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.

No Jab No Care Home Job?

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

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.

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

ET Fees – what should small organisations do?

You’ve probably seen today’s news that the Supreme Court has ruled that the current Employment Tribunal fees system is unlawful, primarily because it denies individuals the ability to exercise the rights granted to them by Parliament. If you run a small business or charity, you may wonder what this means for you. Here are some key tips

  1. Don’t panic – today’s ruling simply restores the legal situation to what it was in 2013.
  2. Treat Employees legally and fairly – you should be doing this anyway, most employers already do. If you’re not sure exactly what you should be doing, my posts here and here may help
  3. If you do get a claim from someone relating to a past dismissal (or other issue), alleging they were unable to make a claim at the time due to the fees, seek advice immediately. 
  4. Don’t believe the hysterical nonsense in the Daily Mail (actually, that’s true of most employment law issues)
  5. See point 2