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:

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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 even someone who didn’t even apply could make a complaint to the EHRC, which might then decide to investigate your company.

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.

Roll Over Beethoven

Government Minister Lord Freud got himself in hot water last week when a recording of a Conference Fringe meeting was revealed where he stated that some disabled people were not worth the minimum wage, and suggested that employers could pay them £2 per hour with a state benefit being used to top this up. While most criticised him, there were some who sought to defend his comments, with this Daily Mail article being a particular example. In summary, it makes two points; firstly that the author’s father, who was blind, accepted he should be paid less because he required support to carry out his work – despite the fact that he was a highly rated newspaper columnist; and secondly that “the market” would inevitably value some jobs (by implication those done by people with disabilities) below the current level of the minimum wage.

Taking the second point first, it is quite possible that, if we simply allowed the market to determine wages, some jobs might be paid less than the current minimum wage rate of £6.50 per hour. If Lord Freud and his supporters want to make the case for abolishing the minimum wage, then that’s a perfectly acceptable position to argue (though none of the mainstream political parties seem to support it) – but it does seem to me that dressing up this argument as some form of altruistic help for the disabled is at best disingenous.

What worries me though about the first point though is that it demonstrates how out of touch politicians and media “commentators” are with the modern world of work. Firstly they seem completely unaware of the Access to Work Scheme, which provides  support for those with disabilities in work. To take the example of the blind Mr Utley, these days he wouldn’t require his employers to provide him with a paid secretary to read the newspapers to him, since a) most modern software includes a “read aloud” feature (as well as other accessibility options) b) if he did need special equipment it would be paid for and c) even if he did require a full time support worker his employer would get assistance with the costs. Without making a political point, it seems as a taxpayer that the government spending £500-£1000 providing an employer with special equipment to support an employee with a disability to work  is a more cost-effective solution than subsidising the disabled employee through the benefits system. Even in the case of  severe disability, where the individual requires a full time support worker, the current system (though not perfect) seems a better option.

Secondly,  they assume that a disability means an inability to do anything. No-one (even his political opponents) seriously suggests that David Blunkett was less effective than any other Home Secretary because he was blind. Indeed, rather than paying him less, if Mr Utley Snr really was the “leading Tory thinker of his generation” you’d expect the Telegraph to be paying him top dollar (it’s that thing called the market again) rather than ripping him off. Just imagine how Beethoven would have managed under Lord Freud and his supporters. “I’m sorry Ludwig, I know this symphony is genius but as you’re deaf, we’re only going to give you a third of what we paid Schubert for his inferior composition”.

Brussels backs Brits on Fatties

I’ve blogged before about the nonsense that tabloid (and sometimes more “reputable”) newspapers publish about employment law – for example here and here. So it didn’t surprise me when they cottoned on to the “obesity as a disability” story, particularly as it also allowed them to indulge in their other favourite pastime of bashing “Europe”. The Daily Star took the story to new heights of fantasy with this piece.

Of course, it’s no wonder that many small businesses have concerns about employment law when they read stories like this one. And it provides fuel for those with a political axe to grind. So let’s look at the facts in this case, rather than the fiction.

The reports reflect an opinion expressed by the Advocate General of the EU. Although this is merely an expert legal opinion, his view is usually – but not always – adopted by the European court when it makes a judgment. Updated 18 December 2014 – the European Court decision, which can be found here, does, as expected, broadly follow this, although it removes the reference to Body Mass Index below.

What the Advocate General said was that anyone who is “morbidly obese” (with a Body Mass Index of 40 or more) is not disabled. However there may be certain circumstances where the consequences of this obesity are that the person cannot fully participate in work. In such a situation the individual might be (but isn’t automatically) disabled and therefore governed by equality legislation.

This viewpoint is consistent with current UK case law, which states that obesity is not in itself a disability but it may lead people to suffer from conditions which are a disability.

In this respect, it places obesity on a similar footing to drug or alcohol addiction. Simply being dependent on drugs or alcohol is not a disability. But if someone develops a condition which is a disability (for example becoming HIV positive) as a consequence of their addiction they will be classed as disabled under the Equality Act.

Even if they are disabled, your duty as an employer is to make “reasonable adjustments”. What is reasonable for a small company in rented accommodation is vastly different to what is reasonable in a large employer with their own premises. You’re not necessarily obliged to strengthen floors, provide extra wide chairs or any of the other things that reports have mentioned.

So, as always, don’t panic when you read stories like this. Instead, enjoy this classic “Not the 9 O’Clock News” sketch.

(Thanks are due to Equality & Diversity consultant Anne Tynan, who tweeted about the Daily Star story and Employment Barrister Daniel Barnett whose Employment Law bulletins provide a readable and accurate summary of the Advocate General’s opinion).

(I’m fully aware that the European Court is based in Strasbourg. But the alliterative headline is a tabloid staple, accurate or not)