Tag Archives: dismissal

Billion Dollar Brain

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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.

  1. Think carefully and plan where and when redundancies need to be made, allowing for consultation and other periods – including legal minimum timescales
  2. Remember your legal obligation – in the UK – is to avoid redundancy if you can so give thought to possible redeployment of affected staff
  3. 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
  4. 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)
  5. 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!

HR’s Donald Trump moment?

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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?

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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.

No Jab No Care Home Job?

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There’s been much in the media today about the fact that the Government is to ‘require’ care workers to have the Covid-19 vaccination in order to continue working in front line support. Those who don’t will either have to be moved into work that doesn’t bring them into contact with residents or dismissed.

While the employment law implications are one which may worry business owners, the decision throws up a whole series of HR issues for that particular sector – ones which may also have implications for a lot of employers in the broader health/social care sector (which includes many of my charity clients)

Firstly, it’s important to remember that no vaccination is required by law in the UK.  The often quoted example that ‘doctors and nurses must have a Hepatitis B vaccination’ is based on clinical guidance issued by Public Health England which is then adopted by individual NHS and other healthcare employers as part of their health and safety policy/risk assessment process.  

If the government introduce a specific law (which would take some time to go through the parliamentary processes) or regulation (which wouldn’t) then sacking someone who fails to comply would be fair in law as a ‘statutory restriction’. (Update 21/6/21 – the change will be introduced by regulation, effective October 2021) An employer must still go through a fair process – exploring redeployment options before taking a decision to dismiss – and a dismissal would be with contractual or statutory notice.

If however they introduce the new rules as (prescriptive) guidance then it will be down to the individual employer to build them into their health and safety policy and recruitment guidelines.  While employers would be expected to follow them, it would be very difficult to justify dismissing someone (or not recruit someone) using the statutory restriction argument. Employers would probably have to rely on the catch all “some other substantial reason”, again ensuring that they dismiss with appropriate notice.

In addition to the risk of potential unfair dismissal claims, the sector already faces serious staff shortages with some estimates that there are 100000+ vacancies at the moment. The prospect of sacking otherwise competent staff at a time when it is difficult to recruit, and reducing further the number of prospective job candidates, is likely to cause further problems.

Care businesses will also need to communicate the changes clearly and effectively to staff; take time to collect appropriate vaccination records; perhaps give time off for people to be vaccinated; and ensure that staff understand the consequences of not being vaccinated. This is particularly important for the small number of people who are advised not to have the vaccination because of a health condition, which may mean there are also disability discrimination issues to be addressed.

None of this is to say that the aim of having all care home workers vaccinated (or indeed health and social care staff more generally) is a bad one. But we have seen too many instances in recent years of rushed new regulations being implemented without proper thought-through consequences, and subsequently having to be amended or repealed, for employers to be confident that another hastily announced policy will be any more effective.

Woolly Bully

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Workplace bullying is back in the news in the UK, so I thought it might be helpful to outline the position for small businesses.

Bullying isn’t defined in employment law, although harassment is (section 26 of the Equality Act) – harassment being ‘unwanted conduct that…violates someone’s dignity…or creates an intimidating, hostile, degrading, humiliating or offensive environment” for an individual (my emphasis). Although this definition of harassment relates specifically to the protected characteristics under the Act, it does form the basis for many organisations’ policies on conduct for all staff.

In practice, bullying is often considered to be harassment by someone in a position of power over the individual – such as a boss.

Bullying can take many forms, but some I’ve encountered in my working life include

  • Giving impossible targets for a subordinate  – setting someone up to fail
  • Making public derogatory comments about a more junior member of staff, either when they are present or to other team members in their absence
  • Shouting, swearing or other verbally aggressive behaviour.
  • Micromanaging an individual, picking up every slight error
  • Treating an individual differently (for example enforcing applying a strict lunchbreak when others are allowed to take as long as they like).

It’s important to remember that both the Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so “I didn’t mean it” is not an excuse for unacceptable behaviour, although it may be a mitigation for any penalty given (something I have discussed before).

Other excuses that won’t wash include “I just have high standards and expect everyone to conform to them” (you can have high standards without being aggressive towards your subordinates) “X is not up to the job” (performance management is about being supportive and agreeing clear targets) or “I’m just a woman operating in a man’s world, so I need to show I’m strong and decisive” (a poor culture doesn’t excuse your bad behaviour)

Of course, this doesn’t mean automatic dismissal for someone found to be bullying their subordinates – an employer is expected to make a reasonable decision considering all the circumstances of the situation. So a manager who hadn’t realised the effect their actions were having on their team members might be given a warning. It’s for you to decide. But you also need to consider the impact that not dealing with a bully will have on, not just on the individual who has raised the concern but on the rest of your workforce.

Bullying allegations can be difficult for small businesses to deal with, especially if the person accused is one of your key managers. But failing to act can lead to more negative consequences.