Category Archives: Employee Relations

Out of Office?

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This article gained some traction over the bank holiday weekend.  From 1st January, workers in France will have a so-called ‘right to disconnect’.  Companies with more than 50 employees will be obliged to draw up a code of conduct, expressly stating when employees are not required to answer their emails.

Now I am all for life work balance.  Equally too I believe in the importance of organisations taking wellbeing at work seriously.  But I am a little less convinced we should  legislate for it.

Legislation and employment policy have something in common.  If you need to write them, sometimes it means you have failed.

Here’s an example.  I heard of a manager who had spent thousands of pounds of his budget introducing a corporate uniform for a back office team that never came face to face with customers of visitors.  When I asked why, I was told that some of the employees in the team weren’t dressing appropriately for work.  So instead of talking to those few people and quickly sorting a problem, a dress code was written and communicated and expensive uniforms purchased and enforced.

Going back to the French example – if people are working late into the night, if people are checking their emails excessively, if people don’t have a healthy work life balance, then this isn’t about formal documents, it’s about your organisation culture.  Someone, somewhere, somehow, has said that this is expected.  Or at the very least tolerated.  Maybe there isn’t enough dialogue about wellbeing and balance in the organisation.  Maybe there aren’t enough resources to do the job properly.  But something is wrong and the starting point for addressing issues like these is rarely more policy, documents or legislation.  Instead these should only ever be a last resort.

We have all worked with one of those email people.  Who sends messages late at night, or at a silly time in the morning, or at the weekends.  Leading to everyone else jumping onto their emails to respond.  And so on.

This stuff spreads and it only takes one person to start it.  The more senior they are, the bigger the problem.

I often used to work in the evenings.  It suited my lifestyle, and I often found that if I went home at 5pm and let the day settle in my mind I’d have ideas or new insights whilst at home.  Sometimes they came in the shower or whilst in bed waiting for sleep.  Let’s face it, no one has their best ideas sitting at a desk in an open plan office.  But I made a conscious choice; I would write emails and leave them in my drafts file, ready to send in the morning, when no one in my team would be disturbed.

What we need isn’t even more written documents or employment policy.  Most companies have already got more than they need of that.

Legislation can help to change attitudes and beliefs.  But it is not a quick route to tackling bigger issues.  The Equal Pay Act tells you so.  More than 40 years on from the legislation, we are still waiting to see enough change is this space.

What we really need in the workplace in simple.

Less policy. More talking.

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The day I turned purple.

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Imagine this if you will. I am in a social situation, chatting to a recently retired business leader.  We get into a discussion about what I do for a living.  It becomes very clear to me very quickly that this man probably reads the Daily Mail.  He is a fully signed up, card carrying, ‘employment rights have gone mad’ type.  Our conversations ranges over how TUPE is a joke as it is too much ‘red tape’, through to employment tribunals shouldn’t exist and people should be employed at will so he could dismiss people if he feels like it.  He really thinks that it is employers who have it tough rather than his employees, whom he admits he pays less than the living wage.  It is worth noting at this point, that this man owns a helicopter. Then, as the conversation progressed, he launched the nuclear strike.  ‘When I ran my business, I never hired women of child bearing age as maternity leave is too expensive and disruptive.’

At this point, I went what can only be described as a funny shade of purple. I was in a situation that required me not to in any way cause him physical injury.  So, as they used to say in the best tradition of News of the World journalism, I made my excuses and left.  His view was so ingrained, so fundamentally entrenched, that I considered a debate would have been simply a waste of my breath.

Here’s the thing. The latest research tells you that these attitudes exist, one of heck of a lot more than we would really like to admit.  See this earlier post from me, and the links within it to the work being done by Maternity Action.  I’ve also heard dozens of women say that they have been asked questions at job interviews about whether they have kids, or are planning to have them.

Questions like these have assumptions built in. That all women want children.  That if they do, they will take a full year of maternity leave.  That covering this leave will be a huge problem.  That when the woman returns from maternity leave, she will want to work part time.  That if she does, flexible working is difficult and other people will want it too and that will set a precedent.  And so on.

Well you know what they say about assumptions.

These are just some of the reasons I welcomed the recently announced and forthcoming Grandparent leave. Because when anyone can take leave to look after a child, such outdated views become redundant.  Assumptions about who will do what and when simply no longer apply.  And men like the one described above have less power to wield through exercising their outdated and biased views.  Changes in law can drive changes in thinking, changes in behaviour, intended or otherwise.  And when they don’t, sometimes they just force the issue.

If you stop hiring people just in case they take leave, then you would never hire anyone. Such views are desperately short term.  Hire the best person for the job, always.  Anyone can get sick, leave, get headhunted, suddenly become a carer, have a change of priorities… the list goes on.  Some of these changes are permanent, and some merely temporary.  Assumptions limit your talent pool which limits your business.

Although on that particular occasion I chose to walk away rather than share my feelings, there are still actions that as HR professionals and individuals we can take. You can chose not to follow my example and challenge these attitudes where you see them – especially if you see them within your organisation.  You can have policies that support more men taking parental leave and shared parental leave. You can embrace grandparental leave when it arrives and do the same (or just offer it now).  You can support the work of #MothersWork2015.

And when it comes to the guy who made me turn purple, and others like him? I’ve always believed that to a large extent, you get the employee relations that you deserve.  There was probably a good reason that he spent so much of his time dealing with grievances and employment tribunal claims: the way that he treated his people.

Aggrieved about grievances

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There are a fair few things in the HR world that have the potential to make me cross, but none more so than the traditional grievance procedure.

Grievance procedures are just not an effective way of solving problems or resolving conflict. They perpetuate an adult child culture within organisations. More importantly, they are divisive. They encourage people to form an opinion, arrive at a position, and stick with it.  The nature of the procedure means that there are only two possible outcomes.  The grievance is upheld or it is not.  The person bringing forward the issue is either right or wrong.  And employment, work, relationships, people, life, just ain’t like that.

The fundamental problem is that the processes we are legally required to follow might keep us out of trouble in the employment tribunal, but they are damaging to the overall employment relationship. In all my career I have rarely seen formal grievances result in positive outcomes.  The actual issue can become lost in the procedure itself.  We get out the policy and start ticking the boxes, and it becomes all to easy to lose sight of the person and the problem behind it.  Even when the issue is potentially serious, it immediately forces the recipient, be it company or line manager, into a defensive place.  They are not looking at whether something is wrong, why this feels like the best cause of action to the person who has put pen to paper.  Instead they are focusing on how to ensure they don’t look like have done something wrong, how to get this off the desk, how to make things look good if this end up going legal.

When mediating, one of the hardest things is moving people from the fixed positions that they have taken. Unfortunately with grievance procedures, the longer they are the more entrenched people become.  I once worked somewhere that had a ten stage grievance procedure.  Ten.  For those employees brave enough to face such a process even with the most severe of work based problems or concerns, how do you ever find a new normal in the future?  Whatever the finding, whatever the outcome, after everything has been investigated and minuted and independently reviewed and appealed and appealed.  Then what?  Practically?

I’ve seen grievance procedures used for ridiculous reasons. I’ve seen grievance procedures used maliciously.  I’ve seen people ignore or pay lip service to that recommended stage at the beginning about speaking to people informally first. I’ve seen people use them as a first resort rather than the very last resort that they really should be.  I accept that there needs to be a way for employees to raise their concerns, and that sometimes, a process is absolutely necessary.  But there are better ways, future relationship supporting ways, for many of the problems that end up in that formal space.

Here’s the thing. Very few things get resolved in writing, with investigations, with formal procedures.  Stuff gets sorted out when people have an actual conversations.  Are open and frank with each other.  When stuff that is lingering and lurking underneath gets brought to the surface.  When things aren’t allowed to fester.  Mediation is one way, although it has its limitations. The other way is HR taking an active role to encourage something less procedural instead.  Encouraging conversations.  Providing line managers with the tools and the support to better manage their people stuff and tackle problems at source.

We are stuck with the legal system and the ACAS code. We are stuck with the need to have a bloody policy.  But we can use it responsibly, and guide people appropriately – in some cases to solutions that might be better for them.  I’ve heard my fair share of line managers and HR folk alike telling people to raise a grievance when an issue is first brought to them.  This just isn’t good enough.  There have been times when I have had to tell someone that this is indeed one of their options, but I am equally prepared to tell them to think carefully about what this really means, and advocate other options first.

Whatever approach you choose to take, every single grievance your organisation receives is saying one thing in writing but  often also saying something else more subtle underneath.  Maybe something about your culture, your line manager capability, how people are feeling, at your place. So for all of my generic criticism of grievance procedures, this is perhaps their unappreciated true value.  If you can listen hard enough, and can look beyond getting through the process.

Banter. The worst possible excuse?

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I said I wasn’t going to write another football inspired post. But the events that unfolded last week in relation to text messages exchanged between former colleagues Malky Mackay and Iain Moody proves me unreliable.

If you missed the issue unfolding in the media, text messages sent by Mackay (while he was manager of Cardiff City) have been recovered. They include the following:

‘Fkn chinkys. Fk it. There’s enough dogs in Cardiff for us all to go around.’ (On the arrival of a player from South Korea)
‘He’s a gay snake’ (About another club’s official)
‘I hope she’s looking after your needs. I bet you’d love a bounce on her falsies’. (Referring to a female agent).

There are others, all of a similar casual discriminatory nature.

These were bad enough on their own. However, shortly after the messages were published by a newspaper, the League Manager’s Association issued a statement that referred to the messages as ‘letting off steam to a friend’ and ‘friendly text message banter’. They have since apologised for the statement, calling it ‘inappropriate’.

Banter is a word that strikes fear into the hearts of many a HR professional. And possibly glee into the hearts of the employment lawyer representing the other side.

Most HR folk have come across a banter defence in their time. That or one of its close cousins. Such as the ‘it was just a bit of fun’ excuse or the ‘it was a private conversation between two people’ alternative.

But scratch the surface of this particular attempt at behaviour justification, and you may well find some other, unpleasant implications underneath.

That the person complaining just doesn’t have a sense of humour.
That there was no harm intended so it doesn’t really matter.
That it’s not all that serious.

We all know that intention is neither here nor there when it comes to harassment or discrimination. That what matters is the impact of the behaviour or the language. It’s not just the purpose but the effect.

Here’s the thing. Banter is never, ever a defence or an excuse for discrimination, bullying or harassment. Not in the employment tribunal, not anywhere.

Saying that you are not a racist, sexist or homophobe, whether to the public via the media or just a panel of three in the ET, when your behaviour or language has already told its own story, will simply not cut it. You can be sure that the ET Judge has heard it all before, once or twice.

I don’t need to get the Equality Act out to check the wording in the clauses either. If you are ever tempted to use banter as an excuse, its dictionary definition is explanation enough. Good humoured. Playful conversation. Light hearted. Mildly teasing. The text messages above are not most reasonable people’s definition of good humour.

Instead of the banter justification, I would instead advocate using the complete pillock defence. As in admitting you have behaved like one. Followed by a grovelling apology.

You can’t undo harassment or bulling once it has taken place. But you can avoid pointless legal expense, or the implication that you just don’t care about equality, by leaving this particular word where it belong. With The Inbetweeners.

banter

Thank you to @the100 for allowing me to reproduce the above image.

Disciplining Employees Doesn’t Work (Shock)

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Apparently, since the ban on term time holidays, there has been a sharp increase in the number of parents being fined for taking their children out of school. According to the government, fewer children are now missing school. I’m not actually sure the data that I have seen is showing that. It is showing lots of fines, which tells me parents are still happy to take their children out of school, only now they are paying for it.

I’d like to see the long term trend for this. Because if the research is correct, the government might not get the impact that they had hoped for. If they’d done their research, or even just read Freakonomics, they would know what happened when Israeli day care nurseries implemented charges for late pick-ups. The intention was to discourage parents from arriving late by introducing a small fine. What actually happened was late collections increased. Significantly. Why? It was now a simple bargain. A transaction. Before, it was about goodwill, not wanting to be the one who kept the teacher late, not wanting your child to be the last one waiting. Now there was a formal, monetary consequence, but one that the parents could obviously live with.

The moral of the story is this: sometimes you end up with unintended consequences. You might just get the exact opposite of what you set out for.

Take discipline at work. If you seek out a definition of its purpose, it will say something about correcting behaviour. Ensuring adherence to rules. Providing frameworks for dealing with people consistently and fairly.

Sanctions and incentives are supposed to influence behaviour. Drive it in one direction or another. It’s the old carrot and stick routine. And discipline is a big, blunt stick.

One of my early HR roles was almost entirely employee relations focused. Investigations, disciplinaries, grievances. That was all I did. Every single day, I would go onto the shop floor, wearing my trusty High Visibility vest, taking with me a stack of white envelopes, each one containing a summons to an investigation meeting or disciplinary hearing. We investigated everything. Disciplined for much. The managers would hand out the envelopes to the lucky recipients. The disciplinary process was designed to change their behaviour. And it did. It made them laugh at the disciplinary procedure. It turned it into first a joke, then a perverse badge of honour. Here comes HR, who has been a naughty boy today?

Unintended consequences. When it came to the nursery pick up, parents tried to be on time for many reasons. When the fine was introduced, it instead became a bargain, a financial transaction. One that could be accommodated. I can be late and pay a small fine. Or for the employees at my former company, I can breach discipline and get a white envelope, attend a meeting or two, and finally a warning that doesn’t actually mean very much at all.

Does the trusty disciplinary policy improve behaviour? Ensure adherence to rules?

Maybe. A little bit. But it does, then why?

The power of the disciplinary procedure rests within one ultimate sanction: dismissal. Only here’s the thing. Organisations do loads of them. And most of the time they don’t result in anything close to that. What they really result in is a letter than remains on your file for three months, six months, nine. Telling you not to do it again, or else…..

We might take further action, up to and including dismissal, in accordance with our Disciplinary Policy.

People behave well for a whole range of reasons. Some of it is tied up with their personality. Some of it is because of peer pressure, fear of consequences, moral imperitives, social incentives. Consider why more people don’t drink and drive. Is it because it is now considered morally unacceptable in our society, or is it because getting caught means certainly losing your licence?

People also behave badly at work for all sorts of reasons. And we need a better way of dealing with it. Because the unintended consequences of disciplinary procedures are negative impacts upon relationships, culture, behaviour. If the disciplinary process worked, you would only every discipline someone once. There would be no repeat behaviour. You would never see the same employee around that meeting table again, never go past the first written warning. But most HR folk will tell you, that isn’t our reality.

For all my criticisms, the truth is we are pretty much stuck with the legal framework. Legislation, ACAS codes, case law. Even if we accept that the traditional model of discipline doesn’t work, it is firmly embedded within the system. And the system requires us to have a policy, to follow it, to tick all of the procedural boxes. And there are consequences for failing to do so. It’s called the Employment Tribunal.

Our options for change are limited. The best thing that we can do in HR is skill our managers to have good, timely conversations instead, about performance, attitude, behaviour. Save your disciplinary process for when it really needed, for the most serious of issues. The best way to improve our approach to the disciplinary process, is use it less.

Unintended Consequences?

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It’s another blog post on ET fees. Sorry about that. But hey, I guess it gives regular readers a break from my musings on employee engagement.

A couple of weeks ago I was listening to a webinar when someone posed the question as to whether the introduction of employment tribunal fees would encourage employees to join trade unions. Whether this might be an unintended consequence of the recent legislation. Something the government hadn’t banked on.

We all know the numbers. A slow, steady and almost continuous decline of trade union membership in the UK since the late 1970s. Increasingly older members. Increasingly public sector based.

But now some of the big unions have put their money where their mouth is and are paying employment tribunals fees for those members who wish to bring a claim against their employer. We are yet to understand how many of those claims that are still being brought are being supported by trade unions. And only time will tell if the recent fall of a cliff claim issue will continue.

But even if some employees join a trade union because they are going to pay an ET fee, is this really the sort of membership that a trade union wants or needs; is it the sort of membership that will stem the tide?

Joining a trade union on the off chance something goes wrong in the future is treating the union more like an insurance policy than an organisation of workers, united in common cause to improve the working conditions of their members. For those members, it’s not about the politics, not about class, or the aims of the collective. The willingness to put the common good over your own personal needs is the essence of trade unionism. Bringing an ET claim is, big equal pay class action type stuff aside, often more of an individual rights thing than an organised labour, collective bargaining thing.

Over the years I have seen plenty of people who have joined a union when they have had a problem. When they have been placed at risk of redundancy, want to raise a grievance, are facing a disciplinary. Never interested before, they suddenly become staunch advocates of workers’ rights, join the union and demand the every attention of its officials for their one month worth of fees. And feel hard done to if the union doesn’t fall over themselves to support them. The payment of a claim fee on behalf of members may just encourage a little more of this behaviour. But do these new members stay members, after the problem is resolved?

Here’s the thing. On a practical level, most people don’t expect things to go wrong. They don’t join a company, all fresh faced and excited on day one, and think about joining the company recognised trade union just in case it doesn’t work out, just in case in a few years hence a problem arises and they need some help with the sticky stuff. If trade union membership is your thing, you will join. If it wasn’t before then it probably won’t be on your induction day either.

Right now, employers can play a harder game than they have been able to do for years. Two years’ service to bring an ET claim. The fees themselves, and now the ACAS hurdle to jump on top. It all adds up to hard work and hard cash on the part of the claimant.

But is this going to be the thing that sends employees back to the unions in their masses? The thing that encourages membership from those currently under represented groups? I’m not convinced. And those that do join, might just be of the short term, uncommitted to the cause variety, and not the sort of member that the unions really need if they are to turn the tide of decline and engage with a whole new cohort.

Only time will tell whether unintended consequences will be.

Hoo-ha, hullabaloo and zero-hours contracts

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So the zero-hours contract debate rumbles on. It’s the hoo-ha of the week, month, whenever. It is turning into an availability cascade.

An availability cascade is, according to that font of everything that is Wikipedia, a self-reinforcing cycle that explains the development of certain kinds of collective belief. The collective belief in this case being that zero-hours contracts are a very bad thing. Or according to Ed Miliband, an ‘epidemic’. When an availability cascade gets going, the idea gains rapid currency and an upward spiral begins. We hear and hear through the media, and we begin to accept that thing we hear as reality, when it may instead be mere belief or opinion, or just nothing much at all. The more people that believe it, the more people that believe it. Everyone wants to agree with all of the people that believe it. Critical thinking or analysis of the data disappears amongst the hullabaloo. And these beliefs live on, even when evidence to the contrary is presented.

Zero-hours contracts are much criticised. The Scottish Affairs Committee recently published a report described them as unbalanced, leaving the employee ‘in fear of dismissal, denied access to due rights of employment, and in some cases, earning less than the minimum wage’. Strong stuff indeed. Although the report appears to be heavy on the views from the trade union side of the fence, which might be ever so slightly relevant.

Taking the research over the rhetoric for a moment, there are around a million people on zero-hours contracts in the UK. Less than a quarter of employers report that they engage employees on these contracts and for those that do, it amounts to about 19% of their workforce (CIPD Research Report, November 2013).

Labour indicate that they plan to amend the law on zero-hours contracts, to among other things, ensure that employees have clarity from their employer about their employment status, have the right to request a contract with a minimum amount of work, be free to work for other employers and have an automatic right to a fixed hours contract after 12 months. Some of these suggestions might be easy to implement. Some of them could have very unintended consequences. What would stop the unscrupulous employer, given the two year’s service requirement for bringing an ET claim, simply dismissing the employer at the 12 month mark, for example?

Going back to the CIPD research for a moment, 60% of zero-hours workers already can work for other employers. Over half don’t want to work more hours than they are already receiving. Others espouse the benefits of zero-hours contracts.

Often in both life and organisations, there will be the few that cause issues for the many. There will always be an employer that breaks the law. There will always be employers that will exploit, discriminate, manipulate, or plain don’t care about employee engagement and all of the fluffy shiny stuff and just sweat their assets. This is happening with zero-hour contracts as it is with other aspects of the employment relationship. But legislation is not always the answer. There has been legislation on equal pay for over 30 years, and that is still a problem for the solving.

Before we decide if legislation the answer to the zero-hours contract issue, we must first ask if it is an issue at all; are we trying to solve a real problem? Some evidence of poor practice does not necessarily mean we need something new on the statute books. Because what we have here might be an availability cascade. It might be the latest bandwagon. Or it might be a union friendly sound bite.

Public opinion and hoo-has are a poor reason to make law. And the heat of the debate is the wrong time to make it. We don’t need a reactionary piece of legislation that will be hard to enforce and do little but generate case law. Mind you, maybe it might go some way to addressing the drop in employment tribunal cases.

Assuming anyone can afford to bring the claim of course.

A miner’s story

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A slightly different blog from me, this one. When you work in generalist HR, there is often one of the specialisms that is your thing over others. The discipline that you enjoy the most. Mine was employee relations and one of my particular areas of interest is the miners’ strike. I have always planned to make it a subject of a PhD, or maybe even a book, only other things keep getting in the way. I did however start collecting stories towards it.

This month, it is the 30th anniversary of the miners’ strike. When one of the UK’s biggest trade unions entered into a year long battle with the government over the future of the coal industry. There is plenty to be said about the miners’ strike, and to say that opinions on it are divided even today is an understatement. I’m not proposing to give my opinions here. But I thought I would share a few of the stories that I have collected.

This miner’s story is from the so-called Battle of Orgreave. The name that was given to a pitched battle at the British Steel coking works which lasted several days. The National Union of Mineworkers considered Orgreave crucial to the strike; if coal could be stopped going into the plant, it could be a turning point for them.

The NUM organised a mass picket. MI5 had infiltrated the union and the police were prepared. Thousands of miners. Thousands of police. To call it a battle is a fair description. Here is one miner’s story.

I was 20 when I went to Orgreave. On the first day, we were told by the union to go on the back roads. The police were stopping cars on the main roads near the site and turning them around if they thought they were miners. We went the long way round, but no one stopped us. A few hundred people were there. We went right up to the gates and tried to stop the lorries going in and out. It was uneventful.

I went back the next day, this time in a minibus. We left from my pit, and went straight down the motorway this time. We parked about half a mile away from the plant, and walked over the fields. We couldn’t get near the place. We ended up being herded into a field. I remember that it was hot and dusty. You could smell sweat. I’m a big guy but I was genuinely scared. Nothing stopped me back then. I worked down the pit and played rugby league at the weekend. I was fit and strong, but I will admit I was intimidated. I’ve been at football games when it has kicked off, I’ve worked the door in pubs when there have been fights, but never has there been anything like Orgreave. It was hostile.

The police were lined up in front of us. There were thousands of them. They were pounding on their riot shields. The noise was relentless, deafening. Police were on horseback. You see that a lot now, but that was new back then. And then it all started. Charging, pushing, shoving, shouting. The police were charging in and dragging people off. Miners were being hit with batons right in front of me. Blood, sweat, noise. I have never seen anything like it. Police on horses swinging with their batons, colliding with people randomly. They hit people that were running away from behind. It felt like it went on for hours. One of my mates got into a fight with a copper. The copper hit him on the head with his baton, and split his head right open. There was blood everywhere. I dragged the copper off him, and got my mate away. I’d better not say how I got him away from the police. We got back over the fields to the minibus where we waited for everyone else to get back.

I never went back. All I wanted to do was fight for my job. I didn’t want that.

95 miners were charged with offences after the battle. Many were put on trial, but the trials collapsed when it became clear that evidence from the police was unreliable. Allegations have been made that police fabricated their evidence. South Yorkshire Police paid out £425,000 in compensation to 39 miners in out of court settlements. No officers have ever been disciplined. Questions are still being asked today about the actions of the police, and there is still a campaign running calling for Justice for Orgreave and seeking a public enquiry. South Yorkshire police has referred itself to the Independent Police Commission for review.

This is just a story from someone who was there.