yes. If the UK is not a member of the EU, or the broader EEA (which it won’t be in a No Deal situation) then UK nationals will be classed as third country nationals and will require a work permit. The good news is that Ireland has a considerably more relaxed approach than the UK – anyone from a third country can apply for a general employment permit unless they are in an excluded category of work (which can be found here).

So, relocation to Ireland is not too difficult in legal terms, although companies will need to think about plenty of other employment and non-employment issues. But – as per the Brexit secretary – now is the time to make your decision.

Important – this post is for general advice and information and neither Ariadne Associates or the author can be held liable if you take action based solely on the contents of it. You should seek professional advice, especially as the situation is changing daily.