Babylon makes the rules

34 years ago, a Post Office Graduate Trainee (let’s call him Simon) was sent to produce a management report on ‘why are there so few black posties in Liverpool?’*  This was only a few years after the 1981 riots, and public sector organisations and large employers were being encouraged to take action on Equal Opportunities, specifically on race at that time. The Commission for Racial Equality had produced a new code of practice on recruitment and the Post Office had then incorporated it into a new set of rules that had to be followed.

Despite the fact that the rules had been in place for almost 2 years, Liverpool, unlike some other areas, had not seen any change at all in its employee profile, which was particularly odd since the majority of the City’s black community lived within a mile or so of the main sorting office.

When I got to the Liverpool office and sat down with the recruitment team, it appeared they were following all relevant processes correctly. Staff had been trained in interviewing and there were full ‘audit trails’ from advert to appointment. There was a definite lack of enthusiasm among line managers, who found the new processes slow and bureaucratic (even by Post Office standards) at a time when they were being particularly pressured about postal performance, but they accepted that the rules were ones they had to follow. The problem, everyone agreed at the office, was that “we don’t discriminate but they just don’t apply.”

Being young and keen, and fired up with the righteous zeal of someone who’d had a Rock Against Racism badge as a teenager and owned albums by the Tom Robinson Band and Linton Kwesi Johnson, I decided to try to find out why this was. So I arranged an interview with an organisation called South Liverpool Personnel, an employment agency set up after the riots to promote job opportunities to people in Liverpool 8.

They very kindly spent an hour or so answering my naïve questions about what the Post Office did and what it could do around its recruitment processes. But the answer to the key question of why people weren’t applying was both simple and devastating. The problem was that the Post Office was seen as part of the system – there were too many people in the community who had experienced overt or covert racism at the hands of key public institutions in the city and there was a complete lack of trust as a result. Moreover, there was no sense in which the Post Office was trying to show it had changed – the black community would not go to it until the organisation made an effort to go to them.

I completed my report; got a pat on the back from the Graduate Trainee co-ordinator and was thanked by the Head of Personnel in Liverpool, who said he’d consider my recommendations ‘very seriously’. When I returned to work permanently in Liverpool, about 18 months later, I found that one recommendation had been implemented – vacancies were notified to South Liverpool Personnel at the same time as they were sent to Job Centres. The idea of trying to communicate and connect with the local community, or understand their concerns, hadn’t been taken up.

The point of this post is not to have a pop at the Post Office, it’s a reminder to the mostly white HR profession that if we are serious about challenging years of ingrained prejudice it won’t be solved by changing a few procedures, running a few unconscious bias courses and doing a bit more “ethnic monitoring”. Unless we look at radical changes to the culture of our organisations, listen to what different communities are saying and act on that – and are prepared to make this a long term project, not the current flavour of the month – in 34 years’ time people are likely to be still having the same conversation.

*The proper title was something like “A review of recruitment and Equal Opportunities in the Liverpool Head Post Office area”, but you get the point.

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

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

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.

Shared Parental Leave – Don’t Make a Drama out of a Non-Crisis

It seems that everyone in the HR and Employment Law world in the UK is getting into a bit of a tizz about Shared Parental Leave, which comes into force after Easter. “Does anyone understand Shared Parental Leave?” asked a CIPD blog recently, while employment lawyers are busy falling over themselves to offer seminars on the subject, so that employers can avoid “the baby trap” as one described it. Anyone would think that the entire structure of British industry was about to collapse because some fathers may want to take some time off with their newborns.

The concept of Shared Parental Leave is so simple that Employment Minister Jo Swinson could describe it in a tweet “It’s maternity leave shared between two people”. It is also true to say that the regulations themselves are complicated, partially because they use introduce clumsy new phrases like “continuous leave” and “discontinuous leave” and partially because they attempt to cover every single possible scenario. If followed to the letter, they also introduce some overly formal and bureaucratic procedures.

Confusing and bureaucratic regulations are nothing new in HR and employment law. We work within them all the time – and many organisations, especially smaller ones, bypass the letter of the law to get to solutions that work for both the employer and the individual employee (a fact the government recognised when it got rid of most of the bureaucratic rules around Flexible Working requests).

So why the fuss about this one? Setting aside the cynical view that employment lawyers make money from running seminars on new legislation, the resistance comes from the fact that too many people (including a lot in HR) don’t want to change or recognise the fact that the world of work is changing. Many employers are perfectly happy to take the benefits to them of flexibility (zero hour contracts, contracting services to the self-employed, a tacit acceptance of the fact that employees will work late unpaid and continue to respond to emails in the evening) but aren’t willing to accept the same when staff would like it. Couple this with the “HR says No” attitude still too prevalent among many in the profession and the thought of Shared Parental Leave becomes a doomsday scenario.

I’m not naïve, and I’m sure there will be some teething problems with Shared Parental Leave. But – as with every HR problem – constructive dialogue between the parties will usually sort out the situation, while a blind adherence to procedures and process won’t. It also seems likely that demand for Shared Parental Leave will be small at first, giving people a chance to get used to the new system.

One final thought. Around 20 years ago, the Disability Discrimination Act came into force. Then there was much wailing and gnashing of teeth about all the changes that companies would “have” to make and how it would force them to take disabled people they didn’t want to really employ. The high heavens didn’t fall then, and I don’t expect they will do now.

Wheelchairs, Buses and Prams

It’s impossible not to feel sympathy for Doug Paulley, the wheelchair user who was denied access to a bus because the wheelchair space was occupied by a passenger with a pushchair who refused to move. And I’ve no doubt that many will see the court victory by First Bus as evidence that disability rights are pushed to one side when big business comes to call.

But those criticising First Bus (of whom there are many on social media) need to remember one thing. It’s not some highly paid executive, or faceless corporation, who would be responsible for enforcing the ruling, had the court upheld Mr Paulley’s claim. Individual bus drivers are the ones who would have to police the decision, and they are the ones who would have to face the abuse from passengers if they delay the journey while trying to resolve the situation. And what is the driver expected to do if the passenger refuses to move? Physically eject them from the bus? Can you imagine the headlines?

Bus drivers – and others who provide frontline public services – already face a good deal of both verbal and physical abuse from their customers. From an HR and employment perspective, we have a responsibility to protect the health and safety of our employees. That might be a minor “admin” task for those who work in offices but is a big deal if your staff do a more dangerous job.

The real culprit here is not the bus company but society’s attitudes toward the disabled. The whole situation would have probably been avoided, not just if the other passenger had not been selfish but if the rest of the bus passengers had made it clear that her behaviour was socially unacceptable. Passing legislation, and then expecting low-paid frontline employees to implement it, is no substitute for basic good manners or an unselfish attitude.