Culture eats “Banning things” for Breakfast

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.

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!

When something unfair can be fair

Many small employers – and indeed employees – struggle with the concept of “fair dismissal”. In a way it’s not surprising, since fair in employment law terms means something different to fair in ordinary language. I’ve discussed before exactly what it means here and here, but when dismissal is combined with the strange legal term “some other substantial reason” it’s not surprising that people’s heads begin to spin.

Thankfully, we have a great example today of a real-life case where two of these legal situations apply – and it’s a situation I’ve encountered several times with clients and is always fraught with difficulty.

The company did sub-contracted work for a much bigger organisation. As part of one contract they had an onsite manager.  The client wasn’t happy with the performance of the contract and demanded that the company bring in a new manager. The company asked for time for the existing manager to try to improve things but the client was insistent.

The company then had a problem. They had an employee who had no job, and despite their efforts they did not have an alternative role for her that matched her skills and status. They did offer her a job on lower pay which she turned down. She wasn’t redundant however, as her job still existed, and because they had never discussed performance issues with her, the company had no grounds to dismiss her for this reason. Indeed, until the client raised it, they weren’t aware that there were problems with the contract.

They decided that they had no other option but to dismiss, using the “some other substantial reason” as their justification. The client did not want the employee on their premises and the company didn’t have another job for her. Quite understandably, the employee claimed unfair dismissal. She lost however because the tribunal ruled that the company had both a fair reason (she could not work on the contract she was employed on because the client didn’t want her) and they had followed a fair process (looking for alternative jobs). The tribunal did recognise that the situation was “unfair” to the employee in the normal sense of the word – and many would sympathise with her position –  but her employer had behaved fairly and legally.

It’s worth remembering that such cases are often good and easy to understand examples for small employers – and they also help to banish the myth that “tribunals are biased in favour of employees”.

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.