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.

Relocation, Relocation, Relocation

One query that I receive regularly from my SME clients is how to handle the people aspects of moving business location. Below are some of the common issues and some suggestions on how to deal with them.

a) Can staff refuse to move – even if they have a mobility clause in their contract?

In a word, yes. What many employers don’t realise is that relocation is legally a form of redundancy, since redundancy is defined in law as no longer requiring a particular job role at a specific location. So, you need to comply with the normal rules on consultation (in practice, since companies rarely move at 24 hours’ notice, you will probably have been consulting with staff about the move for some time anyway).

In most cases you will be offering employees an alternative – the same job on the same pay, just in a different location. But in a redundancy situation the question is whether it is ‘suitable’.

If you are relocating from Liverpool to Leeds, the extra travel time and costs, or the need to move house, may mean that it’s not suitable for many employees. Even if they have a mobility clause requiring them to work from ‘company locations’, suitability will still depend on a lot of factors.

Even a small move, which doesn’t appear to have the same issues, can still fall foul of this suitability issue. A move from Manchester City Centre to Salford Quays (roughly 3 miles) probably wouldn’t inconvenience many staff. But an employee with primary school age children, who lives in a commuter town outside Manchester, for example Buxton, may need to get an earlier train to get to work on time, causing problems or increased costs with getting children to school, as well as the extra cost of travel across Manchester. It may not be a ‘suitable alternative’ for them.

So, factor in potential redundancy costs when planning a business relocation – while most of your staff will not have a problem, there may be some who do.

b) Do we have to pay relocation expenses and if so for how long?

There’s no legal requirement to. You may want to, as a gesture of goodwill and to smooth the transition – especially if there are significant extra costs (e.g. having to cross a bridge and pay toll fees). If you do, you can decide or agree how long it is for – some companies will do for between 6 and 12 months.

c) Do we have to replicate facilities e.g. car parking or a canteen?

Only if it is a condition of individuals’ employment that you provide these benefits. If it is then you must do so – or if it isn’t possible provide an equivalent benefit, e.g. a car-parking allowance. If it’s not, then you’re not required to do so.  You might want to take the facilities you currently have into account when choosing your new location.

Remember, moving is disruptive and unsettling for many people – even if they can see the rationale for doing it – and so taking their welfare and personal circumstances into account after a move makes good business sense.

Office buildings as seen from Pall Mall, Liverpool

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

 

You scratch my back…

You scratch my back…

Much has been made of the deal between courier firm Hermes and the GMB union which gives self-employed ‘gig economy’ workers various benefits, such as holiday pay, provided they sign up to follow delivery routes laid down by the company rather than simply set their own delivery route.

One interesting side debate that has occurred among some HR professionals is whether this deal is indicative of the lack of trust that businesses have in employees, and the underlying assumption that employees are inherently less productive than the self-employed unless they are controlled.

It’s an opinion, but one which I think is incorrect. It seems to ignore that work is a complex relationship, with economic, psychological and sociological aspects, which has at its heart a ‘bargain’ – I (the worker) will give you (the business) my time and skill in return for pay, a safe environment and fair treatment by the employer. The power in the relationship usually lies with the employer although there can be times when the employee has the upper hand.

The nature of any bargain is that if I give something up, I expect something in return – otherwise it’s not ‘fair’. So in this situation, the employer giving extra money to individuals wants something back for it – in this case a higher degree of control over the working arrangements. It doesn’t necessarily suggest a lack of trust (the existing system of drivers setting their own routes seems to have worked well enough for both sides) but a recognition that the relationship has subtly changed – and crucially still feels fair to both sides.

Think about it this way. When you are dating someone it’s a fairly loose arrangement, a little like true self-employment. When you’re not with your boy/girlfriend, there’s a certain element of trust (you assume that they are not dating others when you’re not around) but generally you don’t bother too much about what they are doing. When you move in together, the relationship changes –  you give up certain things (the ‘right’ to come and go as you please, watch what you like on TV, decorate your room in a particular way) in return for other benefits. No-one is suggesting that loss of control over the TV remote or letting your partner know where you are implies a lack of trust or an inherent belief that single people have more freedom than the cohabiting. You each make a bargain to give certain things up in return for other things, in order to preserve fairness and balance.

So rather than examine the specifics of the GMB-Hermes deal, look at it in the round – it’s about maintaining equilibrium in the relationship.

(If this all sounds a bit theoretical and airy-fairy, there  are some real practical implications in the world of work –  find out more here)

people walking on street between concrete buildings

Photo by Irina Iriser on Pexels.com

 

Radical or Bureaucratic? Why Labour’s HR proposals may be both

With the current political turmoil in the UK, and the possibility that we may see a change in Government in the near future, this post looks briefly at the HR and employment related announcements made this month by the opposition and consider their effects on the profession. I should stress that I’m not looking at this from a political view – HR professionals (and businesses more widely) have a responsibility to ensure our organisations work within the law, whatever our personal views of a particular piece of legislation.

Five key announcements have been made by Labour’s John McDonnell in recent weeks, in a series of speeches.

1.       Ban ‘zero hours contracts’. I’ve written before that this probably wouldn’t solve the underlying problem – since employers would either go down the route of full casualisation, or offer ‘1 hour per week with the option to do more’ contracts. But from an HR perspective, other than the admin time caused by changing existing contractual arrangements, it might cause businesses to rethink their reason why they use these types of contracts.

2.       Raise the minimum wage to £10 per hour. Not really an issue from an HR perspective, as the current Government have previously said they want to raise the level to £9 per hour, this is more a political argument as to what level the minimum wage should be.

3.       Sectoral Collective Bargaining. Collective agreements still exist on an industry wide basis – not just in the public sector – in some sectors. (I still need to dig out my ‘pink book’ – below – occasionally). But given that union membership is at a low level, doesn’t exist in certain sectors and employers aren’t currently obliged to participate in sectoral bargaining even if they do recognise unions, this seems to be more of a long-term aim than a change that will have an immediate impact on the way companies interact with their staff.

4.       Right to paid leave for victims of domestic abuse. I don’t think anyone would disagree with the principle behind this (and we will shortly have to implement paid leave for child bereavement, so it’s not really an extra administrative task). But I can see a whole host of practical difficulties. Will individuals have to pre-declare to their employer that they are in an abusive relationship? At what point will the right kick in (physical abuse? Mental cruelty?)? What evidence will be needed? This isn’t to make light of a very serious issue, but it is a subject that requires sensitive handling from HR and simply setting it up a ‘procedure’ doesn’t seem to be the way forward. (I haven’t seen a policy document, simply the announcement, so if there is more detail on how this would work I’m happy to link to it).

5.       Compulsory Share Ownership for Employees. This issue attracted the most media attention, primarily because employers with over 250 staff would be ‘forced’ to give employees a percentage of shares (up to 10% over a period of time), allowing them to earn dividends on top of their wages. Employee shareholding is not a new concept, there are many companies that operate schemes that allow some or all employees to be given shares in the organisation. Nor are ‘compulsory’ schemes anything unusual – companies are already required to enrol employees in a pension scheme and to make financial contributions to it, while a chunk of profits is already taken from larger companies in the form of the apprenticeship levy. In one sense the idea is simply a different approach to that taken by the Cameron government, but with the same aim – to allow workers a greater stake in their employer. From an HR perspective –  having spent several years working in an employee owned business – the major immediate challenges will be for learning and development professionals who will need to devise training on the different roles and responsibilities of an employee and a shareholder, and responding to the argument “you can’t sack me, I’m a shareholder” in disciplinary hearings.

And while we shouldn’t undersestimate the possible cultural effects of these proposals, the devil will be in the detail for most of them. Will they go the way of the ill-fated “Statutory Dismissal and Grievance Procedures” introduced – and quickly abolished – in the early 2000s? Or will they become just part of the regulatory environment for HR, like maternity leave or compulsory redundancy consultation? Only time (and the result of the next general election) will tell.

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