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.

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.

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.

A solution to the Sick Pay conundrum?

There’s been much in the press over the last few months about the fact that the UK’s Statutory Sick Pay (SSP) scheme – of around £95 per week – is one of the lowest in the developed world, and as a result acts as a disincentive for individuals to self-isolate during the current pandemic. More recently, there have been suggestions that the Government is considering paying a £500 grant to individuals to encourage them to self-isolate when required to do so (although latest reports claim the government has decided against this approach).

In addition, SSP is only payable to employees – not the self-employed or contractors – and only if they earn more than £120 per week. As a result, the lowest paid are also excluded.

Some of the concern about a change to the rules is from the Treasury around costs. But it needs to be remembered that:

  • Employers currently bear the cost of SSP (there are some temporary exceptions for Covid)
  • The minimum earnings figure dates back to when employers could claim some of the cost of SSP back. This was abolished several years ago and consequently is a meaningless anachronism.
  • There are several other cumbersome and pointless rules around SSP that again, date back to the days it was subsidised by central government. (if you are interested, google concepts such as “waiting days” and “linked periods”)

So, here’s a suggestion of how the government could improve SSP generally, encourage people to self-isolate and limit the long-term costs (though there would be a short term increase).

1. Set the SSP rate to £327 (a 37.5 hour week at the current minimum wage of £8.72 per hour), or 80% of weekly wages if normal salary is less than £327 – 80% being the furlough rate the government seem happy to pay. This could rise annually in line with minimum wage rates or simply be reviewed periodically.

2. Employers still pay the £95 per week contribution, which would rise on an annual basis as it currently does.

3. The scheme would cover all employees, regardless of earnings – no minimum level – and people classed as “workers”.

4. If costs were an issue, the length of time SSP would be paid could be reduced from the current 28 weeks to say 20 weeks.

5. The self-employed would be able to claim an equivalent payment from the DWP/HMRC based on evidence of their earnings.

6. The same rules on evidence (self-certificate for up to 7 days, doctor’s note thereafter) would still apply.

People earning £400 per week or more would obviously see a fall when off sick, but considerably less than currently. And it needs to be remembered that many employers offer more generous sick pay schemes anyway, which would not be affected.

Am interested to know any potential downsides that employers, HR professionals or policy makers can spot – either as short-term response to Covid or as a longer-term solution (I accept that I’ve picked £327 as an illustration and the rate could be higher – or lower).

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