Tag Archives: employment law

“Why won’t Rangers sign a Catholic?”

“Why won’t Rangers sign a Catholic?”

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Is it possible to have a blanket ban on employing people from a particular country? That question came up last week when it was reported that Indian owned franchises in Cricket’s summer tournament The Hundred would not recruit Pakistani players due to the ongoing political tensions between the two countries.

Under the Equality Act, it is not allowed to discriminate on ‘colour, nationality, or ethnic or national origins”. And as UK employers, the different teams are bound by UK employment law. So how can the alleged ban be legal?

UK employment law protects anyone eligible to work in the UK – this includes not only UK citizens, but citizens of Ireland, anyone with ‘indefinite leave to remain’ and anyone working here with a valid work visa. Sportspeople in the UK are employees like anyone else and are normally here on International Sportsperson Visas.

When it comes to recruitment, an employer is not obliged to consider candidates who are not eligible to work in the UK and they are not required to advertise in any specific location. So in that sense, cricket teams in the UK are not required to consider players from any country. However, The Hundred operates on an ‘auction’ system where players apply centrally and the different teams bid for the players they want. It’s been reported that a number of Pakistani players have put their names into the auction, so they are in effect job applicants who need to be treated in the same way as applicants from Australia, South Africa, West Indies etc.

In practice, this is all a theoretical argument. It is very difficult, if not impossible, for someone who is not eligible to work in the UK to make a claim via an Employment Tribunal. And even if they could, it would be open to a team to defend an individual claim on the basis that the player didn’t have the right skill set (they were a batter and the team wanted a fast bowler for example). If the player in question was a British player of Pakistani heritage, or someone with dual British/Pakistani nationality, the issue might be different however.

It’s a very unwise step to have a blanket ban on people of a specific nationality and doubly so for it to become widely known. Even if the teams in question can get away with it legally (which they probably can) there is the ethical question – especially in a sport which has faced serious accusations of racism in recent years. As the old saying goes “it takes 20 years to build a reputation and 5 minutes to destroy it”.

For younger readers, the title of this post refers to a blanket ban that Rangers FC in Glasgow had against employing Roman Catholics or signing Catholic players – a policy which was only ended, to some controversy, as recently as 1989.

A cricket match in progress featuring players in purple and black uniforms on a grassy field, with a stadium filled with spectators in the background.

No, it’s not OK to call your boss a “Dickhead”

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The media had a field day last week with a story that an Employment Tribunal had ruled that being sacked for calling your boss a “Dickhead” was grounds for Unfair Dismissal. As always when it comes to the reporting of Employment Law stories, the old adage “never let the truth get in the way of a good story” applies here.

The case involved a Ms Herbert, who was sacked from the small construction business she worked for by its Operations Director.  He was also Ms Herbert’s brother in law, and was married to the Managing Director who was therefore her sister in law.

Most of the facts were disputed – included the date Ms Herbert was dismissed. The only consistent fact that everyone agreed on was that at some point in the meeting where she alleged she was dismissed, she used the words “fucking dickheads” to describe the Operations Director and his wife.

The reason she won her case was that the company made a complete pig’s ear of dealing with the situation. In fact pretty much everything they could have got wrong they did.

  • When the ‘dickheads’ comment was made, the Operations Director told Ms Herbert to ‘get out’ and that she was ‘sacked’
  • The company then tried to construct a case about Ms Herbert’s misconduct and hold a later disciplinary hearing on a series of alleged serious breaches of company rules. She refused to participate in this process on the basis that the company had already sacked her.
  • The context in which the comment was made was not enough to justify a gross misconduct dismissal – and therefore she was entitled to be paid notice. In fact their company policy said that use of ‘insulting and abusive language’ would only result in dismissal if a prior warning had been given.

There are three important takeaways for small businesses from this case – none of which are around what Ms Herbert said

  • Employment Tribunals deal with the facts in each individual case. This decision does not set a precedent in any way, and especially it doesn’t give a green light for employees to abuse their bosses without penalty.
  • To make a dismissal fair, you have to have a fair reason and follow a fair procedure. The judge did conclude that Ms Herbert’s behaviour could well have been a fair reason but the Operations Directors ‘spur of the moment’ decision was not in any way a fair process.
  • The case shows starkly how long the tribunal process is taking – the events of this case happened in 2022 but the decision was not published until last week. Regardless of who is right or wrong, having a claim that takes 3 years to resolve is not a sensible way to resolve employment disputes (and as this article shows, this is not an untypical timescale)

Rearranging The Desks

Rearranging The Desks

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One of the things that concerns many small businesses in relation to employment law is the issue of constructive dismissal. A perception has grown up around the concept that if a business makes any change that an employee doesn’t like, they can resign and take the company to a tribunal. This perception isn’t helped by stories like this from The Guardian, especially its clickbait headline “Senior staff can sue if given ‘low status’ desk, UK tribunal rules”

Of course, the headline isn’t true and the story is far more complex. But it’s a useful one to look at since it covers a lot of issues that a small business might face when dealing with a change.

Firstly, what is constructive dismissal? It’s the idea that an employer makes a significant detrimental change to an employee’s terms, conditions or position that the employee can consider that they have effectively been dismissed and resign on the spot. It is in many ways the reverse of gross misconduct, which is where an employee does something so serious that the employer considers that dismissal without notice is the appropriate solution.

In some situations, constructive dismissal can be triggered by the ‘final straw’ in a series of changes. That’s in part what happened in this case.

The claimant, a Mr Walker, was a manager of a branch of an estate agents. He was moved without discussion to a smaller branch and given – again without discussion – a revised pay package. To achieve a similar level of salary he would have to hit more demanding targets. A couple of months later, he was required to return to his original branch in what was termed a joint managerial role, but which required him to sit with the majority of staff in the main office rather than at the manager’s desk. He considered this to be a demotion and considered that it would be difficult and embarrassing to have to sit among staff he had formerly managed. When he raised this with his Director, the director dismissed his concerns with a comment that he couldn’t believe someone of Mr Walker’s age would make a fuss about a desk (there was some dispute about whether the Director swore in this conversation). Mr Walker considered this the final straw, and resigned claiming constructive dismissal.

There are three key learning points from this for small businesses:

  • If you are making a change which has a negative impact on someone – even if they are in a senior role – discuss and (where possible) agree the way forward. Don’t just impose it.
  • Consider your company culture. In some businesses, where people sit would not be an issue. But if status is conveyed by office location, type of desk or anything else, taking that away will clearly indicate to people in the organisation that the individual’s status has been downgraded.
  • The Estate Agents had an external HR adviser who gave advice on how to handle the situation. The advice was not necessarily incorrect but was based on partial information (what the Director thought was important for her to know) and as result made the situation worse. Always tell your HR adviser (for my clients that means me ) the full story, even the bits that you don’t think are valid.

Constructive dismissal is actually very rare (in a 40 year HR career I’ve dealt with 2 cases and I don’t think that I am unusual in that). But you can make it rarer still by following the steps above.

A businessman in a suit sitting in an office, looking concerned, with colleagues working at desks in the background.
The Law Trumps Soundbites

The Law Trumps Soundbites

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There’s been a lot of noise over the last few weeks, mainly as a result of actions of the new American president, about Diversity, Equality and Inclusion (DEI) programmes within business. It’s been compounded by some American business leaders talking about the need for more “masculine energy” in business (whatever that term means).

Even though the cultural and business contexts of the UK and the US are different, this hasn’t stopped much chatter amongst business commentators here about the future of DEI. So it’s probably worth going over what the situation is here, especially from the perspective of small business.

Firstly, outside of some public sector organisations and some very large corporates – often subsidiaries of US companies –  very few companies in the UK have DEI programmes in the US style.

What we do have in the UK though is the Equality Act 2010.  This hasn’t changed, isn’t going to change in the next 5 years at least, and sets down the basis under which all UK businesses have to act.

This Act makes it explicit that you cannot discriminate on the basis of a one of 9 “protected characteristics” (with some very limited exceptions). Every single person in the UK possesses at least two of these protected characteristics (most have more) so it covers everyone.

Discrimination can result in unlimited fines – and unlike most aspects of employment law, claims can be made against individuals as well as businesses.

Discrimination applies equally to so-called ‘positive discrimination’ – for example deliberately favouring a female candidate in preference to a man (because you think your business needs more female staff) is as forbidden as the reverse. In fact there have been recent employment tribunal cases that have reaffirmed this.

What the law does allow – on an entirely voluntary basis – is ‘positive action’.  You might for example run an engineering company where all your engineers are of a certain age group and you are struggling to find younger candidates interested in the job. Positive action might be running taster days for young engineers, or attending careers fairs aimed at school leavers or recent graduates. It doesn’t mean that a younger person is going to get the job ahead of an older person, simply that you are creating opportunities for younger people to meet your requirements. Which, if you are struggling for staff, is a business benefit. Some larger companies might run training schemes targeted specifically at under-represented groups – again this is perfectly permissible. None of this is new – firms have been doing this since the 1980s.

Regardless of your own views on DEI, or what you have read on social media or heard on the news, the situation in the UK hasn’t changed. There is no such thing as a ‘diversity hire’ in the UK, nor can you start advertising for ‘young men’ or rejecting candidates because of their race or religion.

Small Earthquake in Chile: Not Many Dead

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So, finally, after much speculation, press leaks, anguished cries from business and reports of government in-fighting, we finally have the new government’s Employment Rights Bill.

And, to be honest, it’s a bit of an anti-climax. There are lots of minor tinkering with existing rules, many of which have little uptake, or extending existing rights to people who don’t currently qualify. Some of the key proposals are:

  • The right to claim unfair dismissal, although it will become formally a day-one right, will in practical terms be reduced from requiring 2 years’ service to 9 months’ service.
  • The right to statutory sick pay will be available to all employees from day one regardless of their earnings. Currently it’s not payable until day 4 of sickness and only for those who earn more than £123 a week  (for context that means anyone who does more than 11 hours per week at adult minimum wage already qualifies)
  • Rights to parental leave. paternity leave and bereavement leave from day 1 of employment rather than requiring a minimum qualifying period. As parental leave in particular is unpaid, hardly anyone uses it currently so extending it is unlikely to see a massive increase in time off.
  • Strengthening and extending existing  unfair dismissal protections for women on maternity for up to 6 months after they return.
  • Flexible working requests must be accepted unless the Employer has a valid business reason to say no. Currently employers must justify saying no with a valid business reason so in practice it’s unlikely to make much of a difference.
  • Rules on zero hours will be changed so that workers  have the right to a contract based on the average number of hours over the preceding 12 weeks (but can choose to stay on zero hours if they prefer). Those of you who’ve read my recent employment law update (sign up here if you don’t already get it) will know that this had already brought into law by the previous Conservative government but not actually implemented.
  • Abolishing some of the previous Government’s restrictive rules on trade unions and strike action – which were rarely used by employers and were not particularly relevant to small business.
  • There will be a lot of consultation on various other aspects of employment law, including
    • The ‘Right to Switch off’  – which it appears may now just be a code of practice rather than a legal requirement.
    • Clarifying the law around employment status – an area which appears very nerdy but is key to businesses that use sub-contractors, casual workers and ‘gig economy’ working practices
    • Considering how equal pay legislation can be extended to cover race as well as sex

Most importantly, the changes themselves are unlikely to be implemented until at least 2026 – which means that businesses will have plenty of time to prepare for them.

After all the hype, it appears we are left with simply a continuation of the approach to employment law of the last 14 years – minor tinkering with particular rules that give some additional benefits to employees but at minimal discomfort to business.

(As an aside, if you’re wondering about the post title you’ll find the origin here)