Managing employees is critical to the success of every business, and in these hard times it is imperative that your full team pulls their weight.
In an ideal world, your business will be full of passionate individuals, working together for the overall success of your company. However, it doesn't always turn out like this. Whether the employee lacks the ability to deal with clients and colleagues or is persistently sloppy; the effect of one “bad apple” can have a degenerative effect on your hard-earned success.
Disciplining a bad employee can be a long and painful process, so acting pre-emptively to ensure that both your rights, and the rights of your employee, are covered is essential.
Make sure all of your HR decisions are by the book. Instigate personal development plans with regular performance related targets and establish probationary periods for all new employees to ensure that your new team member is following through with the promises made in their interview.
No! A quiet word may often be all that is needed. This is not to say that managers cannot keep a note of these discussions, and any informal verbal warnings they have given, otherwise this will become an ineffective management tool.
Informal usually has reason to become formal when there is continued poor performance in areas of concern. Common examples include continued:
Every issue should be handled individually — if the matter involves misconduct rather than underperformance, make sure that it is treated as a result of conduct as opposed to a shortcoming in capability, otherwise it may result in unfair dismissal.
This is known in law as “summary dismissal” for gross misconduct, and any of the following actions by an employee may warrant immediate dismissal:
This is the part that tends to baffle most employers — exactly how much investigation is required?
The investigation must be even-handed, and should not simply be a search for evidence against the employee. Evidence in the employee's favour should also be sought.
The employee needs to be given sufficient time and information to form a meaningful response to all allegations. Depending on the results of the investigation, if formal disciplinary action is needed the employer should:
The ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice exists to improve workplaces for both employers and employees — and keep everyone out of costly industrial tribunals.
It’s vital to know exactly where you stand legally before embarking on any discussions or disciplinary procedures with any employee so always consult a law firm.
Wax Noor is Senior solicitor at Brilliant Law.
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Small businesses need every employee to pull their weight – especially in these hard times. The perfect workplace is full of cheerful, positive, skilled employees all pulling in the same direction for the success of the business. In the real world, however, we all know the corrosive effect even a single bad apple can have.
It might be a character trait that was not picked up at interview, inability to deal with customers and colleagues or persistent sloppiness, inaccuracy and time-keeping. However, once you have hired someone, you cannot simply get rid of them as soon as you realise they are not right for your business, without being mindful of potential discrimination claims.
So what can you do? Well, expert advice is out there, some of it free and some of it paid for.
ACAS (the Advisory, Conciliation and Arbitration Service) exists to improve workplaces for both employers and employees – and keep everyone out of industrial tribunals. Specifically to help SMEs, it has a tool called the Model Workplace, which offers tips on maintaining good employment relations. Its advisers are also available to talk on a wide variety of disciplinary procedures, offer training to managers on dealing with problems and a free new ACAS early conciliation service can help resolve workplace problems that seem ‘impossible’. See www.acas.org.uk or call 08457 47 47 47 (8am-8pm Mon to Fri and 9am-1pm Sat).
It’s vital to know exactly where you stand legally before embarking on any discussions or disciplinary procedures with any employee. While talking to a specialist employment lawyer may not come cheap when you’re counting every penny, it’s worth it.
Having a definitive set of grievance, disciplinary and conduct rules puts you on solid ground before you begin to tackle your problem and lets you see what is and isn’t possible. Most importantly, seek to avoid this kind of situation in the first place.
We approach recruitment for each vacancy with real caution. We introduced temp-to-perm for three reasons: it provides a means for both parties to test each other out; employees like the transparency of this contract; and for those eager for a job, it’s a chance to prove their worth, driven by the end goal of a full-time position.
We also test our candidates. The depth of testing is proportional to the position, but always includes maths, English and problem solving. I’ve been bowled over in the past by an amazing interview, only to find out by day two that the candidate can’t read, write or follow a process.
Every new employee arrives with a probationary period attached, so use it. If you have to let someone go at the end of their probation, make sure you hold an exit interview during which you can discuss exactly where things went wrong. If you're letting someone go for behavioural reasons, stick to the facts and don’t let emotion cloud anything you say.
Once you have recruited someone, stay on top of their performance. If there are any issues in the standard or application of what's being delivered, flag these up immediately. Don't let it slide. If these issues are not addressed formally, the employee isn't given the opportunity to improve and in the meantime, resentment and errors escalate. If the employee fails to improve, you have on record a consistent lack of delivery.
You’re more than likely a good judge of character to have established a business on your own, so consider that very few people change in this life - it is very unlikely this person will ever become employee of the month, so at what point do you stop trying to mould them and cut your losses?
You are only as good as the people you employ, so don’t let the wrong kind of worker be the undoing of a business you’ve sweated blood to build up.
Ian Cowley is the managing director of www.cartridgesave.co.uk, the UK’s largest dedicated printer cartridge company.
2013 sees changes to business law - as per usual, most new regulations are employment based, and a couple might cost you time or money. But good news is not far behind - for example, from April, your business customers are now obliged to settle their accounts within a month or pay you hefty interest. And thanks to the first new rule of the year, this month's "One in, two out" Cabinet command to civil servants means that any new rule that involves business spending automatically triggers red-tape reductions - allegedly saving you double what you spend.
Our top 10 key changes (some exact dates are tbc):
1. As of now: If any of your higher-earning staff is panicking about having received this month's Child Benefit even after they've opted out, bear in mind Child Benefit is paid in arrears, so no action is required. HMRC reminds parents: "If you receive a payment in January 2013 you don’t need to do anything. "
2. After 1 February, the statutory redundancy maximum amount for a week's pay rises to £450 a week.
3. From March, the amount of unpaid leave a parent can claim increases from 13 to 18 weeks.
4. In April, rates of Statutory Maternity, Adoption and Paternity Pay go up a touch from £135.45 to £136.78 per week. Remember, as ever, you can claim payments back from HMRC.
5. Also in April, firms can offer a new type of employment contract - employees will be able to sign away some employment rights for shares in the firm ( £2,000–£50,000 worth) which will be tax free. You can offer this to existing and new staff.
6. To be launched by mid-March, a new EU Directive means public organisations, such as councils and schools, must pay bills for both goods and services within 30 days (a few exceptions allow 60 days). Most private businesses must settle invoices within 30 days, although you can agree to extend this to 60 days. Businesses that try to hold out beyond 60 days can't do so unless they can prove it isn't "grossly unfair" to the firm owed.
Businesses that pay later than these rules must pay compensation of at least 40 Euros plus interest at a rate of at least 8% above the UK base rate (currently 0.5%). If you need to quote this on your bills, the Directive is called the "Changes to the Late Payment of Commercial Debts (interest) Act 1998."
7. At some stage later in the year, the EU Consumer Rights Directive will become law, simplifying distance selling, online trading and work off-premises. We'll update you, so to see if you have to take action watch this space.
8. A new credit for R&D spend comes in this year (date tbc): for above-the-line spending, a 9.1% credit creates healthier-looking income for the company, directly increasing the taxable profit which gets offset against the company’s tax bill. Loss-making companies can then claim a repayment of the credit.
9. From April 2013 to March 2018, small companies who want to disincorporate can transfer business assets to one or all of the shareholders who want to carry on the business in unincorporated form, without paying the usual corporation tax . Assets must be worth less than £100,000 to qualify.
Health & safety and CRB checks
9. Early 2013: To reduce the regular expense of getting employees CRB-checked, the government's Disclosure and Barring Service (DBS) will launch an online update service so you can check any applicant's criminal record and/or their suitability to work in regulated activity with vulnerable groups, such as old people and children. You pay a small fee , but using the DBS will be faster and cheaper than paying for a new Criminal Record Bureau check every time a worker joins the organisation or switches activities. Applicants can also carry their checks between different employers.
10. By April 2013: Most businesses will be exempt from Health and Safety inspections, except those where the workers are at higher risk, such as building firms or if the business already has a bad H&S track record.
Georgina Harris is an author and editor.
More details on HMRC changes on their website.
The recent announcement by business secretary, Vince Cable, around changes to be made to unfair dismissal processes — and putting the emphasis on out of court settlement agreements — is one that should be welcomed by employers and employees alike.
Under current legislation, employers’ hands are tied in often lengthy HR processes that are painful, expensive and embarrassing for everybody involved. The announced changes would allow employers to have an honest conversation with underperforming staff members and as a last resort, pursue an “amicable divorce” by negotiating an exit. The legal changes will deal with the small proportion of cases where all other avenues have not worked out.
Both employers and employees will benefit from the new rules and from the freedom to have an honest conversation without fear of legal consequences. Additionally, by allowing any financial agreements to be made without going to a tribunal, an employee could benefit from three months’ pay and time to find another job, with employers benefitting from a general increase in the speed of the dismissal process. The new process would also cost employers less in pay to underperforming staff and would avoid having a potentially disruptive and unhappy individual around still being paid and damaging staff morale.
A more honest approach
Indeed, it is not unheard of under the current system for some managing directors to resort to ensuring underperforming staff are made to feel unwelcome in order to get them to leave rather than go through a lengthy HR process to try and remove them from their organisation. Although not common practice, this is a risky strategy and unfair for both parties — the employee in particular.
However, despite all of this, it is key to remember that one of the hardest challenges for any manager is that of managing poor staff performance and having to make the decision to let staff go. Contrary to popular stereotypes, most managing directors care passionately about their staff and find it very difficult to take somebody’s livelihood away, only acting on it as a last resort.
The role of a business leader
Prevention and effective management is key here. Managing directors are not immune to learning new things and taking on board fresh ways of doing business. They can benefit hugely from discussing issues, such as dismissal and ways to work with staff to manage performance, in a peer-to-peer environment with other business leaders, taking advice and applying it to their business.
In the case of unfair dismissals, when a managing director thinks he/she has tried everything, there may be one other unexplored solution from a peer member that may prevent someone from losing their job. The most important role of a leader is to create a direction that is meaningful for staff. It is the role of the leader to inspire their team to do what is needed because they believe in the business. Put the minds of these leaders together and the shared impact on business can be hugely beneficial.
Bob Bradley is chairman at MD2MD, which provides leadership development peer groups for SME managing directors and other business leaders.
Earlier this month, a Bill proposed by Tory MP, Gavin Barwell, which would repeal current legal provisions preventing people with mental conditions acting as company directors, passed through its second reading in the House of Commons. As well as broadening the boundaries of who will be able to take directorship of an organisation, this is part of a wider campaign aiming to remove discrimination on the grounds of mental health from the workplace, which will have an impact on SMEs.
Given the clamour for reducing red tape to allow small businesses and start-ups to grow, some may be concerned that this could be yet another piece of costly legislation. Yet there is no need for concern. Any legislation covering this is likely to be incorporated into the existing Equality Act, as it already has provisions for protected characteristics and it seems perfectly logical for mental health to simply be slotted within the existing framework.
It seems certain, therefore, that those with mental health conditions will be given suitable legal protection in the next couple of years. This legislation will hopefully bring the discussion about mental health to the front of people’s minds but it will not be enough alone to transform the existing stigma.
There will still be people who look at some individuals as different and make a decision based on that, whether that difference is mental health, physical disability or the colour of their skin.
A survey released recently by St Patrick’s University Hospital in Dublin found that 61% of respondents would discriminate against hiring someone with a history of mental illness on the grounds that they may be unreliable. Given that every year, one in four of us will experience a mental health problem, this is a massive amount of potential workers to exclude. Anyone that saw Channel 4’s World’s Maddest Job Interview will have seen the discriminatory opinions of the interviewers, yet the candidates with mental health conditions were those deemed best for the job roles.
So not only will discrimination against those with mental health conditions soon risk leading to an Employment Tribunal, but it also leaves those companies that continue to act in this way at a distinct disadvantage in the employment market as they eliminate a massive proportion of highly talented individuals from their workforce.
We should celebrate difference, rather than assuming someone can’t do something because of an opinion not based on fact.
Over the next few years, as well as changes in legislation, I expect to see great changes in people’s attitudes. Talking about mental health will help owners of SMEs make informed choices and allow them to support everyone in their workforce as, given the statistics, it is highly likely that at least one of their employees will be facing a mental health condition at any one time. A healthy, happy and honest workforce is likely to be far more productive and help those small companies grow.
Suzanne McMinn, head of human resources at Workplace Law.
Many small business owners are reluctant to take on staff members due to a perception that employment law is confusing, over-bearing and potentially extremely punitive. But many of these fears are unfounded or exaggerated.
Fair and reasonable employers who abide by their responsibilities generally only need worry about serial litigants, of whom the courts are taking an increasingly dim view. There are many steps that employers can take to reduce the chances of employment law-related disputes.
When advertising a job, it’s important that the advertisement does not contain any discriminatory requirements or preferences, other than skills and experience or elements which could be seen as constituting a “genuine occupational requirement” (eg the requirement of a white female actress to play the character of a white woman in a film). Similarly, job applications need to avoid any discriminatory references. Furthermore, candidate interviews and the job selection process in general must be conducted fairly and without discrimination.
Ensuring that both employers and employees understand their respective obligations and rights from the outset is crucial to help avoid disputes further down the line. A comprehensive and well-drafted employment contract is often all that is required to sidestep many of the pitfalls of employment law. As well as containing the official details of the employee and employer, it should also include the commencement date, hours and place of work, remuneration, holiday and sickness matters, references to any company policies or handbook, data protection rights and the disciplinary and grievance procedures (in line with the Acas code). The employment contract should be worded unambiguously and updated in line with the latest legislation.
The Equality Act 2012 consolidated much of the legislation relating to discrimination in the workplace. It’s vital that you understand your obligations as an employer to preventing any discriminatory behaviour and protecting your employees in this regard. To this end, it’s advisable to prepare an equality and diversity policy, as well as a bullying policy. There are specifics types of discrimination covered by the Equality Act, known as “protected characteristics”. These currently relate to: sex, race, age, disability, sexual orientation, religion or belief, pregnancy and maternity, marriage and civil partnership and gender reassignment.
Sickness absence and holidays
While many of the employment terms relating to sickness absence and annual leave can be included in the contract of employment, it can help to document processes surrounding any absences from work, in order to avoid any misunderstandings. Holiday request forms, an employee absence record, statutory sickness forms and a separate sickness and absence policy can all help to ensure that any time taken off by your employees is properly accounted for. After all, time is money!
Last week, following the launch of the London 2012 Paralympics, there was an excellent piece on the Guardian website that examined workplace obstacles faced by people with disabilities.
According to journalist Will Henley, there are 11m people with disabilities in Great Britain and only 48.8% of those of working age have jobs, compared to a national average of 77.5%. Is this shameful evidence that discrimination still exists in the workplace towards people with disabilities?
Lest we forget, employers must avoid discrimination when recruiting and managing their staff. Under the Equality Act 2010, employers might need to make ‘reasonable adjustments’ for employees with disabilities, perhaps by providing modified equipment or altering working practices and environments.
Even those people with disabilities who find jobs have limited options, it seems, with “non-disabled staff three-times more likely than disabled counterparts to earn over £80,000 and twice as likely to become board-level directors,” according to a 2010 survey by Radar (the Royal Association for Disability Rights), which has now become Disability Rights UK.
According to Disability Rights UK, people with disabilities are frequently overlooked for promotion. Their employer is also more likely to treat them unfairly, that’s if things have stayed the same since 2008, when the Fair Treatment at Work Survey suggested that 19% of people with disabilities had experienced unfair treatment at work, compared to 13% of employers who weren’t disabled.
By law, of course, employers mustn’t discriminate without justification against anyone on grounds of disability, which is defined as a “physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out day-to-day activities”. Employers must investigate whether a person could carry out the work following ‘reasonable adjustment’.
The test of discrimination is not what the employer or business owner intends, but rather how it affects those on the receiving end. A business might not realise it is discriminating, whether that’s direct or indirect discrimination.
Morality aside, being a more inclusive business can be good for your bottom line. According to the Office for Disability Issues (ODI), disabled people contribute more than £80bn a year to the UK economy and can make up a fifth of the average UK business’s customer base. “Despite these compelling figures,” it says, “the needs of disabled people are poorly addressed by most UK businesses.
“By ensuring disabled people have the same opportunities to use your business as everybody else you will gain new customers, increase customer loyalty and enhance your reputation.” You can download (PDF) a free guide published by the ODI entitled Growing your customer base to include disabled people – A guide for businesses, which tell you how you can make your business more accessible to people with disabilities.
Perhaps the greatest legacy of the London 2012 Paralympics will be encouraging business owners and others with outmoded misconceptions about people with disabilities to change their views and become much more inclusive.
From 1 October 2012, the government will introduce laws whereby employees must be automatically enrolled into pension schemes with the option to opt out should they wish. The ‘auto-enrolment’ scheme looks set to give millions of workers access to a pension scheme where one wasn’t already available or they hadn’t opted into it.
The automatic enrolment pension scheme is not a replacement for existing schemes. The only exception to this rule is where a plan doesn’t fit the minimum criteria, but these should be few and far between.
The auto-enrolment scheme is more specifically aimed at those who don’t have pensions, such as the low-paid shop workers and those who work for smaller businesses.
The auto-enrolment pension plans seem to be an ideological replacement to the stakeholder pension, which is something you have to opt into and even instigate of your own volition. The auto-enrolment pension is a scheme that is either provided by employers and their existing pension provider or by the National Employment Savings Trust.
The automatic-enrolment scheme will place anything up to 10 million new workers within the bounds of the scheme by 2018 and it covers a vast swathe of Britain’s working mass. It will directly affect anyone over the age of 22 who isn’t in a pension scheme, earns more than £8,105 a year and ordinarily works in the UK. This is a broad slice of society, unlike the more exclusive stakeholder pension plans.
If someone already has a pension plan, they will not be affected by the new regime and their policy will not be replaced if it is up to scratch. The legislation is designed to bring people into pension schemes rather than replace the old system and its associated schemes wholesale.
I’ll remember my holiday to Goa in 2006 for many reasons. The warmth of the people and their beguiling culture; the awesome flora and fauna; TV legend Nicholas Parsons and wife, who were also staying at our hotel; riding an elephant for the first (and last) time; delicious cuisine; oh, and the worst case of ‘Delhi belly’ I’ve ever experienced.
People will tell you it’s inevitable when you visit India, no matter how careful you are about what you eat and drink. The food poisoning I suffered was horrendous (I’ll spare you the details) and meant I was laid low in my hotel room. Although I lost a few days of my two-week holiday, stoically I put it down to bad luck, inevitability and a dodgy curry I’d eaten from a beachside restaurant. At no point did I think my employer should be made to pick up the tab for my misfortune.
I’m sure employers throughout the country would have been surprised (if not dismayed) by a recent ruling by the Luxembourg-based European Court of Justice – binding on all EU member states, including the UK – which dictates that employees who become ill on holiday have the right to claim back days they’ve lost. The ruling is the result of an appeal made by a Spanish trade union against a department store group.
The court ruled that it would be “arbitrary and contrary to the purpose of entitlement to paid annual leave” not to grant employees holiday time in exchange for time they were ill. Under the EU Working Time Directive, full-time employees have the right to at least four weeks’ paid annual leave, even if it coincides with periods of sick leave.
The UK has opted out of the Working Time Directive’s setting of a 48-hour limit on the working week – but there is no exemption on sick pay and holiday. UK employers of all types and sizes should take note.
You don’t need an honours degree in workplace malingering to see that the ruling potentially leaves UK employers wide open to exploitation by dishonest employees. How can it be proved the employee was genuinely ill while on holiday? And even if they were ill, employers are once again faced with additional costs, disruption and staffing headaches that many will find more difficult to stomach than a dodgy beachside curry.
There’s a lot of talk about the summer of sport and its potential for disrupting business as usual — especially in London where traffic problems are likely to be considerable.
Euro 2012, Wimbledon and the Olympic Games are all big distractions that threaten to take our collective eyes off the prize as we down tools to watch sport instead of getting on with our work.
A YouGov survey for Citrix found that that 41% of London SMEs expect disruption as a result of the 2012 Olympics, but only 21% have a business continuity plan in place.
The poll of more than 500 senior decision-makers of London-based SMEs also found that only 10% are adopting new working practices to minimise interruptions.
Of those businesses expecting disruption, 87% believe productivity will suffer, with lateness, cancelled meetings and absenteeism all cited as potential problems. Overall, 56% of SMEs expect more staff to work from home.
Law firm ELAS says that the summer of sport could cost the British economy more than £2billion in lost productivity as workers duck away from their desks or get stuck in Olympic gridlock.
Peter Mooney, head of employment law at ELAS, said: “There’s no doubt that this summer is going to be a fantastic one for sport, but for many employers it could turn into a very big headache. We know from past experience that productivity takes a dive when there’s a big sporting event that distracts workers. But the combined pulling power of all three sporting events will see the cost to businesses spiral over this summer.”
So what can small firms do to manage the next couple of months?
The most important thing is to prepare in advance for some disruption by letting staff know what their options are and by being flexible.
Make sure you remind your staff what the rules are regarding annual leave. Are holidays granted on a first-come, first-served basis for example? And do they have to give a certain amount of notice?
Make sure you understand your responsibilities and staff rights when it comes to requesting flexible hours or working from home. By embracing a flexible approach and giving your staff clear productivity targets, you’ll give them the chance to manage their time so that work doesn’t suffer.
There was a definite spike in levels of absenteeism during the hot weather in March this year. To avoid an epidemic of “sickies” this summer, reiterate your absenteeism policies — otherwise you may see an increase in staff calling in with croaky voices or rolling in at lunchtime complaining that the traffic was murder.
Of course, as a business owner, you make the rules and one option is to get a TV in the office so your staff can watch key sporting moments without having to take much time off. But you’ll need a TV licence for an office telly if you don’t already have one.
And don’t leave the TV blaring all day — you’ll have to have very clear guidelines about what’s acceptable to watch. There’s obviously a big difference between stopping to see the hundred-metres final and putting your feet up to watch a four-hour tennis match.
Watching online is also an option (but again you may need a TV licence). But you’re setting a very dangerous precedent if you let staff treat their computers as TV screens at work — before you know it they may be catching up on episodes of the Killing.
And that’s another crucial issue. Sport can bring us together but the chances are that football and athletics will leave some of your staff absolutely cold. If you make special dispensations to watch sport, should you be giving others time off to watch the Chelsea Flower Show or the Great British Bake-Off?
But if you agree that staff can watch a few key sporting moments in the office, it might be a very positive move — it’s a short break rather than a day’s lost productivity — and it could be good for staff morale and team-building.
So let’s wish every success to Team GB, Andy Murray and the England football team.
Read all our content on the 2012 Olympics and what it means for your business in our special guide.
Employment law can be complicated because it’s continually being updated. This can force all businesses to invest considerable time and energy to stay abreast of legislative changes. To help keep on top of some of the latest changes here’s what to look out for…
One of the key legislative changes that took place on 1 April 2012 was the increase in statutory payments. The rate for statutory maternity, paternity and adoption pay will increase from £128.73 to £135.45. Statutory sick pay will increased on 6 April from £81.60 to £85.85 per week.
Another significant change that came into effect on 6 April 2012 affected the right to make a claim of unfair dismissal. Previously, employees only had to have worked for their employer for one year to make a claim to an employment tribunal. That has been increased to two years, but will only apply to employees who join after 6 April 2012. An exception is if an employee can prove that the dismissal automatically falls in the scope of an unfair reason. The employee in this case does not require a qualifying period. An example of an automatic unfair dismissal is if the employee suffers unlawful discrimination.
Fundamental changes to the way you report accidents and injuries were also introduced on 6 April. RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) highlights your legal duty to report certain incidents in the workplace, which includes any injuries, disease, gas-related incidents, near misses or death. Previously, if a worker has an injury at work that resulted in them being incapacitated for more than three days, the employer had to inform the relevant enforcing authority, either the Health and Safety Executive or the Local Authority, within 10 days of the accident. From 6 April, both of these timescales have been extended. Now, the injured employee must be incapacitated for more than seven days before their employer must report it, while they only have 15 days after the accident to submit their report.
Jenny Graham works for Sage People Advice, which can help you make sure you’re keeping on top of your employment obligations
A landmark judgment by the Supreme Court has highlighted the issue of whether employers can justify plans to compulsorily retire someone.
The high-profile age discrimination case of Seldon v Clarkson Wright and Jakes (CWJ) on Wednesday 25 April sparked a good deal of media interest on radio and BBC TV.
The case concerned Leslie Seldon, a partner at a firm of solicitors in Kent, whom I represented at an Employment Tribunal. Leslie Seldon had appealed to the Supreme Court to be allowed to continue working after the age of 65. His case was taken on by the Equality and Human Rights Commission and by Age UK.
CWJ admitted that this was direct age discrimination but sought to justify its retirement policy on the basis that younger employees needed the opportunity to move up through the ranks, that it enabled the law firm to forward plan more easily and prevented the firm from having to remove older partners using more confrontational mechanisms, like performance reviews.
The EHRC & Age UK supported Mr Seldon's case as a means of seeking clarity as to the correct test for justification in direct age discrimination cases. The Supreme Court used the opportunity to outline for the first time the powers that employers have to force workers to retire. These include ensuring they have a legitimate social policy type aim — such as making way for younger employees — and the retirement is proportionate, ie appropriate and necessary. Whether it was proportionate in Mr Seldon's case will now revert to the Employment Tribunal to decide with the benefit of the Supreme Court's ruling.
I welcome the fact that the case has brought some clarity for employers in relation to the policies they need to have in place in order to compulsorily retire someone. However, whether it will be proportionate is something that will have to be looked at by each business individually.
It is quite a minefield and companies aren’t really going to know until they are challenged whether or not they are going to succeed in showing someone’s retirement was justified.
The Supreme Court has made it clear they will scrutinise businesses on a case-by-case basis. If a company’s plans to retire someone can be justified as a legitimate aim, then the question is — could it be achieved in a less discriminatory way? For example, at 66 or 67 rather than 65.
It is about balancing the needs of older workers and younger ones who want to come up through the ranks. But this is not the end of the story for Mr Seldon.
Whilst remitting the specific case back to the Employment Tribunal for further consideration, Justice Hale concluded more generally that in order to justify a policy it is not sufficient for an employer to show that it has an aim which is capable of being a public interest aim; they need to show in addition that it is actually a legitimate aim in the particular circumstances of the employment and it is proportionate in the circumstances of the business at the time it is applied.
Jo Davis is head of employment law at Buckinghamshire-based B P Collins LLP.
New law, new stress? Experts from Andrew Jackson Solicitors explain how to cope with this April’s new business law changes
From 6 April, new employees who start work with you will need to put in two years’ work before they can claim for unfair dismissal. Rules for your existing staff don’t change – they can still claim after a year.
Jonathan Dale, head of the employment law team at Andrew Jackson, explains:
“Employers should review and record which employees the new law applies to, and to whom it doesn’t apply.
“In making that assessment, employers need to remember that if they dismiss an employee without giving proper notice then the employee can bring their statutory notice entitlement into account when calculating whether they have the qualifying service to claim unfair dismissal.
“It should also be borne in mind that the extension of the qualifying period does not mean that an employer can dispense with short-serving employees with impunity. The legal protection offered to employees under UK discrimination laws is not dependent on length of service.
“Whilst an employee who is arbitrarily dismissed may not have the requisite service to bring an unfair dismissal claim, he or she may have some basis to bring a discrimination claim. Employers should take legal advice if they are in any way unsure about the risks involved in dismissing a particular employee. ”
New RIDDOR rules will change the reporting requirement for injuries so that, from 6 April 2012, only accidents resulting in incapacitation for more than seven days must be reported, and employers will have 15 days to do so. Previously, accidents resulting in incapacitation for more than three days had to be reported.
Jeff Swales, partner in the litigation and dispute resolution team at Andrew Jackson and member of the Health & Safety Lawyers Association, says:
“Employers should ensure that their health and safety documentation and procedures are updated to take account of these changes and that staff responsible for reporting accidents are made aware of the new system.
“Failure to report a reportable incident under RIDDOR is a criminal offence which may result in prosecution.”
Jonathan Dale and Jeff Swales of Andrew Jackson Solictors
As if ticket provision for London 2012 couldn’t get any more tricky, a new dustcloud around the Games box office is threatening to turn into a full-blown storm. The London Organising Committee of the Olympic and Paralympic Games (LOCOG) is insisting that even newborns – who wouldn’t have been conceived at the time of ticket allocation - will now require their own paid tickets to attend the Games.
Despite raised eyebrows from event organisers, including cinemas and theatres, who regard children under two years old as non-paying infants, and howls of protest from the public, LOCOG is standing firm. Now web forum Mumsnet is, unsurprisingly, complaining about the policy, which effectively prevents a breast-feeding mother from attending the Games.
This week the European Court of Human Rights looks set to enter the fray over whether or not this policy is actually discriminatory. Here’s what the 2010 Equalities Act says about maternity discrimination in public places and services:
(2)A person (A) discriminates against a woman if A treats her unfavourably because of a pregnancy of hers.
(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.
(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.
LOCOG defends its decision by pointing out that many major sporting venues operate the same policy. Does that mean that the organisers are in the right, or simply that, until now, these venues have not been challenged?
The court’s decision could well impact on this country’s small businesses. Small firms may have read the rule book on employment legislation and equal opportunities but haven’t yet applied the same legislation to the services they provide customers.
As for the Olympics, maybe it’s time they provided unlimited on-the-day tickets for all babies. After all, they are unlikely to be occupying their own seat and hogging all the hot dogs – but they may get the gold for loudest audience members.
Employment law will be reviewed in 2012.
While many dates are not fixed, one major change to go ahead will be that from April 2012, employees need two years’ continuous employment in a job to bring a claim for unfair dismissal (not one year as it stands currently). Tribunal procedure changes have also been announced:
Tribunals will be able to levy cash fines on employers who breach employment legislation in a way that has “aggravated features”, which are not defined but are likely to be non-accidental. Penalties will normally be equal to half of the total award made by the tribunal in that case (subject to a minimum of £100 and an overall cap of £5,000) and are payable to the state, not the ex-employee (s).
Other changes are planned, but not in force yet. They include introducing compulsory mediation and an increase in use of compromise (aka settlement) agreements, including agreements for Equality Act claims. In addition, the Government is considering special dismissal arrangements for firms with under ten employees, where unfair is replaced with compensated no-fault dismissal (compensation to be equivalent to redundancy, it is thought), but these changes are not yet certain.
So after November’s Autumn Statement, HR law for employers has changed. Again. As have pension rules. In very brief, here’s what you need to know and do now, plus advance warning on key dates for your 2012 diary
Currently, employees can usually only bring a claim for unfair dismissal if they have been continuously employed for one year at the time their job is terminated. As from 6 April 2012, the Government has announced the qualifying period will, in most cases, double to two years.
Nothing immediately. But bear in mind that some HR experts have warned that firms might see a rise in claims that don’t rely on unfair dismissal, such as equality and discrimination protection that employees have as Day One rights in any job. Make sure your equality policies are up to date and that everyone understands and follows them.
Firms with fewer than 50 employees will not have to start enrolling staff in new ‘automatic enrolment’ pension schemes (into which both employee and employer must pay monthly) until May 2015. The smallest firms will get until 1 February 2016 to enrol. The original start date for smaller firms was April 2014.
But the whole scheme will begin on time in autumn 2012 and all employers must still join it at some point. The larger the firm, the earlier the start date – firms with 50-plus staff will have to be enrolled by mid-2014.
New staging dates for small firms will be announced in January 2012. In the meantime, however, work out how many of your staff must be enrolled. Start budgeting for payments and admin costs for your firm. Look at your existing pension arrangements to see if they can be adapted for all employees, and if necessary start considering new schemes that fill official criteria. Ask yourself if your payroll and HR provisions can cope, and get ready for questions from employees. Stay aware of changes to the state pension age, too – this will rise to 67 in 2026 (not in the 2030s as planned).
2012 Diamond Jubilee gives UK businesses extra bank holiday
An extra bank holiday will take place on Tuesday 5 June 2012, with the late May bank holiday moving forward to Monday 4 June.
Check employment contracts to work out if you need to pay staff for the extra day off. Workers are not automatically entitled to be paid for the extra day unless their contract says so, as bank holidays can be included in the statutory paid holiday entitlement of 5.6 weeks’ (28 days’) paid annual leave for full-time workers.
But it depends on the wording of the employment contract – for example, if employees’ contracts state that they are due paid holidays including all bank holidays – eg “20 days’ holiday plus bank holidays” - they should be paid for the extra day.
From 1 October 2012, businesses will have the opportunity to defer 60 per cent of the increase amount of their 2012-13 business rate bills. The extra can be repaid equally across the following two years.
Apply for the deferral when your rates bill arrives next year.
Jo Davis of B P Collins joined Bev Hurley, founder of Enterprising Women, and the BBC Radio 4 Woman’s Hour team as a guest speaker last week (November 8), tackling the issue of ‘Women in Business – when is it legal to dismiss an employee?’
I was delighted to be asked to appear on Woman's Hour recently. I’ve dealt with a number of high profile employment cases and this was an excellent opportunity to talk about some of the major issues I come across, including employers who use bullyboy tactics at work and the need for open and honest communications in the workplace.
We talked about a range of issues, including the changes the Government is introducing from April 2012, which will increase the qualifying period for unfair dismissal claims from one year to two years and how this might impact on the number of claims being made.
It will give employers even longer to decide if the person they have hired is the best fit for the job, but employees will still have the right to bring unfair dismissal claims linked to their dismissal on other grounds, such as health and safety, and these can be made after just a month's employment.
Some listeners had written in with their workplace experiences so we discussed how bullying and harassment can turn into a case for constructive dismissal if a person feels forced to resign from their role. Bev and I agreed that open and honest communication with employees is important, giving staff the chance to improve their performance with the appropriate help, training and support of a good management team.
Finally, I think the presenter, Jane Garvey, was surprised to hear that those on maternity leave have greater protection against redundancy than their colleagues as they have to be offered a suitable alternative position, whereas other employees only have the right to be considered for alternative employment. Pregnant women are protected by unfair dismissal and discrimination laws, so it’s a brave employer who would try and terminate the position of a pregnant woman. That’s not to say it can’t be done in genuine cases but we would urge anyone to take legal advice.
Kate Russell explains how to treat short-term staff now the Agency Workers rules have given them more rights.
A piece of legislation likely to cause a substantial increase in the costs of long term users of temps is The Agency Workers Regulations. The Regulations came into force on 1st October, giving agency workers the same basic employment conditions after 12 weeks in a given job as if they had been employed directly by the end-user.
The rights fall into two categories. Day 1 rights for all agency workers apply from the first day of employment.These cover things like equal access to your facilities (such as kitchen facilities). You must also ensure that temps can access information on your job vacancies from the first day of their assignment.
The second category confers rights on workers who have spent 12 weeks in the same job. These workers will be entitled to equal treatment entitlements relating to pay and other basic working conditions, such as annual leave and rest breaks. To qualify the workers must spend 12 weeks in the same job with the same hirer. Pregnant agency workers who have completed the qualifying period will be able to take paid time off for ante-natal appointments during an assignment.
The Regulations apply to temporary agency workers; individuals or companies involved in the supply of temporary agency workers, either directly or indirectly, to work temporarily for and under the direction and supervision of a hirer; and hirers in the private, public and third sector. The agency worker does not need to be working for the agency itself; it is enough for the agency to supply the worker.
People who find work through a temporary work agency but are in business on their own account (where they have a business-to-business relationship with the hirer who is a client or customer), job seekers who find direct employment with a firm through an employment agency and individuals on secondment or loan from one organisation to another fall outside the protections of the Regulations.
The rights conferred by the Regulations are not retrospective. For those agency workers already on assignment, the 12-week qualifying period started on 1st October 2011. The right to equal treatment will not apply until an agency worker has worked in the same role for a hirer for 12 continuous weeks. A change of agency during the 12-week period will not affect a worker’s qualification. The qualifying period is triggered by working in the same job with the same hirer for 12 calendar weeks. A calendar week includes any period of seven days starting with the first day of an assignment, irrespective of how many hours the worker does on a weekly basis. A new qualifying period will only begin if the new assignment with the same hirer is substantively different and/or there has been a minimum of six weeks break between assignments. The general rule under the Regulations is that any break between assignments of six weeks or less, in the same role, shall not break ‘continuity’ for qualification purposes.
The Regulations provide for a number of circumstances in which breaks do not prevent agency workers from completing the qualifying period.
The most usual break in the qualifying period will be because an agency worker begins a new assignment with a new hirer, but this can also apply where an agency worker remains with the same hirer but is no longer in the same role. The qualifying period will also be broken where there is a break between assignments with the same hirer of more than six weeks, and the break is not one which ‘pauses’ the period.
An example of the type of break that will create a pause in the qualifying period would be a break of no more than six calendar weeks and the agency worker returns to the same role with the same hirer, or a break of up to 28 weeks because the agency worker is incapable of work because of sickness or injury.
The regulations also affect an agency worker’s pay. In order to meet the requirements, it is necessary for agencies and hirers to understand what agency workers would have received in terms of pay and basic working conditions if they had been recruited directly.
Some hirers are considering the use of the Swedish derogation (under which the hirer does not have to provide the same basic working and employment conditions if the agency has a contract of employment with the agency worker). This device means that the hirer does not have to bear the costs imposed by the Regulations. Instead, this would be the responsibility of the supplying agency. Amendments to the regulations mean that the requirement to pay the agency worker will only apply after the end of the first assignment.
Following her appearance this morning on Woman’s Hour, here HR Headmistress Kate Russell gives a few pointers on getting your recruitment right.
As your start up business begins to take off, it’s not always easy to think about and plan for recruitment of staff. Business needs in the growth phase can change quickly and the trick is to be able to make a dynamic response to these, so make sure any staff you take on remain an asset to your business and not a burden. No one wants to have to go through the time consuming recruitment process only to have to follow it with the painful and potentially costly task of redundancy and dismissal.
First of all, do your best to assess what your business actually needs. This means planning ahead, not just reacting to a heavy workload. If you’re still not completely sure what difference a new post might make, using agency staff can be a good way to go. It might cost a bit more initially, but you get to find out whether or not a particular role is really going to help your business in the way that you hope without making any permanent commitments. Remember that the Agency Workers Regs which come into force on 1st October give agency workers additional rights after 12 weeks in the same job, so ensure that if you go that route, you limit the usage.
Once you’re clear about what you need, set about finding the right person. Plan the whole process: you’ll need a job description, person spec, competence-based questions and, if you can, a means of testing that they can actually do the job. It all sounds, and can be, time consuming, but it’s far better to plan carefully and spend the time at this stage of the process. The more objective you can be, the less likely you are to end up with an accusation of discrimination (there are a few ‘bounty hunters’ out there!).
You may not have started your own business to end up managing staff, but get this right and it could be the best investment you ever make.
To misquote a recent television commercial for California…. “People have a lot of misconceptions about [employment tribunals] and most of them are wrong…” – I always thought that all misconceptions were wrong, otherwise they wouldn’t be misconceived. But California has different rules, and so does the Employment Tribunal.
Getting a good result in an employment tribunal is one of the most satisfying parts of my job, so it pains me to say that an employment tribunal hearing is not an experience that I would wish upon any employer. It is a tiring, draining and fundamentally risky place to be for any employer.
I have a lot of experience of representing employers in employment tribunals, and I am often asked whether employment tribunals are biased against employers (or indeed I may be told that they are). But this is a misconception (and yes, it is therefore wrong).
There are judges and tribunal members who are more likely to look at things from an employee’s perspective, but the opposite is equally true. Having said that, an employment tribunal’s decision is as likely to turn on believability (even likeability) of a witness as much as on the evidence, and the mood in a hearing can change like the wind.
That is one reason why it is so important to have legal representation at the hearing and throughout the process, even though sometimes even that won’t be enough. Ultimately though, with the right preparation most employment tribunals will get it right most of the time.
The difficulty is that it is impossible to predict with certainty how things will go on the day. How things should go, is not the same as how they will go. This is not so bad for the Claimants (employees) who have little or nothing to lose and are often without legal representation. The employer, on the other hand, will have incurred legal costs, loss of management time, and reduced productivity - even if they win. So, do you feel lucky?
The risk and the cost often rest wholly with the employer. It is for this reason that you could say that the system is loaded against the business, which has no choice but to incur time and expense in defending a claim, and to that extent you could say that the system is biased against employers. So maybe that is a misconception that is right? (sic)
Matt Huddleson is a specialist UK employment lawyer and law firm partner with Foot Anstey and Wordpress law blogger.
What you need to know before that croaky phone call….
Eskimos have, it is said, 200 words to describe the different types of snow. The British have a similar number to describe not going to work: pulling a sickie, swinging the lead, bunking off, having a duvet day, as well as the plain vanilla description: skiving. I mustn’t forget my wife’s personal favourite: business development. Our creativity for thinking up euphemisms for taking unauthorised time off work is matched only by our propensity for bizarre excuses to explain unauthorised absence.
A recent Price Waterhouse survey of 1,190 people reported one in three people admitted to having lied to take sick leave, costing British business up to £32 billion a year. Most people skived off because they were bored or depressed. In many cases they didn’t see it as being dishonest because they thought they were owed it by their employer for having worked hard. For 21 per cent of respondents, family was the real reason behind pretending to be ill, emphasising the importance of flexible work practices as a means of reducing absenteeism.
Illness was the most common excuse given and some people admitted faking symptoms around the office in preparation for pulling a sickie. It reminds me of a friend’s father (now sadly deceased) who would, every now and then, get a flare up of the “old malaria” and have to take a couple of days off, much to the bemusement of his employers in St Albans (he had, of course, contracted malaria whilst in the Army on duty in the Far East during the War and, apparently, it does recur every now and then). If I remember correctly (and probably not, because my memory isn’t what it was these days) Bridget Jones’ method for taking a sickie was to announce she had an appointment with her gynaecologist. That ensured no further questions would be forthcoming from her, male, boss.
On the subject of dodgy memory, my favourite excuse in the report was given by the person who claimed amnesia as an excuse for not attending work; what, they forgot where they worked? Or that it was a weekday and they had to get up? A close contender was the man who said he had to take his dog to the vet, having previously told his employer the previous week that it had died. Other excuses included having being hit with a dart in the back of the head (sounds quite nasty, actually), injury during sex and someone who said their dentist had diagnosed early signs of dementia “in their gums”.
If you’re thinking of pulling a sickie but can’t think of any good excuse then, never fear, there’s an app called, appropriately enough, “skiver” to help. You put in how many days you want off and it will come up with an appropriate and plausible sounding ailment and list of symptoms to cover you. Fancy one day off? Have a migraine. A week? Try a dose of Chronic Fatigue Syndrome. Six months? Bubonic plague, perhaps? Helpfully the app will also generate an email or text to your boss so you don’t have to break the bad news, which might be embarrassing if you’re phoning from the pub. We’re not told how sophisticated the messages are but I hope it doesn’t say “I am suffering from housemaid’s knee today and won’t be in. Signed My Mum”.
Employees should also beware the schoolboy error made by one Kyle Doyle in Australia a few years ago. He was man enough to phone his boss to say he was unwell and then updated his Facebook status to read “is not going to work. Fxxx it, still trashed. Sickie woo!!!” whilst forgetting that his boss was one of his friends on Facebook. Silly. Unemployment followed.
Employers - don’t despair. There’s an anti-skiving app for you called Crystal Ball. It is designed to cut down skiving amongst non-office based workers by tracking them via the GPS on their mobile phones whilst out and about. Ostensibly the idea is to keep a watch on expenses and mileage claimed, but the wider use for it is clear.
The law for temporary staff has changed yet again - if you hire seasonal workers or take on help to cope with busy periods, the new rules for temps could mean extra cost. As of 1 October 2011, the Agency Workers Regulations gave temps and agency workers some of the same rights as your full-time staff from their first day on the job. After three months (12 weeks) in the same job, the rules granted your temps the same pay and overtime rates as your permanent workforce, as well as paid holiday.
In 2010 the Government estimated that half temporary assignments are longer than 12 weeks, which means that a lot of businesses round the UK had to prepare in advance. However, a few simple steps will prepare you for the new law and could save you money.
Step 1 – Tell HR and the managers who use temps about the legal changes. The new principle is that after 12 weeks an agency worker should be treated as if they had been recruited directly. Part-timers and temps who take a break during the assignment also qualify for the rights - for instance, even if a worker took a break for up to six weeks but came back to the job, only another six weeks would pass before he/she can claim full rights.
Make it clear that from Day 1 your business costs could rise to include everything from extra chairs in the canteen to a bigger car park. Explain to those who manage temps day to day that when an agency worker is kept on for a few weeks longer than planned, costs will rise further to provide them with paid holiday (but not pensions, sickness or parenting pay).
Step 2 - Establish that the temps you call in are really necessary. If you hire seasonally or ad hoc to cope with unexpected short-term sickness, no problem. But if it turns out that you are regularly calling temps in because you are endlessly understaffed or to save paying overtime, you may find the new rules mean you’re no longer saving money.
Consider the pros – flexibility, for example – of using temporary staff v. the cons – higher training and admin costs, for a start. Would your business be better off if you simply hired another permanent employee? Bear in mind, however, that the rules only apply to workers who come via an agency – the self-employed who provide your business with services don’t qualify for new rights and neither do Managed Service Contract workers (such as contract cleaners).
Step 3 – You, not the job agency, are legally responsible for making sure your temps are getting access to all the facilities at work from their first day. Tell agency workers they are free to use the canteen, car park and any other facilities, such as a creche. Put up a noticeboard with any job vacancies so everyone can see it – temps have a right to know about internal positions on offer. If you don’t, you could be liable to legal action.
Step 4 - For longer temp contracts, send your terms and conditions to the job agencies you use so they can match them to make sure your temps are getting equal treatment from week 13. The terms to mirror are those your firm offers to a permanent employee who has just started in that job – if that looks like a cost problem, consider introducing qualifying periods for permanent staff. Don’t forget that pregnant agency workers must also be allowed to take paid time off for ante-natal appointments.
As time goes on, make sure that any changes you make to the terms and conditions of permanent employees are mirrored in contracts with temporary staff who have achieved the 12-week service requirement.
Step 5 – Be wary of anti-avoidance rules. As the Regulations say themselves “there is nothing to prevent an agency worker being released after say 11 weeks or for assignments of 12 weeks to be the usual practice of any hirer.” But firms should note that a pattern of firing and re-hiring temps that deliberately deprives them of their entitlements is easily spotted and won’t go down very well at an employment tribunal.
Georgina Harris, Law Donut editor
Georgina Harris reveals the growing trend for grown-ups to switch off – and why it could help your career
Always a reliable source of new fashions, the latest craze in social networking is… walking away. May 2011 figures saw over 100,000 Facebook users in the UK deactivate their accounts –six million US users also left, never to return.
Site monitors Inside Facebook revealed that despite vast growth in developing countries, newbies worldwide are holding back – just 11.8 million new users joined in May, down from 13.9 million users in April. Countries such as the UK, the US, Canada and Russia, with their millions of veteran Facebook fans, are starting to lose their user base with a wealth of site deregistrations, or Facebook suicides. Why?
Industry experts have a simple answer: adulthood and the right to privacy. But Facebook doesn't agree, which is the nub of the problem. This month, for example, UK Facebook introduced face-recognition software that checks online photos and suggests who they might be – identifying the site’s users without their permission.
Now if you’re on someone else’s page and sporting a bikini or less, Facebook will try and identify you with a name tag. Even committed tech fans wince a bit at this latest cleverness - Will Heaven, assistant comment editor at The Telegraph, blogged: “That midnight skinny dip at the Majorca beach party was a laugh – but there’s no need to share it with your boss.”
Being broadcast peacefully asleep in a phonebox dressed as a chicken is funny for teenagers at 15, and funny for everyone at 70. But most of us of working age want to control who sees the joke. Risks to professional integrity, and more, are obvious. Legally, cases of unwise and absent-minded social networking, whether it’s a snap of a small swimsuit or a small snap at a client, are growing too fast to ignore.
Facebook has defended itself, saying the software only offers tags with ‘high confidence’ that the names are the right ones. That just makes it worse if you’re frantically denying owning a chicken suit.
Various privacy groups are petitioning the EU for restrictions on how social networking sites use, gather, and publish information on people’s private lives. But until the law changes, many users aren’t pleased. Earlier last week, when Facebook admitted the photo-tagging software had launched, one grumpy ex-user Tweeted: “Facebook switches on facial recognition by default, without telling anyone. Not cool. On any level, why would you trust that site? Glad I left.”
People over 25 now realise that the 20 hours they spend a month on Facebook Walls probably aren’t anything like as bad for their career as Facebook itself broadcasting their private moments to passing clients and colleagues. Could it be that those who take their work seriously have one new option – user-generated discontent?
Georgina Harris, Law Donut editor
Michael Scutt explains how to deal with the pesky legal technicalities behind unusual uses for the stationery cupboard…
You know how it starts: the furtive glances, then the heavy smouldering looks, standing up tall, pulling your tummy in, thinking “I am sex, shall I make my move?” then the full blown look ‘em straight in the eye approach, perhaps even a pout. Then someone walks into the washroom and says “why are you staring at yourself in the mirror?”
Narcissism is not a desirable trait in a person, but in the workplace it may be less dangerous than falling madly in love with one’s colleagues. Office romances may be fine whilst the birds are still cooing sweetly and the flowers are in bloom, but what happens when the adorable songbird of love is eaten by the evil Cat of jealousy and thrown up on the cold hard patio of vanquished dreams? Tears all round that’s what.
I came across an article in an online journal called Here is the City a couple of weeks ago and that referred to a “recent survey” which produced some interesting statistics about bankers and their affairs. The post does not reveal who carried out the survey, so perhaps some of these statistics should be taken with a pinch of salt;
72 per cent of bankers had had an affair. 82 per cent of male bankers had had an affair with a more junior work colleague and 26 per cent with their PA/Secretary,
The average length of affair for a man was 21 days, comprising 4 meetings at an average cost of £352 per meeting, whereas the average affair for a female banker was 136 days, incorporating 31 meetings. The survey doesn’t record how much female bankers spent on presents etc. I’m not sure how these statistics tie up with each other.
What motivated these people to have a workplace affair? 12 per cent said they played away because their wife no longer understood them, 17 per cent for the thrill, 5 per cent said because they could and a rather ungallant 24 per cent said they did so because their wife now reminded them more of their mother (“Yes dear, now put away your Ferrari, it’s time for your bath … do be a good boy”).
Workplace affairs have always happened and no doubt will continue just as much in the future, perhaps more given the increasing amount of time that we spend in the office away from our official significant others. Affairs can give rise to obvious conflicts of interest and distract attention away from business, particularly in an office environment. Some employers place restrictions or try and discourage them, which is probably prudent given the unpleasantness that can arise when everything goes sour.
Employers would be well advised to have a clause in the contracts of employment they use, or introduce a policy governing workplace affairs if they want to try and regulate or prevent them. For instance, options include requiring disclosure of anything more than a platonic relationship between two employees or stating that the respective parties will be re-assigned into other roles away from each other if a romantic relationship develops. Arguably when senior employees are involved a workplace relationship can be a breach of the duty of fidelity owed to the employer given the potential conflict of interest. Don’t forget that both heterosexual and homosexual relationships need to be covered by any such policy to avoid accusations of discrimination on grounds of sexual orientation.
Of course, it is when one of the participants in the relationship has to make the other redundant that things can take a nasty turn and allegations of unfair selection (and thus unfair dismissal) can arise. It can get worse too, a claim for sex discrimination might also be made.
So much for employers. What should employees do if “one thing leads to another”? In the first instance check to see whether the employer has a policy (contractually binding or otherwise) governing workplace affairs. If there is then careful thought needs to be given to whether it applies to your situation. Does a one night stand “qualify”? Failure to comply might lead to disciplinary proceedings but, on the other hand, owning up to a romantic entanglement will probably be embarrassing and potentially disruptive to career trajectories. Therein lies the problem – failure to disclose when required to do so could be even worse if everything goes Pete Tong in due course.
For those employees who do get drawn together and don’t want to share their joy with the world then there are only two bits of advice to give: (1) Remember that discretion is the better part of valour. Be discreet - don’t flaunt it even if the other party is the hottest thing since the poptart. Keep professional in the office and try not to let your infatuation with the adored one become apparent. The other tip, which follows on from the first is to remember the toast that the sailors on Shackleton’s heroic but unsuccessful trip to the South Pole in 1914 used to give to each other every week: “To our wives and girlfriends, may they never meet”. The chances of this happening will be much reduced if you don’t broadcast the relationship on Facebook or post incriminating photos.
Better still, don’t get involved at all.
Michael Scutt, Dale Langley & Co