Can I sack a rioter?

Posted on August 7, 2024 by Simon Jones • Posted in HR Thoughts, HR Tips for Business and Charities, Work Related Posts • Tagged disciplinary, dismissal, employment law, race, unfair dismissal • Leave a comment

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

Posted on January 29, 2024 by Simon Jones • Posted in HR Thoughts, Work Related Posts • Tagged culture, recruitment, Teamwork, whistleblowing • 1 Comment

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.

Algorithms are not Artificial Intelligence

Posted on April 24, 2023 by Simon Jones • Posted in HR Thoughts, Work Related Posts • Tagged hrm, technology • Leave a comment

Last week, the TUC released a report calling for more worker protection from the use of Artificial Intelligence, the latest technology area to become part of the mainstream. They cited issues that are already causing problems in the workplace. But are they talking about the wrong thing?

In recent years, the use of technology has become more prevalent in the workplace. One area where this is particularly true is in the field of Human Resource Management (HRM). Specifically, the use of algorithms and Artificial Intelligence (AI) has become increasingly popular for making decisions about employees. However, there are important differences between “management by algorithm” and the use of AI in the workplace that employers need to understand.

Management by algorithm refers to the use of pre-programmed rules to make decisions about employees. For example, an algorithm may be used to determine which employees are eligible for a promotion or to decide which employees should be let go during a downsizing. In this approach, the algorithm is designed to apply a specific set of rules to data about employees, without any human intervention.

AI, on the other hand, involves the use of machine learning algorithms that can analyze large amounts of data and learn from it to make better decisions over time. For example, an AI system may be used to analyze employee performance data to identify patterns and make recommendations for how to improve performance.

One of the key differences between management by algorithm and the use of AI is the level of human intervention involved. In management by algorithm, there is little to no human input in the decision-making process. This means that decisions are made purely based on the rules that have been programmed into the algorithm. However, in the use of AI, human input is still required to train the AI system and ensure that it is making accurate decisions.

Another important difference is the level of transparency involved. With management by algorithm, the rules that the algorithm uses to make decisions are often not made public. This can make it difficult for employees to understand why certain decisions were made and can lead to a lack of trust in the system. In contrast, the use of AI is often more transparent, with the system providing insights into how decisions were made and allowing for feedback and adjustments.

Additionally, there is a difference in the potential for bias. Management by algorithm can be more prone to bias because the rules that are programmed into the algorithm can reflect biases that exist in the workplace or society as a whole. However, the use of AI can help to reduce bias by analyzing large amounts of data and identifying patterns that may not be immediately obvious to humans.

In summary, while both management by algorithm and the use of AI involve the use of technology to make decisions about employees, there are important differences between the two. Employers should be aware of these differences and carefully consider the potential benefits and drawbacks of each approach before implementing them in the workplace. By doing so, they can ensure that they are making informed decisions that support their employees and their organization as a whole.

Billion Dollar Brain

Posted on November 7, 2022 by Simon Jones • Posted in HR Thoughts, HR Tips for Business and Charities, Work Related Posts • Tagged dismissal, Elon Musk, employment law, ethics, redundancy, social media • Leave a comment

Over the last few days, Elon Musk’s takeover of Twitter and the ensuing announcement of mass redundancies has been in the news, with mostly negative headlines. Businesses often restructure and reduce staff numbers after a takeover or other major ownership changes, so what (apart from the reputation of Mr Musk) makes this one particularly newsworthy?

Firstly, unlike the recent P&O case where the employer took a deliberate decision to break the law, it’s become clear as more news has emerged that this is more cock-up than conspiracy. Twitter seem to have taken the view that the approach to redundancy in the US would apply throughout the world without any reference to local employment laws or expectations.

In the UK for example, there is a duty to consult staff in advance of redundancies taking effect, with specified time limits when more than 20 redundancies are planned. There’s also a requirement to notify the Government (via the Insolvency Service) of redundancies at the same time. It appears from reports that Twitter announced the mass redundancies and then realised they needed to consult so are hastily trying to put together consultative arrangements. However, consultation must also be meaningful, and it’s hard to see how it could be so in this case if the decisions have already been made.

Secondly, the method of announcing the decision was crude and arbitrary – staff seem to have found out in advance of a formal announcement when they were locked out of work email and social media channels (as another example of the US-centric nature of the exercise, announcements were made at 9am California Time – after the end of the working day for most of Europe and at the end of it for the UK)

Thirdly, it now appears that at least some of the people who were made redundant are actually needed by the company, with a number being asked to return. Having been treated in such a manner, it’s unlikely that many will.

It’s a salutary lesson that even if you are a ‘successful billionaire tech business person’ you can still make major mistakes – and ones that play havoc with people’s lives. It’s little surprise that goodwill towards the company is in short supply.

If you do need to consider redundancy in the UK, and sadly they are a fact of life for many businesses at one time or another, remember these key points.

Think carefully and plan where and when redundancies need to be made, allowing for consultation and other periods – including legal minimum timescales
Remember your legal obligation – in the UK – is to avoid redundancy if you can so give thought to possible redeployment of affected staff
Inform staff face to face if you can, but if that is not possible then an email explaining the situation and the reasons for redundancy
Your decision will have a major impact on people’s lives – bear that in mind and show some empathy for what they are going through. And don’t expect people to always behave ‘rationally’ in the circumstances. (Even if you don’t have any fellow feeling for specific individuals, remember that other staff in your business will be watching how you treat their colleagues and their subsequent goodwill may depend on how you deal with the situation)
Make sure you know what people are entitled to in terms of notice and redundancy pay, and pay them promptly after their employment ends.

The restructuring of Twitter is proving to be something of a case study in how not to reduce your workforce. And while Elon Musk has bottomless pockets which will allow him to buy his way out of employment litigation, most businesses don’t, so make sure you do it right!

Everything stops for tea

Posted on August 12, 2022 by Simon Jones • Posted in HR Thoughts, Work Related Posts • Tagged employee relations, motivation, recognition, reward and compensation • Leave a comment

Over the last couple of days, this tweet – which shows NHS workers being sent a teabag as a ‘reward’ for their efforts – has appeared repeatedly in my timeline. It’s attracted a variety of responses – the majority negative – but some have argued that it’s a ‘nice’ thing to do and a recognition that the opportunity to take a break from the workplace can be beneficial.

https://twitter.com/Xeon4f145d96s1/status/1557701665448349696?s=20&t=3uXk2vvDoflQedGAiRgcXw

As with many things related to people management, context is all important. When staff consider they are underpaid, over-stretched and/or constantly dealing with crisis management, a token, even if well intentioned, can seem insulting. It shows a complete failure to appreciate the situation from the frontline employee perspective. On the other hand, a non-financial gift can often be a more effective form of recognition of effort or achievement in a situation where the individual is already satisfied with their pay or working conditions,

Similarly, making a big song and dance of a small reward can be counter-productive. Telling staff that they are going to receive something for their work raises people’s expectations. To follow this up by providing them with a teabag or cupcake is almost certainly going to be poorly received. In contrast, an unexpected gift – even if small – can be a nice way for a manager to thank their team for their work, and will usually be welcomed.

Managing reward and recognition is a complex mixture of economic, psychological and sociological factors. Get it right and it can result in a well-motivated and productive workforce. Get it wrong and it can have many unwanted consequences. Don’t indulge in gesture management – think through what you are doing and why you are doing it, otherwise you may find your positive intention leads to negative results.

Edit: The Chief Executive of the NHS Trust concerned has recently published a Twitter thread explaining why they took this action, as part of a wider process – you can read it here: https://twitter.com/M_J_Hopkins/status/1558043577569234946?s=20&t=3uXk2vvDoflQedGAiRgcXw. If anything it reiterates the point in my main post – that reward gestures need to be thought about fully.