“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!

Bart

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)

Image result for victorian servant image copyright free

 

If we took a holiday it would be so nice

Conservative Prime Ministerial hopeful Jeremy Hunt caused a stir this week when he announced that, if elected, he would cancel all Civil Service holidays in August in order to make sure that preparations for a No-Deal Brexit were fully implemented. But can an employer simply just cancel holidays, especially if they have already been authorised and staff may have paid out for a trip away?

It may surprise you, but legally the answer is yes. In fact, in certain sectors (e.g. the NHS or emergency services) it’s not that uncommon – think for example of nurses and doctors having leave cancelled because of a winter flu epidemic.

However, it’s not quite that straightforward. Firstly, there are minimum periods of notice which must be given to cancel someone’s holidays. Unless you have a different written agreement, this is the same length of time as the period of the holiday. So someone who’d booked a fortnight’s leave must be given two weeks’ notice of cancellation.  As the new Prime Minister is only expected to take office a week before the beginning of August, and unless the Civil Service has specific rules, Mr Hunt would not have time to stop someone taking two weeks off at the beginning of August.

Secondly, you need to have a clear and urgent business reason. Preparing for an imminent ‘disorderly’ departure from the EU in 12 weeks would probably fit this description, as might things like a high level of staff sickness, or a major and unexpected change in business. If you don’t have a valid reason, however, you might find yourself facing a claim for constructive dismissal.

Thirdly, cancelling someone’s holiday is not likely to motivate or endear them to your business. So you need to balance the short-term issue against the longer-term impacts.

This post doesn’t cover the issue of whether you are liable to compensate people for losses caused by a cancellation. Most travel insurance policies wouldn’t cover cancellation by the employer, potentially leaving your staff significantly out of pocket. Not being a lawyer, I can’t say whether individuals would have grounds to make a civil claim for their loss (if you are a lawyer reading this please feel free to comment) but if they can you might find yourself exposed to significant liabilities.

So, overall, cancelling holidays is something that can be done, but it is an extreme decision to take and would require extreme circumstances, and a proper evaluation of the pros and cons, before I would suggest you do it. As with so much of employment law, the rule is

“Just because you can doesn’t mean you should”

via GIPHY

 

It was 20 years ago today…

That I launched Ariadne Associates to provide HR help and advice to small organisations. In that time, we’ve supported around 150 small businesses and charities – primarily in the North West of England but sometimes further afield. And to celebrate 20 years in business we’ve got some fantastic birthday deals 

1.  20% off our normal day rate for new and returning clients (subject to T&C below)

If there’s an HR issue that you wanted to tackle (for example setting up contracts, reviewing policies and procedures, making changes in your organisation, or needing some help with recruitment) then now is the time to do it. Visit our Services page for some ways we can help

For a limited time, our day rate will be reduced from £550 to £440 (for charities it will go from £495 to £395) To qualify, simply get in touch using the form at the bottom of this page, and we’ll get back to you to discuss how we can help.

2. Simon’s successful book on what small businesses need to know about Employment Issues for just £4.99 (and only £1.99 on Kindle)

Shortlisted for the CMI Management Book of the Year 2018, Happy Working Relationships has received numerous positive reviews as a plain English guide to Employment Law and People Management.

To order the paperback, visit https://ariadne-associates.co.uk/simons-book/

To order the Kindle version, visit https://www.amazon.co.uk/Happy-Working-Relationships-business-employment-ebook/dp/B071Y6C852

T&Cs

1. To qualify for 20% off our day rate, work must be agreed and committed by 31 July 2019 and must be completed and invoiced by 31 October 2019. Payment must be made within our normal timescales

2. 20% discount applies to a maximum of 3 days’ work.

3. Does not apply to existing clients or work already in progress

4. A returning client is an organisation that we’ve not worked with for over 12 months and which doesn’t currently receive our free employment law updates.

5. Book promotions run until 5th July 2019

lighted happy birthday candles

Photo by rawpixel.com on Pexels.com

 

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