Category: Workplace disputes and Industrial Tribunals

16
Sep2016

London care workers paid less than minimum wage

After the controversy surrounding Sports Direct in recent months and the company allegedly paying staff below the minimum wage, the care sector was in the headlines this past week.

£3.27 per hour!

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Is Gender Equality really that much of a tall order to achieve?

Many will have seen coverage this week of the most recent reminder that some organisation’s views are still decades behind where they perhaps should be. I refer of course to the news that Nicola Thorp, a receptionist was sent home from work for refusing to wear high-heels under a veiled argument of failure to comply with “appearance guidelines”. I find news like this interesting and frustrating in equal measure. Interesting because it sparks conversation and thought around the issue of gender equality; frustrating because in 2016, we are still having to have conversations and thoughts around whether it is appropriate to insist a female member of staff wear high heels to sit behind the desk of a reception.

Dress Codes

In HR Consultancy, we are often asked to draft bespoke policies for clients which cover acceptable dress code within the organisation and I wholeheartedly agree that it is reasonable for an employer to have such a policy. We take into consideration the industry and sector in which the client operates, their culture and the organisation’s own views when tailoring these policies and the criteria (or guidelines) for the organisation to initiate disciplinary proceedings, should an employee be in breach of the policy. I am pleased to say I have never been asked by a client to compromise my integrity by adding a section to a policy which would only apply to members of a certain gender. As Ms Thorpe stated to the employer, the same would not have been asked of a male employee.

The organisation who enforced this policy have confirmed they are reviewing the matter, but it took someone to complain publicly for them to do it, so any change made is unlikely to be done so, simply because it is the right thing to do.

Moral Issue

Much of the commentary on this topic surrounds the question of whether the dress code was justifiable from a legal perspective. There are cases for both sides on that front. I am more interested in the moral aspect of having a policy such as this in place.

For me, it should be down to the personal choice of the individual whether or not they wish to wear heels. But if the coin is flipped it raises an interesting point. If a male employee was to decide to turn up to work wearing heels for the same role, how would the organisation respond to this?

By enforcing this provision onto female members of staff is there a suggestion that visitors to the building would take issue if the receptionist was not wearing heels? I am surmising somewhat, but to think that people would still hold an expectation such as this in 2016 is frustrating, given all the efforts and initiatives to reduce gender inequality which exist.

Viral News

Another interesting aspect of this is the attention that is being paid to the issue, which can only be a good thing. The petition started by Ms Thorpe to have it made illegal for a company to force a female member of staff to wear high heels now having over 127,000 signatures. The UK media is covering the story and without linking directly to every single article, I haven’t come across one yet that is in support of the employer on this matter. The news has even spread across the Atlantic and so hopefully this can serve as a positive assault on gender inequality in the workplace.

Interesting to me on this note is where PriceWaterhouseCoopers (PwC) fits into the furore, as it was within their offices that the issue arose. They did not employ Ms Thorpe, nor was it their policy that caused the fallout, the policy belonged to Portico who PwC outsourced their reception services to. However, PwC’s name is all over the story and rightly or wrongly they are being referenced multiple times throughout the coverage. This demonstrates just how easily social media can impact an organisation’s reputation, which is another area of great interest to me. I am sure the PwC PR department is working overtime at present (hopefully they all have comfortable footwear on!) to reassert that this was not their policy.

Take a look at this video by Stylist Magazine showing just how tough a few men found it to walk in high heels!

Tribunal Fees to be abolished in Scotland?

Tribunal Fees to be abolished in Scotland?

If you work in the HR or employment law arena then you are unlikely to have missed the news last week that one of the Scottish Government’s pledges for the next Parliamentary year is to abolish Tribunal fees .

These fees were introduced in July 2013 and have been a constant source of debate since; with some saying they are justified through reducing the backlogs of cases through the courts whilst others saying they allow employers to make unlawful decisions and deny access to justice.

What are the plans?

At this stage it is a proposal which stipulates that more will be known once the Scottish Government gains additional information on how powers of this nature will be transferred to Holyrood under the Scottish Bill. The amendments to this particular aspect of employment law could be further reaching than just the removal of fees, with the Scottish Government vowing to increase fairness at work. The timeline itself for when this may be rolled out is therefore also presently unknown.

What will it mean?

Nothing is certain but it would not be too wild a guess to suggest that the number of claims going through the Scottish tribunal courts will rise and the back-logs will begin to take effect again . Access to justice is an important cornerstone of everyone’s Human Rights, however this must be balanced to ensure the judicial system is fit to carry out its purpose and lay down this lawfulness.

It may also mean that England and Wales take up a different position from Scotland on this matter. The Trade Union Unison has been challenging tribunal fees though the English courts and recently hit another stumbling block in their bid to have tribunal fees overturned. Whilst Unison is set to appeal this decision and the UK Government themselves will review the set-up, which may mean a change to fees in England and Wales in the future, at present fees are set to remain there for the time-being.

At Gravitate HR, we work with our clients and their employees to ensure the policies, procedures and practices are in place to minimise the risk of their employment issues ever seeing the inside of a tribunal court. If you would like to find out more information on our services or discuss how Gravitate HR might support your business please call Neil on 0131 243 1379.

The impartiality of HR

The impartiality of HR

In recent times, there has been a movement towards increased team integration of HR staff with managers and employees; it may be there is an open plan office or HR staff may rotate around the different teams. This certainly appeared to be the case at a panel debate I attended during my first week of my CIPD course at Napier University. Three HR professionals from large, well known companies came to talk about perceptions and challenges in HR. One described that HR should be more solutions driven and that HR staff should have an acute understanding of the business and, therefore a strong relationship with the Manager – this was the key to success. However, could this close relationship with the manager and physical proximity to the rest of the team cause problems when employee or HR issues arise? We would argue that a degree of impartiality is essential, for a number of reasons:

  • • An HR professional should seek to maintain a neutral and impartial perspective when assessing a situation. Someone too immersed in the team culture and agenda, may not fully consider the wider implications for the business and may not be able to provide the Manager with a rounded, balanced view. For example, the external perspective we can provide looks across teams and departments and to the business’s wider sector in general.
  • • Fairness in a statutory process. In a smaller company which only has one HR member of staff, it may be that they should not be in every meeting throughout a process, even if simply taking notes or advising on process. For example, we would maintain that wherever possible someone who is involved in an investigation should be different to someone assisting with the disciplinary etc.
  • • Conducting a large scale investigation in a company relating to a type of disciplinary or grievance may require employees and external individuals to reveal discreet details, which they may or may not be comfortable conveying in a recorded meeting. As an outsourced HR company, we feel we provide an appropriate ‘sounding board’ through which to listen to these individuals and allow them to tell their story. It may be that the internal HR staff are implicated or that employees may not feel comfortable exposing themselves to someone from within the organization.
  • • There can also be a debate around whether the HR team should be invited to an employee’s leaving night, birthday etc – how close is too close? We believe there should be a degree of separation, otherwise there is the possibility information may be leaked or opinions or views about members of the team may be compromised or biased. However, we also accept that every company is different and therefore it depends on the culture and the preference of the HR member of staff, whether they feel comfortable attending. And remember where there is alcohol involved – more self control needs to be exercised…from everyone!

In conclusion, different companies have different ways in which HR is integrated into the team; with some it may be the HR individual visits each department once a week or every so often, so the employees can place a face to the name. Overall, we feel a degree of separation should exist for the purpose of impartiality – which we certainly provide.

Therefore, if you would like to enquire further into the impartiality of HR in relation to your business, please give us a call on 0131 225 7458.

Employment Tribunal Statistics – Behind the Figures

Employment Tribunal claims at an all time high

The tribunal statistics have now been released for the year 2009/10 and have revealed some interesting trends. There has been a sharp increase of 56% in the number of employment tribunal receipts to 236,100, which could be explained as a result the economic climate, for example redundancy complaints and being more conscious of rights and receiving the correct pay etc. This employment tribunal figure, in fact, exceeds the number of immigration tribunal receipts since 2007/08, which are consistently high.

How would you describe a typical claimant and their associated workplace?

Firstly, it interested me that in relation to employment tribunals a disproportionate number of small employers are involved, possibly because they do not have the extensive HR / legal resources of larger companies (we can help with this!) In addition, claimants tend to be older, male, come from managerial positions and come from hotel, restaurant and financial sectors. This could be linked to these sectors being more susceptible to different working practises, for example, long hours, shift patterns, commission and third party regulations.

Working Time Regulations – the clock is ticking!

An interesting observation in the tribunal statistics in general is that claims involving a breach of statute are up by 47%. From this, a quarter of these claims involved the working time regulations. This is an area which is currently under review by the European Commission to examine if any areas need updating since it came into effect in 1994. However, the EU trade unions are resistant to such discussions, as they would wish to see no opt out for the 48 working week, a change in the definition on ‘on call time’ and in general strict adherence to the directive. Judging from the number of claims it may allude to employers ‘pushing the barriers’ when it come to break times, the 48 hours week etc. –Gravitate Tip– As for our advice in this matter, we always ensure that an opt out is in place in a contract of employment if the role would be likely to require more than 48 hours of work a week. The employee would then sign and consent to this – therefore opting out in writing.

Unauthorised Deductions – continuing number of claims

Another observation in these statistics revealed that one fifth of breach of statute claims related to unauthorised deductions. This has historically seen a high volume of claims, as back in 2005 it was still among the most common complaints. As it stands, a lawful deduction can only be made if it is covered by statute, ordered by a court or authorised by the employee. –Gravitate Tip– We make a point to include a deductions clause in all our contracts of employment to cover any overpayment in wages, for example.

However, an unlawful deduction can also be accounted by a company reducing an employee’s salary by a ‘quantifiable’ amount, without following a fair consultation process. In some instances, this may result in breach of contract as well, but –Gravitate Tip– the most important thing is to consult with your staff, gain their agreement and explain the business reasons for this. This can be seen in an alternative to redundancy situation when all employees’ wages are lowered – and this is covered by a statutory consultation process.

An employer may also want to reserve the right to deduct from an employee’s wages if, for example, they have paid for training costs, but the employee leaves in the middle or just after completing the course. This can only be deducted under agreement by the employee. –Gravitate Tip– In this situation we would advise putting in place a clear training covenant either under a separate document or as part of the employee’s contract – this would cover the terms of recovering training costs as standard.

Concerned or need advice?

I hope this has given you a few things to keep in mind for protecting your business and avoid it from becoming part of the statistics! If you have any concerns or queries regarding the above or related issues please contact us on 0131 225 7458.

Right to appeal during redundancy?

I read an interesting article this week regarding redundancies and the right to appeal. With the repeal of the statutory dispute resolution procedures in April 2009, there is now, no formal right to appeal during the redundancy process. However, our advice has always been to continue with current disciplinary and grievance procedures, as they go above and beyond the legal requirement.

This may sound like good news, making a redundancy process quicker, however a quick discussion round the office and we see that this may not be the best way to handle redundancies. Read on for our opinion on the right to appeal during redundancy.

Firstly, a redundancy is essentially no different to a ‘normal’ termination, where you are required to go through a number of key steps to avoid making it automatically unfair, offer the right to appeal to a more senior member of management or impartial Director. Therefore it is difficult to understand why due to the repeal of the dispute resolution regulations, that the right to appeal during redundancy has been removed, where all other employment rights apply.

Although an appeal process can lengthen a redundancy process, add more layers and potentially make decision making more bureaucratic, it does have it’s advantages, and bodes well for a fair and transparent process, that ACAS require. It may not be long before ACAS recognise the benefits that an appeal process brings to a redundancy situation, as we may now find, many organisations use this ‘loop-hole’ to their advantage – however could it not be to their disadvantage? Negating the need for an appeal, only heightens the risk for formal legal action. Wouldn’t you rather get any flaws of your redundancy process out in front of an appeal panel, rather than a Board room of lawyers, or even worse in a tribunal? Despite being 100% sure on the business case, there are always going to be pit falls, although often minor, in the selection process or criterion and therefore any employee selected for redundancy should get a chance to put their case forward, if they feel they have not been fully considered or unfairly selected.

In addition to this, having an appeal process in place, can often make the person taking responsibility for the initial redundancy decisions think more carefully about their choices, processes and procedures, should they have to justify their decision making to appeal boards or senior management. It makes the process fairer, transparent and open, as employees feel that they have recourse.

Our advice is always to include the right of appeal in all termination situations, and include this clearly in your policy.

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