Category Archives: Employment Law Musings

In praise of the Working Time Regulations 

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clock

 

“You’ll want all day tomorrow, I suppose?” said Scrooge.

“If quite convenient, sir.”

“It’s not convenient,” said Scrooge, “and it’s not fair. If I was to stop you half a crown for it, you’d think yourself ill-used, I’ll be bound?”

The clerk smiled faintly.

“And yet,” said Scrooge, “you don’t think me ill-used, when I pay a day’s wages for no work.”

The clerk observed it was only once a year.

“A poor excuse for picking a man’s pocket every twenty-fifth of December!” said Scrooge.

How ironic it seems to me that we are hearing about the potential of reduced rights for workers at Christmas time. Reports are circulating that post Brexit, the Working Time Regulations will be an early target for change or even repeal. The gutter press would have us believe that this is about reducing that great enemy of the economy; red tape.  That it is about taking back control of our laws, reducing the power of those meddling European judges.  It was even suggested by one ‘newspaper’ that the removal of the maximum 48-hour working week was a victory for all those hard working families (e.g. not anyone in receipt of benefits, claiming asylum or anyone else that isn’t the appropriate type of deserving poor) as they will be able to earn so much more overtime by way of their zero hours contracts, low paid gig economy task, modern day sweatshop or otherwise insecure employment that pervades our labour market.

But make no mistake, reducing hard fought for employment rights is what it is really all about.

For the uninitiated, the Working Time Regulations aren’t about unelected European bureaucrats, red-tape, immigration or anything else that the press routinely stir up hatred against. Nor were they about improving employer brand, Glassdoor score, employee engagement percentage, winning the war for talent or any other HR related intention.

The Working Time Regulations are about health, safety and wellbeing. They provide, inter alia, limits on the amount of work and hours that people can undertake to ensure that health, safety and wellbeing – of the worker and of others.

Naturally, some relevant facts were left out of the headlines. Specifically that, in relation to the maximum 48-hour working week, employees have had the ability from the introduction of the Regulations in 1998, to opt out.  To choose to work more, if they wish to do so.  There is no ability to opt out of other provisions of the act, namely those that relate to rest.  20 minutes rest after six hours work.  At least a day off a fortnight.  20 days paid holiday a year*.   Not too much to ask, is it?

Do we really want to consider taking any of this away? Do we really want to have a society in which people can be exploited by unscrupulous employers, or can even choose to work themselves into a state of ill-health?  Put the health and safety of others at risk because of fatigue?

Maybe it is a terrible inconvenience for some employers that they have to provide the occasional break, paid holidays or rest periods. Maybe it’s just too much of an administrative burden for organisations to monitor the working hours of the people that work for them, or to provide an opt-out form, or check the health of a night-worker.  Perhaps the challenging economic position in which we find ourselves is all the fault of the Working Time Regulations.  Perhaps that all employees want for Christmas, is a return to Dickensian working conditions? is the ability to work more overtime?

Vital employment rights and protections must not, cannot, be sacrificed in the name of reducing red-tape, via the Brexit back door. Otherwise the working conditions of Scrooge and Marley will not be an amusing fictional exchange, confined to history, but the reality of some in our labour market.
*It should also be noted, for anyone wishing to jump on the Europe bashing bandwagon, that in respect of holidays, it is the UK that extended the right form 20 days leave (which could include eight bank holidays) to 28 a few years ago. I’ll stop now.

Uber, employment rights and the gig economy

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On Friday of last week, it was held in the employment tribunal that two Uber drivers were not self-employed on their own account (as Uber claim) but were in fact workers.

A quick summary if you are new to the subject…… there are essentially three broad ways in which you can be categorised when it comes to work.  You are self-employed and doing it all by yourself – and you therefore have no employment rights at all.  You are an employee; on the payroll and the recipient of a whole host of employment rights including the right not to be unfairly dismissed, or finally you are a worker – and you therefore have some rights such as, crucially, the right to be paid the minimum wage and the right to rest breaks under the Working Time Regulations.

This might all sound like a legal technicality, and it often is.  But an important one if you want to ensure you have any employment rights at all.

The judgement itself was no real surprise.  Whether someone is considered an employee, a worker or self-employed has been the subject of plenty of case law over the years, and the tests are fairly well established.  There are several factors considered when determining employment status, but control is a big factor in the decision.  To what extent is the individual concerned truly in control of their own work or instead in the control of the organisation?  Who controls the work given?  Can the work be turned down? Who issues the actual work instruction? How closely is it managed? Can you send someone else to do the work? Who do you ring if you are too sick to work? Do you turn up in your own clothes or do you have to wear a company uniform? What happens in practice rather than what is said to be done in a written agreement?

On this basis, and when you look at how Uber operates in practice, the decision that these two individuals are workers is a straightforward one.  They set the rates, they operate what is effectively a system of discipline and penalties, and there is a whole host of rules about how the drivers must operate.

Uber is often held up as an example of innovation.  Of the new digital world.  New ways of working.  It is business conference fodder.  But what of those working within it day to day?

There is much talk of the so-called ‘gig economy’.  The notion that more and more people are, for a whole range of reasons, not engaging in the Monday to Friday 9-5 full time employment thing, but instead are taking short term ‘gigs’.  Self-employment, day rate work, one piece of work at a time – whether that is one cab ride or a day of HR consultancy.  But of course the gig economy also includes those who are on zero-hours contracts.  Waiting for a call from the temp agency.  Wondering where the next few hours of work are coming from.

The gig economy comes complete with urban myths built in.  That those engaged within it are hanging out in hipster coffee shops, enjoying a better work life balance than the rest of us who are sticking safely to the regular pay cheque.

It is true that most people make a choice to be involved in the gig economy.  Sometimes that choice is about freedom, work life balance, being your own boss.  Flexibility.  And sometimes it is a choice between that or not working at all.

The legal challenge to the Uber model is far from over. Leave to appeal has already been granted and this one will run and run.   What we do know is that more challenges of the Uber nature are inevitable.  There are plenty of other organisations operating similar models of work. It is estimated that nearly 30% of people are now engaged, somehow, in the gig economy – a figure that is predicted to rise even higher.  Technology is increasingly allowing people and work to be put together in the moment.   Technology leads and the labour market follows.

There is a dark side to the gig economy.  Where those engaged within it have no power and no choice and even fewer employment rights.  As has ever been the case, the labour market is two-tiered.  There are the haves and the have nots – including the have nots of employment rights.  We should increasingly expect those engaged within it to challenge accordingly.

And as for Uber et al, as a consumer, I want to use the technology. I want the convenience. But I’d also like those for whom it provides work to have some employment rights too. Wouldn’t we all?

If it ain’t broke…

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According to the press at the weekend, the government is intending to seek to renegotiate our agreements with the EU and return the right to set employment laws to the UK.  We want to opt-out of all of this restrictive, gold plated employment law.  Two of the Acts that were quoted as being in this particular firing line are those on working time and agency workers.  Let’s just look at those two Acts for a moment.

The Working Time Regulations have been with us since 1998.  If they were a person then they’d be taking driving lessons and trying to look old enough to get into pubs.  Enacted as essentially a piece of Health and Safety legislation, they are all about ensuring appropriate working hours and more importantly, sufficient rest.  They require that people take at least a day of every two weeks.  That people take a minimum amount of annual leave.  That people have proper rest between ending one shift and beginning another.  Terrible stuff that.

Then there is the Agency Workers Regulations.  A piece of legislation that requires temporary workers to receive the same pay, after a qualifying period, as someone doing the job on a permanent basis.  Fancy that!  People having the right to be paid the same as someone else doing the same job.

I am being deliberately flippant.  Whenever new legislation is proposed and enacted, there is always a crowd of cynics ready to cry that industry as we know it will cease.  Jobs will be lost.  Businesses will be deterred from taking on staff.  Entrepreneurs will shut up shop and go somewhere less regulated instead.  It happened when the Equal Pay Act was proposed.  It happened too with the WTR.  And with the National Minimum Wage.  But we are still standing, all the same.

Does anyone really believe that either of these pieces of legislation are damaging industry?  If so, where is the evidence?  And even if they are… then to a point, so what?  There needs to be balance between the needs of organisations and the needs of individuals and wider society.  I’d suggest that there are some things that are just as important as labour market flexibility.  Like fairness, wellbeing, paying people a living wage, equal treatment, health.

Long working hours contribute to ill-health, mistakes and accidents.  Low paid agency work contributes to our already problematic low pay economy, where workers end up relying on the State to make up the difference to a wage they can actually live on via tax credits.

Of course these aren’t the only EU employment directives.  There’s a few about equality too, among others.  Making sure that people aren’t discriminated against because of their age, their sexual orientation, their race, their disability.  Let’s hope no one thinks that we don’t need these, too.

 

 

A very long probation period

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I’ve been in my current job two years today.  I’m guessing my team will have the flags out when I arrive at work this morning, by way of celebration.  Maybe.

Here in the UK, only now (or a week ago if you take my statutory notice into account) do I really have full employment rights.  Only now, do I have the ability to challenge my employer if they had unfairly dismissed me, or treated me so badly that I simply could not stay and so resigned.  Before today, unless I was being discriminated against for a protected characteristic such as gender, pregnancy or disability, or some important but not quite so often used stuff like trying to assert my statutory rights or being a member of a trade union, then I didn’t have that many rights at all.  My employer could, before today, have simply dismissed me.  Just because.

Up until an amendment by the current Government in 2012, I would only have needed a year of service with my employer to obtain these rights.  It is fair to say that this time period has moved around over the years, up, down and back up again, depending on the government of the day.

When it comes to employment contracts, most of them, wherever you work, have a probation period.  Personally, I loathe them. Nothing says ‘we aren’t really sure about you yet’ than a contractual clause that allows you to exit someone sharp left if you later decide their face doesn’t fit after all.  Too often, probationary periods are used to deal with the outcome of poor recruitment and selection procedures, or an unsatisfactory induction process.  The phrase makes me itch too. It makes it sound like beginning your new job is akin to committing a criminal offence.

But despite those personal bugbears, I recognise why companies feel that they need them.  With even the very best of recruitment and on-boarding efforts sometimes it just doesn’t work out for one or both of the parties.

Some people are surprised to learn that both legally and practically probation periods mean very little.  The ability to dismiss someone quickly and without much process (or indeed notice) in the first few months really just rests on the fact that, as long as you are not breaching those rights that exist from day one, then employees aren’t able to bring a claim for unfair dismissal, and that the law only provides for one week’s notice per year of employment (unless you happen to have contractually provided more).  Unfair dismissal law as it stands today therefore, is one big, fat two year probation period.

There is much talk at the moment, especially on the run up to the election, on employment issues to be tackled.  The political parties are confirming their plans.  Even the CIPD has launched its own Manifesto.  I am yet to see anyone mention the issue of qualifying service to bring an ET claim.

The difference between one year and two might not seem much, in the grand scheme of things.  I’m arguing that it is.

The increase from one years’ qualifying service to two was part of an overall aim to reduce the amount of employment tribunal claims going through the system.  It was estimated at the time that it might reduce claims by 2000 a year.

Only there is a problem with that number.  We have no idea in what circumstances those hypothetical 2000 employees left their employer.  It is tempting, or perhaps easy, to think that it was related to performance grounds.  That perhaps their employer has been saved from some terrible ‘red tape’ that would have impacted their organisation, or cost them unaffordable sums of money.  Or that these hypothetical employees were on the employment tribunal ‘gravy train’ and bringing vexatious claims.  © The Daily Mail.

But we just don’t know.  Maybe, just maybe, they are 2000 employees denied justice in a system that already makes it difficult for employees to challenge bad employers and bad employment practice.  And sadly, there are plenty of these around, whatever the legislation.

Here’s the thing. No employer needs two years to figure out whether someone is right for the job.  I find it hard to accept that many employers will be encouraged to hire more people because of the move from one year to two, that it has a positive economic benefit, or that it will save employers or the tribunal system vast amounts of money.  I do find it easy to believe however, that there will be managers and companies where they simply wanted rid of people and this makes it easy to do just that, in a labour market that already includes far too much low paid, vulnerable work.  I do find it easy to believe that there are conversations taking place along the lines of ‘they have less than two year’s service so I can do what I like’. I find it easy because a long time ago, I used to work at a company where managers that said just that, and often.  When an issue arose concerning an employee, the discussion would start with an enquiry about their length of service. And that would frame the response and approach.

If employers are worried about an employee bringing a claim for unfair dismissal, then instead of looking externally to the law to help protect you, might I suggest looking internally instead.  Because if you treat people well, follow good employment practice, train your managers to deal properly with their people stuff, and act reasonably, then you have little to fear from an unfair dismissal claim, whatever the length of service someone has.

Now.  Where are those flags?

When it starts being you

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There is a quote in a Stephen King novel that goes something like this:

‘It’s like the old pie in the face routine.  It stops being funny when it starts being you’.

Over the last couple of years some key changes to employment legislation mean that employment rights ain’t what the used to be.

An increase from one year’s service to two in order to bring a claim for unfair dismissal.

The introduction of tribunal fees, reducing access to justice in a monumental way.

And now there are proposals to change the laws on industrial action, and in particular change the rules around balloting, with the result that it will be more difficult to call a strike. If the proposals go ahead, a simple majority vote will no longer suffice.  Instead there will need to be a minimum turnout of 40% of all of those eligible to vote before any action can be taken.

The question therefore occurs: do we have a huge problems with strikes in the UK?  I’m no @flipchartrick so there won’t be any detailed analysis, and neither will there be a @wonkypolicywonk style graph because I can’t work Excel.

But a glance at the data suggests…. Not so much.

A very quick review of the latest figures available from 2013 says that whilst working days lost due to labour disputes were up overall from the previous year, there were 114 actual stoppages in the UK.  Like, in total.

Of course there are big strikes from time to time and they tend to get equally big headlines. Some of these strikes do cause inconvenience. Especially when tube strikes take place on the same day as a CIPD conference.  But 114 stoppages suggests that British industry is hardly at a standstill because of the enemy within. So why the proposal?

Simple.  There is an election coming up.  So it is time for some tough talking headlines about tackling the usual suspects.  Benefits scroungers, addicts, people who should just get a job.  And now it is turn of the trade unions.  Only the thing with industrial action, and indeed many of the people against whom society’s ills are attributed, the reality behind the headlines is often very different.

According to an article over at the HR Magazine (citing research by Eversheds), 83% of businesses support the government proposals to reform strike laws. I’d like to ask those that said yes another question: when did you last have a strike, at your place? Or even the hint of one? And if you have or you might, would you rather rely on a statute that stops your employees from withholding their labour, or find a way to actually resolve the dispute and engage with the people that work for you?

There are a couple of things that I believe to be true. One of them, is that if you have to start pointing to a contract clause or quoting from statutes you are half way to losing the real argument – and creating a situation and a relationship challenge that only fixes positions and from which you may never recover.

I also believe that people act in the way that makes the most sense to them, that feels like the best option or choice in their particular circumstances.  So the more unusual or irrational the behaviour, the more important it is to try and understand why someone feels that this is the best thing for them.  I believe that there are better ways to solve workplace conflict than strikes.  But putting that aside for a moment, how many stoppages would the proposed change in the law actually prevent?  And what might the unintended consequences be too?

I know that misguided claims, vexatious claims, not founded in anything like employment law claims happen.  I’ve had my fair share over the years, just like most HR professionals.  I know that industrial action can be costly and disruptive for everyone involved.  But as HR professionals we can think about this stuff in different ways.  We can think about it narrowly, and consider the possible benefits to our own organisation. Fewer pesky claims to deal with, or less chance of industrial action, at our place.

Alternatively we can think about it more broadly.  Consider, in a labour market stuffed with low paid work, structural youth unemployment, zero hours contracts, a great big hole developing in the middle, a society in which you can live in poverty even when you are in full time employment, what we really want for employees and for workplaces.  Do we really want fewer employment rights, within this context?

Finally, you can think about it this way.  What, if the worst happened to you at work, would you want?  When I write a people policy, devise a new process, this is my starting point.  If I was sick, what would I want from my manager? If I was being made redundant, how would I want to be treated? If I was harassed at work, how I would I want to raise it?

We may never personally need to reply upon many of the valuable, hard won employment rights that we have.  But they protect us all the same.  So their slow erosion should concern all of us.  Because it stops being ok when it starts being you.

 

Twitter, employment law and common sense.

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A case involving social media and employment has made its way to the Employment Appeals Tribunal.  The case involved an employee dismissed for his use of Twitter, and is interesting to HR for a few reasons.

Firstly, it contains some legal folk getting to grips with the terminology of the social world, which is always amusing.  Secondly, it contained this gem of a sentence, referring to the tweets in question.

In her witness statement, she added that they were offensive to other groups of people including dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the police and disabled people.  As you would expect, I disapprove of the latter.  But I fairly sure none of the others are protected characteristics so I feel it is acceptable to laugh.  Especially at the caravan drivers bit.

The facts of the case are these.  The claimant, Mr Laws, worked for the retail outlet Game.  His job was risk and loss prevention.  He set up a Twitter account and followed a number of Game’s stores, each of whom had their own Twitter account, in order to monitor their tweets and any potential inappropriate Twitter activity by employees.  Many of these stores followed him back in return.  At least one of the stores had tweeted from their account suggesting that their followers might also want to follow the claimant.  (It is unclear from the decision if the concept of #ff was explained in evidence).  However, despite the fact that there was a clear link to his work even though the account itself did not identify his employer, Mr Laws tweeted all manner of offensive tweets, including some delightful use of the C word.

Someone told Game, and Mr Laws was suspended, investigated and subsequently dismissed for gross misconduct.  Another interesting sentence in the decision is this one, referring to the date of Mr Law’s suspension.  By that time he had enlisted the assistance of his 14 year old son, and taken down his twitter feed.  What would we do without Generation Z, eh?

The case results in a tribunal hearing to determine if the dismissal was unfair.  The claimant doesn’t dispute he sent the tweets, but did argue that the sanction was too harsh.  The tribunal held that the employer hadn’t been reasonable in the decision to dismiss.  They took into account that the tweeting was done in his own time, that he was using his own device and that the activity wasn’t part of his job.  For me, these arguments just don’t stand up in the real, social world.  I tweet HR stuff.  My twitter bio doesn’t identify my employer.  But I know that I am followed by lots of people that work at the same place, and my tweets can be seen by our customers, potential employees, my boss, anyone.  And I am capable of bringing my employer into disrepute by what I post. Some might argue my One Direction tweets already do. Social blurs the boundaries between work stuff and not work stuff. My advice is simple.  Get two accounts or protect your tweets.  Then you can misbehave in private if you wish.

One other important point came up in the first hearing.  Game had no social media policy.  You do need one.  It doesn’t need to be the size of a brick.  But you do need to tell people what is okay and what is not.

Game appealed, and the decision that the action taken by Game fell outside the responses of a reasonable employer was overturned.   The useful bit of the case is that the tribunal were invited to lay down some general guidance on misuse of social media in the context of unfair dismissal claims.  They declined to do so.  In a break out of common sense, they said that the existing law was good enough, and that cases would always be very fact and context specific.  What employers need to do is what they already required to do – be reasonable in the circumstances. They also said that companies will want to find a balance between the employee’s right of freedom of expression and managing their reputational risk.  They finished with this: For us to lay down a criteria by way of guidance runs the risk of encouraging a tick box mentality that is inappropriate in unfair dismissal cases.  Awesome.

What seems to me to be clear from this case, is that the claimant was a bit of an idiot.  And we should not generate guidance, binding case law or policies, based on or for idiots.

You can think what you like.  You can say what you like.  You can pretty much tweet what you like, unless you are breaking the law with your 140 characters.  But a little common sense would tell you that tweeting whatever comes to mind, especially when it includes expletives, obscenities and insults (not to mention some very dubious spelling and grammar) is going to cause you an issue if that account is linked in any way to your job.  Common sense.  Something that should be exercised alongside your social media use at all times.  And if you don’t know how to do that, you could always ask a 14 year old.

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.

LinkedIn – employment law v reality

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I came across this article recently on the issues of ownership and social media accounts, primarily the professional contacts made during the course of employment through LinkedIn.

The law and the practical reality aren’t meeting anywhere close on this issue.

Let’s take me, as an example. I have around 1500 LinkedIn connections. Some of these are people I know really well, I work with them closely now, or they are former colleagues. Some of them I’ve met just once or twice. We’ve met at a networking event or they have heard me speaking at a conference and one of us has pinged over a follow up connection request. Some are connections from other social media networks like twitter. Some of these connections I have never met at all, but I’ve LinkedIn with them anyway because we share something in common, usually HR stuff. Some of them I connected with online because of a shared interest, and we are now friends. About 1000 of these connections I had before I joined my current employer. The rest are more recent additions. I’m pretty sure these are my connections, and not my employers.

Of course you can try and build something into the Contract of Employment about ownership. By all means start a debate about what is the property of the employer, what is in the course of employment, what amounts to confidential commercial information. Or even as this article suggests, some restrictive covenants are now being drafted to include reference to a change of LinkedIn status amounting to solicitation of clients.

Whatever the law says on restrictive covenants, whatever the contract of employment seeks to enforce, this is a losing battle.

There are simply too many practical issues to get over. How do you define who owns which connections when they have been made spanning more than one employer? What amounts to solicitation when you can tweet everything about your products and services in less than 140 characters and anyone can follow you? How can you restrict people from updating their status any more than you can updating their paper copy CV? How can you actually stand over someone and make them block their followers, delete their connections, unfriend people on Facebook?

Yes, there is recent case law on the ownership of LinkedIn connections, but before all the HR folk rush to update the Contract of Employment, it was about the ownership of a work related group, rather than an individual account which is very different.

Make me delete a LinkedIn connection before I leave? Fine. I’ll find them on Twitter or Google+ instead, if I’m not hooked up with them there already.

Make me set up an employer controlled account and hand over the password? Fine. I will just set up another one when I leave and just connect with people all over again.

Because you can’t stop people knowing people. Just like you couldn’t in the days when employers worried about the sales guy stealing the rolodex (if you remember what one of those is, of course).

We live in an increasingly open and transparent world. We think nothing now of putting our entire CV online for people to view. We think nothing of tweeting or sharing our thoughts with the world. Or our followers at least. Work and personal is increasingly blurred.

Today, you can find pretty much anyone you want to find. You can connect with them in multiple ways. Because we are all social now.

Employers – I’m sorry but you are just going to have to deal with it.

Unscrupulous or Unsavoury?

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Today, the Telegraph published comments attributed to Matthew Hancock, Minister of State for Education, concerning the recent, rather humongous decline in employment tribunal claims. A drop of 79% since the introduction of fees in order to bring a claim.

I’ve blogged my thoughts before on the implications of the decline, and I won’t repeat myself here. But I do want to address some of the comments in today’s Telegraph.

Hancock appears to feel that the decline of claims is a massive success. ‘Unscrupulous workers caused havoc by inundating companies with unfounded claims of mistreatment, discrimination, or worse. Like Japanese knotweed, the soaring numbers of tribunal cases dragged more and more companies into its grip, squeezing the life and energy from Britain’s wealth creators’.

He went further and said that the tribunal system ‘was being ruthlessly exploited by people trying to make a fast buck. Increasingly the real victims were the businesses targeted by bogus claimants’.

It’s true that the number of claims have, prior to the introduction of fees, been rising for years. However, once you get underneath those increases much of it is driven by multiple claims.

During the recent claim drop off, there were 77% fewer sex discrimination claims. 58% fewer unfair discrimination claims.

To take just one example. Research was commission by the current government in 2013 into the current state of discrimination suffered by women during and after pregnancy. According to the press release that accompanied the launch of the research, 1 in 20 people who had contacted the Equality Advisory and Support Services in the previous year had done so concerning pregnancy discrimination. Were all of these callers seeking to make a fast buck out of their blameless employer?

For some time tribunals have had the power to make a costs awards where a claim is believed to be vexatious or malicious. The fact that there were only 522 costs awards in favour of respondents in the 2012/13 out of over 190,000 claims heard, suggests that perhaps the issue wasn’t as big a problem as Hancock would like us to believe.

The median award for unfair dismissal for the same period was less than 5K. This is hardly the stuff of financial dreams for most people. Let us also not forget, that unless we get into injury to feelings type stuff, most of the compensation awarded in tribunal is loss based. In other words just putting people back to the place they would have been but for the breach of employment law.

Here’s the thing. Some claims are misguided. Some are malicious. Some are made to make a point, in anger, or in fear. Some have no basis in law. I’ve seen them all. And when this happens, I know only too well the impact that this can have on the people involved, not to mention the annual budget.

But not all claims.

We don’t have a handy percentage to tell us how many claims are bogus. But I do know this. Some employers are shoddy. Some employers ignore employment law. Some employers treat their employees unfairly, discriminatorily, illegally. Within some organisations, there is bullying, harassment and discrimination of every conceivable sort. And there simply must be a place for those people to go for recourse.

The employee subjected to racial harassment must have access to justice. The employee sacked for blowing the whistle must have access to justice. And the pregnant woman made redundant straight after maternity leave. And the job applicant who doesn’t get the job because of their disability. And so on.

To suggest that the vast majority of claimants are unscrupulous is neither fair, justifiable or accurate. To pain employers as victims of money driven claimants just isn’t backed up by the evidence. To suggest that a 79% decline of claims is a great success, is nothing short of distasteful.

Justice for the few?

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The latest Employment Tribunal Statistics make for interesting reading (no, really). The first full set of data since the fee regime was introduced is now available.

So what do the statistics have to say? In 2012/13 the Employment Tribunal received on average 50,000 new claims per quarter. Provisional figures for Oct – Dec 2013 show there were less than 10,000 claims. Volatility month on month is nothing new, but this decline is more than significant.

Overall, claims are down 79%.
And yes, you did read that correctly.
The number of single claims has dropped by around 63%.
And I don’t think that is a good thing.

This might sound strange from someone sitting on the employer side of the fence. And I have certainly had my fair share of weak claims, vexatious claims and just plain stupid claims. In fact, I once had a claim from a man about his right to time of for antenatal appointments. But here’s the thing. It’s bigger than me. It’s bigger than any claim my employer might have to fight. It’s about the common good. About what is right. It’s about every employee that has been treated appallingly by their employer. It’s about every dodgy, exploitative employer that has discriminated, unfairly dismissed, or denied someone their statutory rights.

In that 79%, there will be employees taking a punt on a payout. There will be some employees with an axe to grind. Some employees who have Googled the law and are making it up as they go along. (I also once dealt with someone who had found some very useful legislation that supported their claim. Unfortunately it had been enacted in New Zealand and they lived in Hull).

I’ve rarely met a claimant who did not completely believe in their claim. So something is stopping them. Several unions are funding claims for their members, who presumably are included in the 21% of claimants who still have the ability to bring a claim. I cannot help but conclude that the low paid are being denied access to justice.

It was once said that justice is like the Ritz. Open to everyone. But of course only the rich can afford it. And maybe now the same can be said about the employment tribunal.

The introduction to fees may have saved me a claim or two. Saved me some money from the legal budget. But I don’t feel good about it, all the same.

The Convenient Proof?

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It’s been a while since I blogged about employment law, so apologies to those that have followed the link expecting my usual musings about leadership and organisational culture, but the recent Liberal Democrat investigation into allegations of sexual harassment against Lord Rennard has prompted a legalish sort of blog post.

Many years ago, I went off to university to study the law. Much of what I learned has now, partially with the aid of liquid refreshment available from the student union, passed from my memory. And when it comes to all that stuff about trusts and equity then good riddance too. But I do remember one thing that they taught us fairly early on: the rather important distinction between the criminal and the civil law, particularly in reference to the topic of the burden of proof.

Now if those people who usually visit my blog for a thought or two about employee engagement are still reading, it goes a bit like this.

In criminal law, the burden of proof is ‘beyond all reasonable doubt’. It is a high standard, and so it should be, as a criminal conviction may deprive an individual of their liberty, and in some countries, their life. Whilst it does not mean absolute certainty, it does mean that extremely sure. There can be no plausible reason to believe otherwise.

Not so in the civil law. Over there, we are looking for ‘the balance of probabilities’. Simply, it is more likely than not. A burden of proof that is nowhere near as high as its criminal counterpart. This is the one that we apply in the employment law context.

Now, back to the LibDems. I should state at this point I know little about their constitution or party rules other than what is currently available via various media sources. What we do know is this. A senior Liberal Democrat is accused of sexual harassment and an investigation was undertaken. The party internal procedures provide for the claims to be proved beyond all reasonable doubt. The investigation found that this burden was not met. Hardly surprising in a harassment case; such incidents will rarely find themselves with witnesses or a handy smoking gun. The investigation did decide that there was broadly credible evidence over a period of several years that ‘violated the personal space and autonomy of the complainants’. I don’t claim to have read entire report, but that sounds suspiciously like meeting the balance of probabilities test to me. Even the QC who lead the enquiry thought that there was sufficient evidence to warrant an apology.

Here’s the thing. There is quite simply no need for internal procedures, or political parties, to refer to the criminal burden of proof as a standard for investigating internal matters. When we are at work, we are at work. We are not in a court of law (unless you happen to be actually employed by one), being charged with a crime for which you could be sent to prison. Whilst the matter, as with many issues that also arise in the course of employment, might also amount to a criminal offence therefore entitling the employer to notify the policy as such, this does not appear to be being dealt with as a criminal issue. Where situations at work arise that can be either a criminal matter or a civil matter or both, they can be dealt with separately. There is plenty of case law to back up this point.

Parking the employment law argument aside for a moment, what about the moral one? The conversations I like the least at work are of the ‘my contract of employment states, it’s not in myjob description, can I refer you to the policy manual’ type. Because if you are arguing about a black and white interpretation of some document, some policy, some situation, you might just be losing sight of the real issue.

Put aside for a moment technical definitions. Look at what is going on, at its heart. During my career in HR I have been faced with accusations of varying types against employees. Some of these have had substance, and some of them have not. Of course a proper investigation has to be undertaken, and the findings acted upon, whatever they are But if we are doing our jobs in HR we look beyond the formal findings. We listen, we look, we attempt to understand. What is this telling us about our culture, our leadership, our problems? We must never lose sight of what our real issues are by focusing on a definition in a textbook or policy document.

Because as a leader, or HR professional, if all you can do is point at the wording on a page and use it as an excuse to take no action, then quite simply, that ain’t good enough.

Note: I was half way through writing this post, when Darren Newman wrote a better one. You can find it here.

TUPE Changes – are they needed?

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I read the government’s proposals to change the TUPE Regulations over the weekend.  The increasing emphasis on tackling so called ‘gold plating’ of EU Regulations has lead to proposals for more employment law change, and in my view, not necessarily helpful change.  As you can tell, this is going to be quite a legally blog, so non HR and TUPE types should probably look away now.

Before I start picking fault, I should say that there are some aspects of the proposals that I do agree with.  TUPE can be a complex beast, and some areas are ripe for improvement and increased clarity.  Changing the approach to ‘entailing changes in the workforce’ to include location changes is one of them.  It doesn’t make sense that something that would be a potentially fair reason for redundancy amounts to an automatically unfair dismissal under TUPE.  It also makes sense to allow small businesses to consult directly with employees rather than through representatives.  I can also see the potential logic of allowing the transferor to rely on the transferee’s ETO reason in respect of pre transfer dismissals (albeit there would need to be very clear guidance on how this should be undertaken).   Finally, some more guidance around the complex area of pensions and TUPE would be beneficial to many. 

Unfortunately, the remainder of the proposals start to cause me some concern. 

So what are they proposing to change?  In a nutshell the main proposals (among others) are:

  • Removing the 2006 Service Provision Change definition of a transfer (contracting out, contracting in, and changes of contracted services)
  • Repealing the requirements around providing employee liability information to the other party
  • Changing / clarifying the meaning of ETO reasons (economic, technical or organisational reasons) – making it easier for a dismissal on location grounds
  • More clarity around pensions and when TUPE applies
  • Consultation changes for small businesses

The essential purpose of TUPE is to protect employee rights in a transfer situation.  However the proposals for change focus unsurprisingly less on employee rights than they do the interests of the employer.  The consultation document states ‘it can be hard when outsourcing a service for a transferee to introduce efficiencies and operate more cheaply than the transferor because the regulations act as a barrier to reducing the size of the workforce or (my emphasis) the transferred workers’ pay levels.’  It goes on to say that it is difficult to harmonise the terms and conditions of the workforce with the transferees existing workforce.  They seemed to have missed the point that this is the essence of TUPE; the Regulations exist to ensure that employers cannot make changes in these circumstances.  Is it really morally acceptable that for the sake of competition we should be able to reduce workers’ pay?  (Worryingly I’m starting to agree with the TU’s on this one). 

There is comment in the consultation document about how difficult it is for employers to manage employees with different sets of T&Cs.  I would disagree.  I’ve worked for businesses that transfer employees under TUPE all the time and are perfectly capable of dealing with this.  An example is given that it’s not even possible to change the date of pay, leaving employers to run two different payrolls.  Putting aside whether this is really that onerous, I have never had a transferring employee refuse to change a pay date to fit in with our cycle: just ask them!  Surely there are better reason for change than this. 

The Service Provision Change was introduced to give clarity of when TUPE applied and when it did not.  Yes, potentially it extends the situations to which TUPE applies, but removing it could leave us with even less certainty than we have now.  It will certainly send us back to the pre 2006 case law position.    

I’m not sure why the consultation document proposes limiting the time period for T&C to apply for one year before they can be changed; they admit in their own document that this is likely to be against the Directive and probably therefore cannot be achieved.  Even if it could be, is that really right that after a year employers can enforce any change that they like on transferred employees?

The consultation documents goes on to say that the SPC may have imposed a burden on businesses and asks ‘whether they have delivered the benefits originally anticipated’.  What about the benefits to employees?

My favourite section is 7.14, which states that employers previously had to take legal advice on whether or not TUPE applied.  Post the 2006 SPC they now have to take advice on how TUPE could be avoided or how to mitigate its effects.  So we should change the law because employers are having to spend money on advice on how to avoid it? 

I said earlier that TUPE is a complex beast.  But it’s not all the time.  Some transfers are very straightforward, so it does concern me that we are, to quote my grandmother, throwing the baby out with the bathwater, by potentially discarding some things that don’t actually present HR practitioners and businesses with many problems.  The potential changes to the employee liability information rules is a good example.  This area could do with more clarity, and the information provision could be sooner, providing for much more effective consultation.  But how will removing it entirely help this? 

In summary, there is little here that is really going to help HR practioners or employees, and the changes will potentially further erode employment rights.  I guess it will be good for TUPE lawyers though!    

Rant over.

I agree with Nick

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I haven’t agreed with some of the employment initiatives coming from this government recently (the whole rights for shares thing nearly made me combust) however, today Nick Clegg signalled the intention to make key changes to two areas; extending the right to flexible working to all and secondly allowing greater opportunities for the sharing of parental leave.

It didn’t take long for some people to both highlight the practical and legal issues that might arise.  I have seen so far commentary on the impact on business, the pressure of the economic situation, administration challenges and the impact it might have on businesses hiring anyone in their 20s and 30s in case they take leave.  Presumably therefore they are just refusing to hire women right now – so that’s alright then.   Let’s face it, these tired arguments have been around for ever and always come out when changes are proposed to employment law.  They said businesses couldn’t afford the Equal Pay Act, the National Minimum wage, etc, and the economy carried on regardless, so forgive me for not paying too much attention to them. 

So, here’s why I wholeheartedly support the proposals.  The notion, supported by current maternity and paternity leave arrangements, that only women can / want to stay at home with a baby is hideously limiting and fails to take a proper account of the role of the father in the family.  It also does not recognise that the woman is the primary wage earner now in many families, and it may make more financial sense for the mother to return and the father take the leave.  Are there many women who will really want to return to work after two weeks when they are breastfeeding?  Maybe, or maybe not – but this is about giving them the choice which does not exist within the current maternity framework.   Families will now get to decide what works for their individual circumstances. 

 

With regard to flexible working, if I’ve read the speech correctly we are only talking about the right to request flexible working, and not as some media reports seem to have suggested, a right to receive.  All that is happening therefore is an extension of the existing regulations from those with childcare and caring responsibilities.  I’d argue that most enlightened employers do this anyway.  The benefits of working flexibly are well documented, both to individuals and employers.  It’s good for attracting and retaining talent, and is more aligned to the future of work.  The sooner flexible working is seen as something that is potentially desirable to all, and not just an irritant process requested after maternity leave, the better. 

The changes don’t appear to fit within the promise of a reduced burden of employment law that this government promised us.  For once, I don’t care. 

Nick Clegg didn’t give a definite time frame for introducing the changes.  I don’t think they can come soon enough.

Why we don’t need a law on religious symbols at work

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I’m a bit miffed by David Cameron. This is highly unusual for me, I have to say, but his comments last week that he wants to legislate to allow employees to wear crosses at work were really rather pointless and ill thought out, if I may be so presumptuous. And here’s why, IMHO. It all started by a discussion on the Eweida case, which tends to be little understood. You may remember the press headlines; Eweida worked for BA and they don’t allow any employees to wear religious symbols obviously about their person unless they cannot be covered up, such as a hijab. BA has, as is their right, a very strict dress code policy, right down to the colour of the tights you can wear as I understand. Just like the idea that a Big Mac tastes like a Big Mac if you are in Sydney or Sidcup, they like people to look the same world over. BA have since changes their dress code policy and this case is proceeding now to establish a principle.

So, first things first, it is not illegal to wear a cross, or indeed any other religious symbol at work. However companies may restrict this on certain grounds, such as health and safety. Presumably if this suggestion did become legislation we would still need to stop people from having chains dangling less they get dragged into something unpleasant. The main issue is that such legislation would have to apply to all religious symbols and dress, and not just crosses. And would it just be religion or belief too? We have a wide and widening definition of religion and belief in this country. If Mr Cameron goes ahead I can feel the Jedi Knight argument starting again. And goodness knows what will happen if Tom Cruise turns up. Next problem is that the wearing of a cross is not a specific requirement of Christianity. So how would we determine the difference between required symbols and dress, and those that are a personal preference? In other words, this was just a sound bite and would be unnecessary bureaucracy , something which we need less of, not more.

However, notwithstanding all of this comment, Mr Cameron did promise to remove one piece of legislation before enacting any others when he came to power. So I will retract all of the above if he removes the AWR as a direct swap.

Cheer Up! Could you be dismissed for not smiling?

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A relative of mine works for a large supermarket chain.  I probably shouldn’t name them, but let’s just say you would know who they are and you have probably spent money there.  Anyway, the customer facing staff have recently been set some ‘requirements’ regarding smiling.  It might be an exaggeration to say it’s a quota, but they are being monitored and if they are not seem to be smiling in sufficient quantities then they are required to attend a meeting with management in which they are ‘counselled’ on their lack of face twitching activity. Now, I know a little about the employment practises of this organisation, and I am tempted to say if they treated their staff a little better then they might have something to smile about.  Or they could go really mad and employment some actual HR experts rather than making ‘personnel’ managers out of people formerly in charge of the deli or the grocery section (practising HR is a little different to working out how many melons you are going to need tomorrow, IMHO, although perhaps others may disagree). 

It did get me thinking about this from an employment law perspective though.  Is smiling a reasonable management request?  Probably, as there are presumably business reasons for the request linked to customer experience.  So it follows that if the request is reasonable, an employee could be disciplined for a failure to follow it.  So if you can be disciplined for it, then could you be fairly dismissed for it? 

For a dismissal to be fair there has to be a potentially fair reason for the dismissal, of which one is conduct, so we are across that hurdle.  Then it has to be established that the decision to dismiss was within the band of reasonable responses for the employer to take.  The band of reasonable response test goes back to 1982 and Iceland Frozen Foods V Jones.  Much case law has followed, but none on smiling as far as I am aware.  The test gives employers a reasonably wide discretion (too wide for most trade unions) as the tribunal can’t consider whether they think the decision is reasonable, only whether or not the decision to dismiss was a reasonable response which a reasonable employer could have taken.   

So, would it be the action of a reasonable employer to dismiss an employee because they are a bit of a misery guts?  What do you think?

The Beecroft Report on Employment Law

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A bit later than some of the legal brains that have already blogged elsewere, I thought I’d add my voice to the others who have commented on the Beecroft report on Employment Law. For me, the proposals are mixed. Some good ideas, some that will make very little difference, and some stinkers showing, IMHO, a lack of detailed understanding of the relevant case law and legislation. On unfair dismissal, and a suggestion that ‘the burden of proof on the employer could be reduced’. The burden of proof is basically the Burchell test. For the non employment law geeks who might stumble across this blog, this is a case from the late 1970’s which basically says you need to do a decent job of the investigation, genuinely believe that the employee did whatever they are accused of, and generally be a reasonable employer. There is a school of thought that says this test is already pretty easy for an employer to meet. Certainly the trade unions spent long enough trying to challenge it through successive jaunts to the House of Lords. So how much easier could this really get? Then we come onto the so called ‘no fault dismissal’ brainwave. Plenty has already been said about this; the only thing that I can add is to say that this looks like having the potential for generating a fabulous amount of case law, that will go on, and on and achieve the total opposite of what Beecroft would want; time in the employment tribunal. I actually agree with his suggestion that the Equality Act provisions regarding third party harassment should be repealed, however I question his suggestion that these provisions ‘create a temptation for employees to conspire with each other or with customers to create a harassment situation’. I would love to know if anyone has any examples of this actually happening. Anything is possible, but that does not make it a real and actual threat to employers. Work permit checks – Beecroft says this should be done by a third party body rather than the employer. Yes please! Tomorrow? I’m also totally in agreement with the idea that the collective consultation period should be reduced to 30 days from 90 when more than 100 employees are impacted – but you would expect me to say that wouldn’t you? When it comes to TUPE, and so called ‘gold plating’ there could be better focus placed on ‘TUPE plus’ and public sector pension requirements rather than amending the Regulations to allow for reducing employees pay and benefits post transfer. This would create a licence for unscrupulous employers to ride roughshod over transferring employees. Beecroft talks about harmonisation often resulting in adopting the best provisions from each set of T&Cs. He is missing the point here in my view; there is no need to harmonise, and no obligation to provide the ‘best’ of the terms under the Regulations. Yes some minor ER issues can arise, but plenty of companies, including my own, manage perfectly well with employees on a variety of T&Cs as a result of a multiple transfers. I’ll save my last point for the Agency Worker’s Regulations, before this turns into War and Peace. It’s a European Directive. We agreed to implement it. And it was a trade off to ensure we got left alone on the WTR opt out. No one is going to just repeal it, so why recommend ignoring it? Enough said.