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

A quiet week

I was sitting at my desk, thinking that this week had been comparatively quiet, but then I started to list a few of the things I’ve done:

·         Advised a client on a recruitment issue, including how to develop what they want and where they might source candidates

·         Worked with a small public sector organisation to review its restructure and recommend some improvements to it

·         Drafted a staff handbook for a growing professional practice

·         Helped a new start-up understand their ‘basic’ HR responsibilities

·         Assisted a client in a hi-tech field to deal with a performance management issue

·         Acting as the adviser for a charity client in a disciplinary issue

·         Dealing with a query about the Apprenticeship levy

·         Writing the script for, and recording a CIPD Level 7 training webinar (not entirely convinced that voiceover artist is a likely career move for me)

·         Finalising the edits for my book (of which more here)

It made me realise that even in the ‘quieter’ periods,  the variety of ‘people’ issues that crop up  in organisations are what makes my work so interesting. So, if your business or organisation needs some HR help, why not get in touch?

 

Newcastle United go down…

Newcastle United hit the headlines for non-footballing reasons last week when they were found to have discriminated on the grounds of disability against one of their former players, Jonas Gutierrez. Apart from its high profile nature, the case has several interesting points for small business which often worry (unnecessarily) about disability issues.

The first thing to remember is that anyone diagnosed with cancer is classed as disabled under the Equality Act – no matter how early in the disease or how “healthy” the individual may appear. It seems that Newcastle either failed to accept this or chose to ignore it.

Secondly – an employer has a duty to make reasonable adjustments to allow a disabled employee to undertake their work. Reasonable is the key word here – it needs to take account of the size of business, nature of the work being done and how practical it is to make the adjustment. An “adjustment” need not be some physical change – it could be that you accept that someone with a disability has their targets or outputs adjusted, or even something as simple as allowing home working if the job can still be done that way. In Newcastle’s case, it was not adjusting the appearance target required to trigger a contract extension, given Gutierrez’ need to attend treatment. (They then compounded this by an act of direct discrimination, by not picking him when he was fit to ensure he couldn’t achieve the appearance target).

Thirdly, the case shows that if you are taken to tribunal – for any reason – it is important to have a clear and convincing argument that would sound reasonable to anyone not involved in the case. The tribunal concluded that senior figures at the football club were “evasive”, “vague” and “lacking in credibility”. Contrary to the view of some employers, tribunal judges aren’t biased in favour of employees but they are generally adept at spotting bulls*t – whether this comes from the individual making the claim or the employer’s witnesses.

As always, the advice is to consider what you can do to help an employee diagnosed with cancer or with any other form of disability; but that can be balanced against what you can realistically do as a business. And if you have made an error, don’t try to defend the indefensible!

5 great ways to manage people better

Today is #SmallBizSaturday – a worldwide day for celebrating and supporting small businesses. Here at Ariadne Associates we support small businesses throughout the year, of course, but today seems a good day to remind small business owners and managers of some of the simple things they can do to get the best from their staff.

  1. Say Thank You (and please). Basic good manners don’t disappear once you start work. If someone does something you have asked them to, say thanks. And particularly acknowledge if they’ve done it well – a great piece of customer service, solving a problem, or identifying a new way to increase sales.
  2. Remember you are dealing with people. You don’t have to be best friends with your staff (in fact you probably shouldn’t) but you should appreciate that they aren’t just automatons. Be aware, and take an interest in, the fact that Betty in accounts is worrying about her son’s A Levels; that Rajesh likes to travel to away matches so doesn’t like doing overtime at the weekend; that Paulina who works behind the counter is doing night classes because she really wants to be an engineer.
  3. Be professional. No-one wants to work for an employer who is slipshod about their pay, doesn’t bother to issue them with a contract or who ignores basic employment law. Pay the same attention to this as you do to sales, marketing, accounts etc. And get specialist advice if you’re not an expert.
  4. Be fair and consistent. This doesn’t necessarily mean do the same thing on every occasion, but it does mean that you should consider everything before making a decision. Don’t allow Phil to take extra holidays just because he’s your star salesperson and then not allow Deidre, who may have an equally good reason, but who isn’t doing so well.
  5. Don’t forget that if someone doesn’t appear to fit into your business, you were the one who recruited them. Learn from what went wrong in a bad hire before you start recruiting again.

Small businesses often can’t beat their bigger rivals in the pay and benefits they can offer. So you have to compete in other ways to attract and retain good people. Making your business a good place to work is a great (and low-cost) way to start. And if you’d like to know more about how you can do this, why not read this next?

What’s wrong with this advert?

There’s been a bit of a furore on social media this afternoon about this (apparently genuine) recruitment advert:

HR professionals will know the answer to the question in the title. Recruitment agencies should, but clearly not all do. But if you’re the owner of a small business, without a great deal of knowledge of employment law, you would expect that retaining an “expert” to assist you with filling a role would ensure that you don’t

a) Contravene the Equality Act. It’s illegal to advertise for someone of a particular sex (with some very clear exceptions) or age, yet this advert visually implies that only young women can be secretaries. As the client, you would be held liable together with the agency if an individual decided to make a claim –  and remember that they could do so without ever having applied, if they could show they were dissuaded by the advert.

b) Send out some very negative messages about your company. The implication that women can only occupy subservient positions to male bosses is hardly likely to attract many good quality candidates, and is the suggestion that errors may result in physical punishment really the impression you want to give of how your company works?

You wouldn’t plan when advertising a job that it would result in you breaking the law or damaging your company’s reputation, yet that’s exactly what has happened here. It doesn’t matter if you or your agency think you are being “witty” by make a reference to a cult movie if your potential candidates (or indeed your customers on a wider basis) find it tasteless and sexist.

Clearly in this case the client were very badly advised by the agency concerned, who themselves seem to lack a basic knowledge of employment law or what’s often referred to as employer branding.  I’m all for doing something original and interesting to set your job advert apart from your competitors, but this isn’t the way to do it. It’s a warning to small businesses to carry out the same checks on the professional advisers you engage as you would do with anyone else you’re entering into business with.

Straw and Rifkind show the problem of managing staff with “second jobs”

There’s been much schadenfreude in the exposure of two former high ranking government ministers, Sir Malcolm Rifkind and Jack Straw, touting themselves for business and offering to sell their “influence” to a fictitious Chinese company. (In the interests of political neutrality one is from the Conservatives, one from Labour).  It’s provoked a debate about whether MPs should be banned from holding second jobs.

MPs aren’t employees. But the same issue of whether an employee can hold a second job is one I am often asked. So what is the situation?

Firstly, you can’t impose a blanket ban on individuals doing work when they aren’t working for you. Individuals have a right to spend their time outside work in whatever way they wish, which includes earning money. However, you do have a right to ensure that they are not doing anything which could damage your business –so you can legitimately prevent them from working for a competitor, or other organisation which might want access to your commercial information (a supplier or customer for example). As with all these things, should matters be challenged by the employee, you’d need to show that there was some clear impact on your business.

You can also prevent an employee from doing other work if it would stop them from working for you. So if someone wants to do an evening job starting at 6 but isn’t due to finish their shift with you till 7, then you can of course also prevent them from doing this.

The third key area is Health and Safety, particularly (and ironically given how much some employers seem to hate them) via the Working Time Regulations. These lay down the rules about the maximum 48 hour working week, rest breaks and time between shifts. If a member of staff works 35 hours a week for you (9 to 5 Mon-Fri say) and then wants to do 20 hours a week in a bar (say a four hour shift Wednesday/Thursday/Friday/Saturday/Sunday) you could try to prevent them from doing so on the grounds that they are working 55 hour weeks possibly without sufficient rest between shifts. Again, if you can show a clear safety risk (they operate machinery for example) it’s easier to do this.

With the advent of flexible working, zero hours contracts (where all parties have pledged to outlaw exclusivity clauses that prevent people from working for someone else), increased numbers of part-time roles and the growing number of “in-work poor” mean that for many employers, their staff may well have more than one job. Managing such situations may become increasingly common.

Be Careful What You Wish For

One of the big fears for the owners and managers of small businesses is that at some point an employee will take them to an Employment Tribunal. Even if they win the case, the time, cost and stress to the owner is high. And even if the employee’s claim is apparently trivial or patently false, the thought of having your employment practices crawled over by a judge is understandably unpleasant. Matters aren’t helped by tabloid tales of companies being hit for huge compensation awards.

So the introduction of tribunal fees in 2013, which has seen a fall in tribunal claims of between 60-70%, has to be good news for small companies. Now at last businesses can get on with running effectively without fear of a discontented ex-employee making a claim against them.

Except…the pendulum may have swung too far. Most small businesses I encounter (and in my line of work that’s a lot) want to be “good” employers, they want to do things legally and properly and aren’t looking to make life as unpleasant as possible for the staff they employ. If they do something “wrong” it’s usually a genuine mistake rather than a deliberate attempt to defraud their employees.

The problem though is that when individuals can’t enforce their rights, it leaves the door open for the unscrupulous employer to ignore the law, safe in the knowledge that no-one will do anything about it. Honest, law abiding businesses that want to do things correctly are the ones that suffer, as this sad tale from the newspapers this weekend shows. The fact that the business owner is a Tory MP adds a little irony but the key point is that here is a responsible person trying to do the best for his business and employees, but is undercut by those operating at the margins – or even outside – the law.

Think about it this way. If you own a car, you pay your car insurance (no doubt moaning, as I do, about the cost of it). You do because it’s the law to have insurance. Yet if there’s no method of enforcement, why should you bother? Hundreds of thousands are estimated to be driving without insurance, taking the chance that they won’t get caught. And if they are – usually if they are involved in an accident – it’s the honest driver who bears the cost through increased premiums. If the premium becomes unaffordable you either give up your car or you drive uninsured too.

I’m not arguing that tribunal fees should be abolished completely (there’s no reason why the taxpayer should bear all the cost when they don’t in any other area of the law), but that the system needs to be rebalanced – for the benefit of decent employers as well as employees.