Tag Archives: sme

Brussels backs Brits on Fatties

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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. Remember that newspapers are interested in juicy headlines, not the cold facts or the detail.

(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)

Zero Hours Contracts – the symptom, not the problem

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Every so often people get into a “moral panic” and become fixated on a “bad thing”, about which “something” must be done. In HR/Employment Law the current “bad thing” is zero hours’ contracts.
These are employment contracts that don’t provided any guarantee to the employee of any number of hours per week. Hours can vary and in some cases the individual may not be required in any particular week – hence the Zero Hours name.
Various politicians have in recent weeks queued up to suggest reforms – from banning “exclusivity clauses” (i.e. ones which prevent an employee on a zero hours contract from working for someone else) to forcing employers to give a guaranteed number of hours after the individual has worked for them for 12 months. As a number of employment lawyers and other commentators have noted, both of these are easy for unscrupulous employers to get round if they want to.
It’s worth remembering that current estimates in the UK of people work under zero hours contracts vary from 600000 to 1.4 million. Out of a total workforce of 30 million, even at the upper end that’s less than 5%. And not all of those are unhappy with the arrangement – some surveys show that the majority who have them are happy to work under a “zero hours” contract.
As is often the case, those who are critical of these contracts are focusing on the symptom not the cause. There are two issues. Firstly, in a labour market during a recession, employers have plenty of staff to choose from so can drive costs down (wages can’t fall below minimum wage, so terms and conditions go instead). Once the economy picks up, individuals will move to more secure employment if they wish and employers will either face constant turnover of staff or have to improve their offering. It’s all about the balance of power in the employment relationship.
And secondly, our expectations as consumers are forcing employers to adopt these more flexible practices. Fancy a book from Amazon for next day delivery? Moan about the fact your train is cancelled because the driver is off sick? Expect not to wait in Costa for your coffee even though 20 of you have turned up at once? Companies don’t have banks of staff hanging around on the “off-chance” that there might be a surge in demand, but our expectation that our order will be fulfilled immediately means they need to be able to call on people at short notice for varying hours.
One very good example of this is a charity I’ve worked with who provide a personal shopper service for the elderly and housebound. They don’t know if Mrs Smith will need her groceries on a Tuesday or a Thursday, or not at all in a particular week. Hence the staff are employed under zero hours contracts by the charity.
Whatever the legal employment framework, “bad” employers will always bend the rules to their advantage and exploit individuals. One of the current mantras in HR is “don’t make rules for the 95% of decent employees based on the bad behaviour of 5%”. The same should apply to the legal restrictions on employers.

Flexible friends…?

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Today (30 June) marks the extension of the right to request flexible working to all employees with more than 26 weeks service. It’s deemed significant enough to feature on the headlines of Radio 4’s flagship Today programme, and to have attracted this slightly hysterical article in the Daily Mail – so what does it mean in practice for small business?

Firstly, up to today, the right to request flexible working was restricted to those with young families or caring responsibilities (e.g. looking after an elderly relative). And to make this request there was a formal process with specified deadlines which both employer and employee to follow.

From today, anyone who’s worked for you for 26 weeks or more can make a request – without having to give you a reason why – and the cumbersome paperwork is no longer required (in reality, very few small employers bothered with the bureaucracy anyway).

The important thing is that it’s a right to ask. It’s not a right to demand. You can legitimately refuse a request if it would add to your business costs, provide a worse service to customers, affect quality or productivity, if you cannot reorganise workloads or recruit additional staff, or if there is not enough work at the time the individual wishes to work. In other words, the same common sense reasons why you wouldn’t make any other change to your business.

However, don’t make your default position “no”. Despite the tabloid nonsense, most people will make a request because they have something going on in their life outside work that is impacting on work. A small adjustment might be all that’s needed to retain and motivate a member of staff. And it’s not “take it or leave it” – you can discuss options with the employee concerned and often come to a solution that works for you and them. Again, in my experience smaller employers are not only willing to try to accommodate requests, but actually find that it can be an advantage in attracting staff from competitors. It’s the big bureaucracies with their fear of “setting a precedent” that are less willing to be flexible.

It’s ironic of course that for years business leaders and employers’ organisations have been calling for workers to be more “flexible and adaptable”. Since employment is a relationship, it’s not unreasonable that some employees might want their employer to be flexible too. But in practice, despite the scaremongers, I’m not expecting that my phone will be in meltdown today as hundreds of employees besiege my clients with flexible working requests!

 

 

 

15 years – Always Innovating, Never Standing Still

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Welcome to the new look Ariadne Associates website. If this is your first visit, please have a look round to find out what we offer. This is the first blog post on the new site – other posts are archived from our old site, and include a range of HR tips for SME such as this one, ones that caused some discussion among the HR community like this and a few miscellaneous work-related musings like this

As June 2014 sees the 15th Anniversary of Ariadne Associates (yes, we were founded in the last century) this post is more reflective and self referential than usual. But looking back over the last 15 years it’s worth recording that we’ve

  • Worked with over 100 companies and charities (more if you include work done as an associate)
  • Kept a core base of clients for over 10 years (in fact, we still work with our first ever client)
  • Issued over 1000 invoices (and got paid for virtually all of them!)
  • Worked in highly regulated environments – an airline, childcare, and social care
  • Worked in arts and media – 2 TV production companies, a theatre, and a video editing company
  • Worked in manufacturing – industrial glass production, metal fabrication and vehicle production, for example
  • Worked with professional services – marketing, venture capital, surveyors and accountants
  • Supported companies at the cutting edge of technology and those who work in a more traditional way
  • Worked with charities, family run firms, joint ventures between pubic and private sectors, partnerships, social enterprises and private limited companies.
  • Helped organisations of widely differing size – our biggest client employed 375 staff while the smallest is just recruiting their first employee.

And what do they all have in common? – people. It doesn’t matter what the organisation actually does, or its environment – their success is determined by having the right people (whether your business defines that as productive, efficient, entrepreneurial or technically competent) and failure by not having the right people (again, whether your business defines that as obstructive, incapable, or simply too many of them). Whatever the sector, people adapt to the culture and rules and the advice we give is tailored to that.

So if you’re looking for support for your business, we’d be more than happy to help – just contact us. And since self-praise is no recommendation, have a look at our Testimonials.

One Bad Apple

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Originally posted May 2014

I’m currently the approved HR adviser for Knowsley Council’s Business Growth scheme, and recently that’s involved me working with a couple of entrepreneurs who are considering taking on their first members of staff.

What’s struck me on meeting them are 3 things

  • They want to be “good” employers – do things legally correctly and behave fairly to their staff
  • They have a perception that employment law is designed to stop them doing things
  • This perception is often based on the fact that they’ve  heard stories of other small businesses that have had problems with an employee and which ended “badly” for the employer (“He was doing X, Y and Z, they couldn’t get rid of him and when they did he took them to a tribunal which cost them ££”)

If you employ 5 or 6 people then having 1 problematic member of staff can be a major management headache – especially if that individual starts quoting apparent “rights” at you.  While it’s often quoted that you should base your management approach on the 95% of staff who work well rather than the 5% who are a problem, it can be difficult to remember this when your time is being taken up by one troublesome person.

So here are some tips to tackle these situations

  • Don’t let things fester – tackle a problem when it first appears. The longer you allow unacceptable behaviour to continue, the more the individual will assume it is ok. This applies whether it’s performance, attitude, time-keeping or any other work area
  • If someone quotes “rights” at you – check it out before responding. Unless they are employment experts, the chances are that they are no more knowledgeable than you, and are twisting something to their own advantage.  Remember that many employment rights are the right to request something without being disadvantaged (e.g. flexible working), not an absolute right in themselves.
  • The law does allow you to dismiss someone provided you have a fair reason (which covers 5 very broad categories) and have followed a fair process (which essentially means giving the individual the chance to give their side of the story before making your decision).

And if you do part company, analyse why things went wrong

  • Did you recruit the person because they were a “friend” of an existing employee, or because you needed someone quickly and the individual “looked ok”. Recruitment shortcuts are one of the commonest causes of problematic employees
  • Did you spend time with them when they started work, ensuring they knew what was expected of them and they understood how your business operated. The time you’d spend doing this will be significantly less than the time you’ll spend managing them when things go wrong

Successful entrepreneurs have things go wrong and learn from their failure. But when it comes to employment too many use one failure as an excuse for not trying again. Remember that one bad apple shouldn’t – and doesn’t have to – impact on the long term success of your business. (As those 70s business gurus The Osmonds put it here)