Continuing the theme from my last post, I stumbled upon a picture of another employee forced to dress up for work. I don’t think this is quite as bad as forcing Father Christmas to promote Pizzas at road junctions, but it’s not far off.  Love it!

No related posts.

So You Think Your Job’s Bad? Part II originally appeared on Jobsworth by Michael Scutt on 01/12/2011.

Choices, choices

Many employees often suspect they have been unfairly placed in the “departure lounge” when their company decides to restructure. Sometimes it is obvious there has been unfairness, or discrimination, in the process.  On other occasions it’s much harder to prove even if suspected and the recent case of Dabson v David Cover & Sons Ltd doesn’t help employees much.  On the other hand, employers will be relieved.

The main requirement for an employer seeking to make redundancies is to conduct a fair selection process.  The old mantra of “Last In First Out” can be problematic these days, so some other method needs to be found.  When a business decides to stop trading in a certain product then it may be fairly easy to say that all employees associated with that product should be made redundant, unless they can be redeployed elsewhere in the business.  Or if a unique role is being removed then the selection of the person carrying out that role is fairly clear cut.  However, what happens when you have ten people in a team and the employer decides it needs to reduce the size to five persons. How does an employer choose which employees to select?

The answer is to have a selection process using objective criteria. It’s not foolproof and how an employer scores the employee can be criticised.  For instance in De Belin v Eversheds the EAT held that it was wrong for an employer to artificially favour a woman on maternity leave in a selection when that had the effect of selecting a male colleague for redundancy.   There is still room for an employee to claim that they were unfairly scored against it.  Employees often claim that the manager scoring them either didn’t know them well enough to make a judgment or bore some grudge or were in some way biased against them. In the case of Mr Dabson, he argued that the manager who scored him did so unfairly and acted improperly in scoring him as he did. There had been a history of friction between the Claimant and the line manager.  On the facts as reported in the caser the final decision does look harsh on the employee.

However, the EAT held that the employer had acted reasonably and repeated previous law to the effect that it is only in a case where there is obvious mistake or an absence of good faith that the scores should be scrutinised.  Those will probably be exceptional circumstances and it makes it very difficult for an employee to challenge in these circumstances.  If employees want to run this type of argument they will need to gather their evidence together   as soon as they can.  Employers can’t relax completely though.  Challenges will still arise but provided an employer can justify their decision and show they have followed a fair and reasonable decision making process they should avoid an adverse finding at Tribunal, which isn’t to say that grievances won’t continue to be issued or letter of claim sent.

This decision suggests that employees don’t have things all their own way, despite what is often said.

Related posts:

1. How Should Employers Select Employees for Redundancy?
2. Redundancy – know your rights!
3. Consultation on Redundancy

Redundancy Selection: Now Harder for Employees to Challenge? originally appeared on Jobsworth by Michael Scutt on 22/06/2011.

Tomorrow I am chairing the SBK Legal and Strategic Guide to Workforce Restructuring.  It’s an all day conference with some very interesting speakers and covering a wide range of topics.  Click here for details.

There will be presentations on how to vary contracts of employment, how to adjust pensions, a review of the government’s planned employment law review, how to maintain a positive working relationship with Unions, as well as a session on “Realising redundancy savings: abiding by the rules to avoid a later backlash”.    The law on redundancy and procedure is particularly interesting to me and I will be especially looking forward to that session..

In the meantime my answer to the title question, pending tomorrow’s conference is: “with care”.  Many appeals and Unfair Dismissal claims arise from employees who claim they have been unfairly selected for redundancy.  How should employers who have identified the need to reduce headcount go about it?

Remember that roles are made redundant, not people.  If it looks like a person has been selected for redundancy not because of the role they do but because of who they are, a complaint may be sure to follow. The maximum compensatory sum that a Claimant can be awarded by an Employment Tribunal is £68,400, plus a “basic award” based on length of service and age, currently £400 per week of service. However a person who is chosen for redundancy because of a discriminatory reason, aka a “protected characteristic” under the Equality Act 2010 may be able to bring a claim that has no cap.

In cases where a whole team or desk is being closed, or a layer of management is being stripped out, it can be much harder to argue unfair selection.  It’s really only where there are, say, ten people performing a role and the employer wants to reduce that number to five, that selection processes need to be utilised to make sure the process is fair.

Selection criteria need to be as objective as possible – not always an easy task for an HR department tasked with drafting them – and must avoid any discriminatory factors.  For instance, LIFO (Last In First Out) whilst being objective may also discriminate against employees on grounds of age, because the newest people may be the youngest, although clearly not in every case.  Similarly, relying on attendance records may be unfair on disabled people if they have more time off sick. To minimise the risk of challenges disability-related absences should be factored out of the equation for redundancy selection purposes. Absence from work because of pregnancy or maternity related reasons should also be ignored, for obvious reasons.

In a sales team a good objective measurement might be the number of sales completed, but that is not always foolproof: an aggrieved employee might argue that they were given the worst accounts to maintain or they were hindered in some other way.  Having said that it can be very difficult for an employee to make such an argument stick.

Regular appraisals properly conducted also can assist in the redundancy selection process, although I have my doubts about “performance reviews”.  In many cases they just serve to de-motivate employees, but they do provide a historical record of how the employee has been working over a period of time and not just a snapshot at the point of termination.

What employers should try and avoid, if at all possible, is subjective criteria – soft skills are very hard to measure and has potential for an employee to claim that the person undertaking the assessment was either biased against them (their line manager for instance) or did not know them well enough to carry out an effective assessment (because the assessor was not their line manager).

As someone who regularly advises employees on redundancy selection issues, I would urge employers to try and be as objective as possible when making selection decisions.  Seek volunteers as well, because then there is likely to be less chance of issues over selection arising.

It’s a minefield, but one that can be negotiated with proper preparation and forethought. Remember the Scout’s old motto: Be Prepared!

I don’t give advice (legal or otherwise) through this blog, but if you need help with any of the above issues please do contact me at Dale Langley & Co at michaelscutt@dalelangley.co.uk.

Related posts:

1. Redundancy Selection: Now Harder for Employees to Challenge?
2. Redundancy – know your rights!
3. Redundancy Revisited

How Should Employers Select Employees for Redundancy? originally appeared on Jobsworth by Michael Scutt on 22/03/2011.

First day back from the festive break and The Times, which must be short of contributors at the moment, rehashes the old argument about employees and their lawyers holding poor innocent small businesses to ransom.

Yesterday’s edition contained an opinion piece from Helen Giles,  HR Director of a business called Broadway which apparently provides services to homeless people.  Her theme?  “Stop legal parasites feeding on small business”(*) This morning the story made it onto the Today programme on Radio 4 and a much more useful discussion, chaired by Evan Davis.

It’s fairly standard stuff which has been heard many times: employers held to ransom by speculative employees and their grasping legal advisers, invariably acting on a “no win no fee” basis.  Ms Giles’ argument is that employees have too many rights and it is impossible for small businesses and charities to address poorly performing employees for fear of facing an unfair dismissal or discrimination claim. She relates how, for instance, at a dinner she attended with other HR directors

“they both agreed that however much effort was put into managing an organisation well in human terms, some staff will stick in a claim because they know it’s likely to be lucrative”

and

“two-thirds of claims are settled out of court … often because the costs of fighting, irrespective of the weakness of the employee’s case, are prohibitive”.

Later in her article she writes

“The employee is very often supported by lawyers who have no intention of arguing a flimsy case in court but who know how to sabre rattle and hold their nerve until the employer settles on the eve of a hearing”.  She advises that if you “Google ‘employment law’ you will find endless numbers of websites of these parasitical creatures”.

It’s all fairly tedious and there is no easier target than a Claimant lawyer.  It reminded me of the (long ago) days when I used to do some criminal law.  Politicians, newspapers, ordinary people and, sometimes, clients were always keen on tougher sentences for offenders other than themselves, their partner or child.  If Ms Giles has the misfortune to fall out with her employers I assume she will not be googling for her nearest parasite, sorry well qualified legal adviser.

Are Employers and Employees legal rights well balanced?

She overlooks the underlying reality of the situation which is that employees face a tough decision in challenging their employers: the employee relies on the employer to pay their mortgage and bills. This is what I think Clive Howard of Russell Jones and Walker meant when referring to there not being a level playing field between employer and employee. Raising a grievance rarely improves anyone’s career prospects and for an employee to walking out claiming constructive dismissal is highly risky.  Despite the plethora of laws, especially in the area of discrimination, that allegedly  make it impossible for managers to manage, very few discrimination claims succeed at Tribunal.

But, having said all this, there is something in what she writes.  ETs do take too long to deal with cases and some employees undoubtedly use unfair dismissal and discrimination claims to bring employers to the negotiating table.  I wrote about this last November in the Law Donut blog. If you want to reduce the number of speculative  claims then introduce “cost shifting” at the end of the case or, to put it another way, get the loser to pay (this power is already available to ETs in cases where one party has acted unreasonably, but Tribunals remain reluctant to use it).

Ms Giles suggests something along these lines (I think) but rather complicates matters by calling for an “initial assessment” (by whom?) of a claimant’s “prospects”. If a Claimant was at risk of having to pay the employer’s legal costs if their claim failed it would certainly sort the wheat from the chaff, as would requiring claimants to pay a fee to issue their claims.  That would stop the serial litigants in their tracks and would also be cheaper than jailing them, as Ms Giles suggests.

However, introducing costs shifting would further encourage the no win no fee brigade (and thus prompt more anguished headlines from the same people who criticise claimants pursuing their legal rights at the moment) who would then try and flog Claimants “After the Event” insurance policies and thus make the funding of employment litigation as complicated as it has become in personal injury cases.  Following Lord Justice Jackson’s report into civil litigation costs and the ongoing government review, it may not be possible for a winning Claimant to recover the cost of the ATE premium from the loser in future, but we will have to await the government’s review of civil litigation to see what comes of this.

In my blog post on Law Donut (above) I suggested that the ET system be abolished and amalgamated with the Court Service as a means of addressing these problems and, probably, saving the state money. Somewhat radical maybe but employment law is increasingly complicated and a world away from the National Industrial Relations Court and the original Industrial Tribunals of the early 1970s. As @ljanstis reminded me, the administration of the Courts and Tribunals Services is to be merged in April, so full merger of all practice and procedure is  probably not that off the wall.

Judges in Courts would be more robust over awarding costs when appropriate and it would also end the difficult jurisdictional issues that can arise in some cases.  It would probably suit employers more than employees, especially if the three month deadline for issuing proceedings remained.

What do you think?

What we need is a sensible debate in this country over employment law, rights and procedures. sadly, Ms Giles undermines the sensible underlying points she makes through the use of sensationalist language which may get a good headline but doesn’t assist the real issues at all.

(*) Sadly it’s behind the paywall so I can’t link to it.

PS Thanks to @Bleak_Flat for bringing the article to my attention in the first place.

No related posts.

Parasites and Legal Rights originally appeared on Jobsworth by Michael Scutt on 05/01/2011.

There May be Trouble Ahead ...

Hooray! Christmas looms ever larger on the horizon and we even have some (slightly premature) snow to put us in the mood.  The annual season of eating, drinking, feeling sick and, yes, the Office Party, will soon be upon us. Employers could end up with a nasty hangover if they’re not careful.

I wonder if in these times of austerity there will be a temptation to party like it’s 1999? Maybe, and according to Personnel Today, employers could be placing themselves at risk by not putting in place a policy setting out what is acceptable behaviour at the Christmas party.

Apparently two-thirds of employers don’t have any such policy and 7% of those employers they did survey revealed that they had suffered a problem at the last Christmas bash. The risks to employers arise from claims by other employees offended by over-exuberant behaviour, but also from discrimination, harassment and bullying.

For a useful article on how to draft a “Party Policy” have a read of this.

We usually see one or two clients each year who have got into trouble having over-indulged too much. What employers and employees must remember is that the office party is still a work event and work rules (and employment laws apply).

At the time of the last World Cup I wrote about the potential risk of allowing staff to watch football matches, which might have the effect of excluding those employees (probably mainly women) who weren’t interested, thus leading to resentment.  You might think that an office party would suit everyone, but almost inevitably it will involve alcohol and some people, for example, Muslims might feel excluded if the only option is a trip to the local pub where everyone else gets plastered.

More fundamentally, religious minorities might object to the office celebrating Christmas but not their particular religious festivals.

There is merit in having a behaviour policy because then everyone knows where they stand and provided the policy is implemented consistently it makes it hard for any one person to say they have been treated unfairly.  Having said that, I do slightly struggle with the idea of the employer having to set out basic rules of social engagement to its staff, and it risks treating them like children and being viewed like, heaven forbid, a Jobsworth!

Related posts:

1. Beware Festive Cheer (or what not to do at the Office Christmas Party)
2. What Should Employers do About Third Party Harassment: Equality Act 2010 #4

Employers Watch Out: It’s Office Party Time! originally appeared on Jobsworth by Michael Scutt on 30/11/2010.

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. UK Banks Facing Rising Lawsuits over Stress? Really?
3. Stress at work

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

In a bit of a departure from normal practice here I am uploading a copy of a presentation I gave at the City Business Library today. It may be a bit cryptic if you weren’t there to hear it and please contact me if you require further assistance or explanation.  You can find it at my Slideshare site, which is here;

http://www.slideshare.net/michaelscutt/contracts-of-employment-201009f

Related posts:

1. Contracts of Employment: what you need to know
2. Harmonising contracts under TUPE
3. What Makes a Good Employment Law Story?

Contracts of Employment – what you need to know originally appeared on Jobsworth by Michael Scutt on 20/10/2009.