Tag Archives: employment law

The Mystery Number

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It’s a staple of TV mysteries – the cryptic number that may (or may not) be significant to the plot. For example, ‘119’ in the new series of Twin Peaks; ‘Counting down from 730’ in Buffy or the mysterious number sequence (4,8,15,16, 23, 42) in Lost.

In employment law, we have our own mystery number: 87(4)

To be more precise, it refers to section 87(4) of the Employment Rights Act 1996, and deals with notice periods.

As most employers are aware, if you dismiss an employee, then in the majority of cases they are entitled to a period of notice. That period of notice is the longer of the minimum period laid down in the Employment Rights Act – sometimes known as Statutory Notice – or what is written in the individual’s employment contract.  During the notice period, the individual is entitled to their normal pay.

All pretty straightforward. But, if the individual is unable to work during their notice period, do they receive full pay or the pay that they are entitled to while off sick (Statutory Sick Pay – or in some cases no pay – for example)? This is where our mysterious clause kicks in.

Under 87(4). If someone has a contractual notice period that is 1 week or longer than their period of statutory notice, then the employer can legally pay sick pay rather than normal pay during notice.

So, an employee whose contractual notice is 13 weeks, but whose statutory notice is 8 weeks, would not be entitled to receive their normal pay during notice. But an employee whose contractual notice is 2 months (which is roughly 8.5 weeks) but whose statutory notice is 8 weeks would.  Fair? Not really. Confusing? Yes. The sort of thing that is likely to inadvertently trip up employers? Definitely!

Why does this rule exist? That’s the mystery. While many employment law rules, however arcane or apparently illogical, can be explained by some historic circumstance or rationale, the reason for 87(4) appears to baffle many. Unless of course you know differently (in which case please use the comments section below!)

Dear Deliveroo…

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An open letter to Will Chu, founder of Deliveroo

Dear Mr Chu

I read with interest your recent comments that you’re unable to offer the riders who work for Deliveroo better terms and conditions because to do so would ‘risk the flexibility’ that they enjoy.

I fully understand that entrepreneurs who have a great business idea aren’t always experts in things like marketing, finance or – in this case – managing people. But most of those who make a success of their business get expert advisers to guide them through these issues and ensure that they support their business aims in a legal and effective way.

I can only assume that you haven’t done so when it comes to employment matters, so I’m happy to correct some misapprehensions you seem to have.

Firstly, you suggest that it’s up to the Government rather than your company to define individual employer status. Actually, it’s not. There are a number of long-established legal tests that can be applied to determine whether someone is an employee, a worker, or self-employed. It may be true that 21st century economy needs 21st century legislation – and certainly the Government are looking at this at the moment – but at the moment the existing legislation does seem to be able to deal with most situations, even in the dynamic ‘gig economy’.

Secondly, employment status doesn’t prevent you offering flexible working arrangements or work patterns.  I’d have thought the data you collect on ordering times for takeaway meals would allow you to identify regular peaks and troughs in demand and schedule your labour requirements accordingly. Using a bank of casual labour, paid through the payroll, would allow you to offer sick pay, holidays and pensions to your regular core workers and supplement these at peak times.  It’s a bit of a 20th century solution, but sometimes old ideas still work effectively

Finally, I have to say that trying to disguise the nature of the working relationship – by using phrases like “invoice” not “timesheet” and “branding guidelines” instead of “uniform” – won’t cut the mustard if you’re challenged. Employment Tribunals will look at what actually happens rather than the words on a page and are pretty adept at seeing through sham arrangements.

I’m always happy to help growing businesses avoid simple employment mistakes and so if you need some further advice please give get in touch, although if you do have 15000 workers I’d probably suggest you need to have some full time in-house expertise. You might find my book helpful though, it sets out clearly and simply what entrepreneurs and small business owners need to know about people management.

Best wishes

Simon

 

The “Headscarf Ban” – what it really means for small businesses

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Today’s ruling by the Court of Justice of the European Union (CJEU) that employers can ban Muslim women from wearing headscarves has attracted a good deal of publicity and comment from both sides of the argument. But it’s important for small business owners to understand the implications of the decision before deciding whether or not they need to do anything at all about this ruling.

First – and probably the most important point – is that banning a Muslim woman from wearing a headscarf is not direct discrimination only if it is part of a policy that all employees are not allowed the “visible wearing of any political, philosophical or religious sign in the workplace”. In other words, such a ban must also prohibit, amongst other things

·         Wearing of a cross by a Christian

·         Wearing of a turban by a Sikh

·         Wearing of a Kippah by a Jewish man

·         Anyone wearing a t-shirt with a religious, atheist or philosophical message (such as this for example)

·         Rastafarians having dreadlocks

I’m sure you can think of others (wearing a poppy in the lead up to Remembrance Day for example?).  

But even if you want to introduce such a ban (and we’ll look at why in a minute) you need to beware that such a policy might be indirect discrimination – in other words a requirement which, although it appears to treat everyone equally, disproportionately affects one particular group. Indirect discrimination is permitted by an employer if it is ‘objectively justified by a legitimate aim”. In the cases before the CJEU, the court decided that a legitimate aim could be that a company wished to convey an image of political, religious or philosophical neutrality to its customers, but that the desire of  acustomer not to be served by an employee wearing a religious symbol (in this case a headscarf) would not be a legitimate reason.

So, having considered all this, and the potential for a legal challenge if you do implement a ban, why would you want to do this anyway? How business critical is it that you convey an image of “neutrality” to your customers? Is it so important that you wish to try and dictate to your staff what they can and can’t wear?  What happens if someone is wearing a headscarf as fashion accessory or for hairloss after chemotherapy, not for any religious reason? How do you distinguish?  As we saw last year with the “High Heels” issue, imposing arbitrary and unjustifiable dress codes can lead to a wealth of damaging bad publicity for the companies involved.

And we haven’t even considered the issue of whether this ruling will be binding on the UK after we leave the EU (given that a claim now would probably take more than 2 years to reach the Supreme Court) – I’ll leave that one  for legal bloggers and commentators.

As always, remember the two golden rules of Employment Law for small business

1.       Don’t believe anything you read about Employment rules in the Daily Mail

2.       Just because you can, doesn’t mean you should.

Note: Like everyone else commenting today, I’ve based this post not on a reading of the full legal judgment (which is not available at the time of writing) but on the CJEU press release, which can be found here. Should the full judgment contain anything different, I’ll update this post.

Time to Drop Discipline?

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In HR, we love to update our terms. After all, we even renamed ourselves “Human Resources” because “Personnel” sounded a bit old fashioned. And the names of things we do is forever changing – we don’t recruit, we acquire talent; we don’t induct new employees, we onboard them; we don’t train them, we develop them; and while we once did appraisals we now do performance reviews.

Now some of these are actually sensible and reflect a different mindset for the modern workplace – others are however just an attempt to sound hip and trendy. But one term persists – and to my mind it is the one that should have been cast into the dustbin of HR history many years ago.

I refer of course to Discipline –  a word that the Oxford Dictionary defines as “the practice of training people to obey rules or a code of behaviour, using punishment to correct disobedience”. Surely no word harks back more to the outdated command and control management style that goes back to FW Taylor and the pre-war years? So why do we – and indeed other professionals in the area such as ACAS – persist with the term?

It may be because the same term is used in the US, since the UK tends to follow American terminology about a decade later. Or it may be that we’re all closet Taylorists, believing that staff will attempt to get away with anything without a good dose of corrective sanctions. Or even because it allows HR people to get involved in something that sounds quasi-judicial and stop line managers from getting it “wrong”.

I’m intrigued to know – why do we still use Discipline? And what term should we replace it with? (A final warning for anyone who suggests “Inappropriate Employee Behaviour Modification Procedure”!)

Culture eats “Banning things” for Breakfast

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Today, the Women and Equalities Committee of the House of Commons has published a report outlining the urgent need to reform the law on pregnancy discrimination, including the need for a “German style system” (a phrase which as unfortunate echoes of the “Australian style points system” on immigration) to make it harder to make women redundant during pregnancy or maternity leave.

The report is laudable in its aims and timely in its publication but (a little like Karl Marx) it draws the wrong conclusions from its analysis. It’s reported major conclusion is the lazy politician’s “We don’t like something – let’s ban it”.

UK employment law is absolutely explicit on the issue of pregnancy. It is automatically unfair to dismiss a female employee if the reason is because she is pregnant, has given birth recently, is breastfeeding or is on maternity leave. Women have an absolute right to return either to their own job or one of the same status, terms and conditions after a period of maternity leave. And in a redundancy situation, women on maternity go to the top of the queue in terms of redeployment (probably the only situation where employers not only can, but must, positively discriminate).

Where the system does let women down is that, if an employer does flout or ignore the law, the Employment Tribunal system has been priced beyond reach for most women (in fact most employees of either sex) to seek redress – allowing bad employers to continue to behave in this way. To be fair, this is something that the report does recognise. Reforming the tribunal fees system so that employees could access justice would be a quick and easy win (and also benefit good employers as I suggested here).

Much, much more important than that though, is a need for a change in business culture. Instead of seeing pregnant women as a “problem” we should take at a positive approach to the situation. We talk a lot in HR about things like retaining talented employees, flexible working and workforce development. It’s time we started putting some of that into practice. And if we want to encourage women back into the workforce, we need to be positive about making sure that fathers are involved in childcare, utilising things like the already existing Shared Parental Leave rules. And while we shouldn’t fail to recognise that – especially in a small business – losing a key employee for up to a year can cause problems, it’s not as if babies are a new thing or that we don’t get plenty of warning (and hence time to plan).

Culture change does take time – and businesses can’t solve all society’s issues. But HR can start the process of creating a different business mindset. And until the mindset is changed, changes in the law will not have the desired effect.