Will Brexit mean “a Bonfire for Workers’ Rights”?

Both sides in the Brexit TV debates made dramatic claims about the repercussions of the referendum result.  At one heated point Angela Eagle, the Labour MP, exclaimed that a vote to leave would mean “a bonfire for workers’ rights”.  This was one of the slogans on Vote Remain posters.

Now we’re calming down again, how likely is it that once the terms of the UK’s exit are negotiated, all European employment law will be thrown out, and there will be no employment rights left in the UK?

To start with, most employment protection rights, especially unfair dismissal and the employment tribunal process were created by the UK independently without the EU.  Equal pay, race and disability discrimination laws all existed in some form in the UK before being imposed by Europe, and there was a UK right of return from maternity leave long before recent EU parental rights laws.   These fundamental pieces of legislation won’t change.

On the other hand, some EU legislation is very unpopular with UK businesses and if anything is tweaked to make it more commercially acceptable or repealed entirely, it’s likely to be these three:

·         TUPE: the principle that employees should transfer when a business changes hands or is contracted out is well recognised, but the government might choose to make it easier to harmonise employment terms within the business.

·         The Working Time Regulations, governing areas such as employee working hours, holidays and rest breaks, is often felt to place an administrative burden on employers and undermine labour flexibility.  The most likely tweak is to remove the 48-hour limit on weekly working hours and the related record-keeping.  Another is to repeal the limits to accrue and carry over holiday pay.  New rules could specifically exclude fluctuating payments such as commission or overtime from calculations of holiday pay, a doubtful recent ruling from the EU.

·         Agency Workers Regulations, requiring agency workers to be paid the same rate for a job as permanent staff after 12 weeks, are  seen by many employers as an unwieldy problem - and aren’t noticeably popular with workers either. Repealing these would reduce business costs and record-keeping requirements.

Discrimination laws and family friendly working legislation seem far less likely to be affected. Employment rights such as family leave, discrimination law and even the right to paid holiday are now widely accepted; indeed, family leave rights in this country go further than required by EU directives.

If you aren’t confident that your business is complying with these pieces of legislation right now, contact us right away on enquiries@thehr.co.uk!

In any case, as we know nothing will change legally for some time.  It will take us at least 2 years to extricate the UK from the EU, and perhaps considerably longer than that to agree exit terms.  Then start repealing and tweaking. Something at least to look forward to….

 

In the meantime, European imposed legislation still applies.  If you have some niggling worries that you may be breaking employment law unintentionally within your business and not meeting your legal responsibilities, then get in touch with The Human Resource on enquiries@thehr.co.uk. We’ll be pleased to arrange an initial review of your existing practices.

 

 

Heading off employment tribunal claims

Since May 2014, any individual who wants to issue a claim in the Employment Tribunal must contact ACAS (The Arbitration and Conciliation Advisory Service) to follow the early conciliation procedure (EC).  The idea is to reduce the number of Tribunal claims, by offering a quick and simple way for individuals and employers to settle disputes before issuing a claim.  It can also reduce the cost to employers of defending frivolous claims. 

And it seems to be working.  According to research published by ACAS, EC has helped to head off 7 out of 10 Employment Tribunal hearings.

There may well be other reasons for the fall in Tribunal cases.  The claimant must pay a fee to issue their claim - £250 for unfair dismissal plus a further £950 if it goes as far as a hearing.  Even if the claimant wins, the amount that can be awarded as compensation for an unfair dismissal is limited to £78,962 or 12 months gross pay (whichever is lower).  There is also the stress involved in the process and the risk of losing for claimants to consider. 

Whatever the reason for the low level of claims, EC is compulsory and it is here to stay.

If an individual has a potential claim against you as the employer as a result of a workplace dispute, here are some important points about how EC works: 

1.       Contacting ACAS is compulsory for the claimant.   If they don’t do this, their claim will not be accepted by the Tribunal. 

2.       Early conciliation is free.  If successful, it will save the employer the time and expense of defending the claim.

3.       ACAS does not give legal advice.  ACAS will talk through the issues with both sides separately by telephone and discuss any proposals, but will not give legal advice or advise whether the claimant should accept any offer.

4.       You may not know if an employee has contacted ACAS because they can tell ACAS not to contact you.   This would mean that the first you knew of a claim would be receiving the ET1. 

5.       Negotiation is voluntary.  At any time during EC either side can decide that they do not want to negotiate.  EC ends and ACAS issues a conciliation certificate.  The claimant can then issue their claim. 

6.       There is a time limit.  EC will end after one month if no agreement has been reached, although this can be extended once, for two weeks. 

7.       Any agreement is binding.  If agreement is reached, both sides will sign an agreement called a COT3 setting out the amount that the employer agrees to pay to the claimant.  The claimant will not then be able to issue a claim in the Tribunal about that dispute.

8.       There may still be a claim.  If no agreement is reached, EC will end and ACAS issues a conciliation certificate.  The claimant can then bring a claim in the Tribunal about that dispute.

If you are contacted by ACAS or receive a Tribunal Claim, it is important to act quickly. If you want to defend the claim, you must respond to the Tribunal within 28 days. 

This is a Guest blog by Alexandra Robinson of Cook& Co who can act on your behalf as employment solicitors during early conciliation and represent you during any Tribunal process.  For responsive, commercial advice about employee claims, early conciliation and the Employment Tribunal process, please contact Alexandra Robinson: alexandra.robinson@cookco.co.uk

Managing conflict at work

Friction happens naturally in organisations.  It can stimulate lively, fervent debate about issues – and lead to improved organisation, better results and improved customer service. 

But when that friction is personal conflict between employees, it can waste energy and increase stress levels, eventually reducing people's productivity.  Employee conflict can quickly spiral out of control if it’s not dealt with in the right way: employees leave, there are more mistakes and customer complaints, and more sickness absence.

The good news is, as a manager, there’s a lot you can do to minimise its impact and defuse situations skilfully before they become real business concerns. 

A recent UK study has shown that most managers typically spend about 3 hours a week dealing with employee conflict in some form or other.  In some companies it’s over 25% of their time.  Here’s how to make the most effective use of that time:

Get the timing right

Once a conflict comes to your attention, don’t allow things to drift.  People can sometimes sort things out between themselves as adults given encouragement and guidance, but the longer it’s left to build, the more difficult it becomes to deal with.

If you’re intervening, set a time and place to speak to the employees involved in a confidential setting.  Meet them separately if things have become fraught.

Facilitate a resolution meeting

Meeting to help resolve conflicts between people in your team involves difficult conversations that you’ll need to manage carefully if there’s to be a positive outcome:

• Prepare your opening remarks carefully.  Outline the issue in an objective way, describing your own perceptions of the conflict, how this makes you feel and why the situation is important to you and to the team. 

• Invite the employees to do the same.

• Make sure both sides of the story are heard. 

• To help people to stay less emotional and keep things in perspective, ask closed questions to establish the facts (who, what, when, where, how) 

• Encourage both parties to listen to each other and understand how the other sees things. 

• Reflect back what you’re hearing, using phrases like “Let me see if I understand you…” or “It sounds like...”  Empathy absorbs tension.

• Find common ground, such as the greater good of the team. Encourage compromise and co-operation.  Agree what has to be different if the conflict is to be resolved.   

Build a respectful workplace culture

Lack of respect is a major cause of conflict at work - 61% of employees cited this as a major gripe in a recent study.  Conflicts are much less likely to happen in a workplace with a culture of respect, that’s why getting a few things right will keep infighting to a minimum: 

·         Managers act as role models and ensure everyone feels valued and supported

·         Employees have regular one-to-ones with their manager where their concerns can be heard

·         Any criticism is made in private and not aired in front of the whole office

·         Praise is given where deserved and employees are recognised for good work

·         Your business is as transparent as possible, with no one kept in the dark about company news, performance or procedures.

·         Managers have confidence to deal pro-actively with any disrespectful name calling and unfriendly cliques they come across in the workplace. 

The Human Resource helps managers with employment problems and handling difficult conversations.  We can provide a qualified workplace mediator to resolve conflict situations in a structured way that has been shown to work.  Contact us today on 07884 475303.

Managing Difficult Conversations with Coaching

How you manage a difficult conversation at work can have a lasting impact beyond the immediate conclusion of that conversation; a shift in working relationships, a reputation built on how you deal with these things and the motivation and engagement of the employee thereafter.

In my coaching and development work I focus on the need to better understand ourselves in order to understand others and manage the situations we find ourselves in, enabling us to:

• Handle ourselves differently during these tense times
• Read the signs of developing situations, intervene and diffuse early
• Remove the emotion by focussing on the factual, and
• Ask inquisitive questions to better understand the situation from the other’s perspective.

A key thing to remember in these situations is that opinion is not fact, opinion is owned by that individual and opinion is absolutely right for that individual at that time.  Why is this important to appreciate?  Because during times of conflict we can become preoccupied with disagreeing with someone who has a different opinion to ours to the point that we can miss the underlying messages driving the conflict in the first place.

If you are involved in the conflict yourself, stop, take a breath and ask yourself these questions, be honest with yourself in your answers:

• Is this having an impact on the team, the company, an individual’s  effectiveness and productivity? If yes, then it needs dealing with.
• What is your role in this situation? Are you creating the conflict or keeping it going?
• In resolving the conflict, you may need to change your perspective, are you prepared to do this?
• What is the true, factual, element to this conflict, or is there a personal aspect?
• What might the situation look like from the other person’s point of view?

Choose your battles, what will you hope to gain by pursuing this? What could you lose?

If you are the manager intervening in a conflict between others, here are some of the most useful questions you can use to coach those involved and help drive an objective conversation about it:

• “Tell me how this has affected you.” Encourage everyone involved to share this, it moves a focus onto the working relationship and helps to identify what the triggers were in the first place, which in turn helps to avoid these in to the future.
• “What would you like to have happen?” and “what does this look like?”  This shifts thinking and behaviour to the positive, focussing on what they do want instead of what they don’t.
• “What would it take for us to move on? How do we do that?” Bringing the ‘we’ into finding a solution is moving forward, reassuring that you will all work on a resolution together.  Also, when ideas for a resolution are drawn from individuals, and these are then implemented, there is a greater sense of commitment and involvement, rather than having a way forward imposed upon them.
•  “What is most important to you?”  Enabling you to get to the bottom of the real issues behind the conflict.
• “What else?” Always good questions to ask until you feel they have shared everything they need or want to.

This is a Guest Blog by Natalie Watkins of NJW Coaching & Development who partners individuals and groups, empowering them to become the professionals they aspire to be through coaching, bespoke designed and delivered training solutions and Insights Discovery Personal Profiling.  Get in touch by calling 07798 932571 or emailing info@nataliejwatkins.co.uk

Expensive nicknames

We've all heard colleagues being referred to by amusing nicknames at work - maybe even to their face! - and it might seem like light-hearted banter that keeps the wheels oiled.

But if the nickname refer to any of the legally protected characteristics (like age, race, sex or disability) and if things turn sour with a problem dismissal or redundancy, then the nickname can turn out to be very expensive indeed for you as an employer.  It can be quoted at the employment tribunal as evidence of illegal discrimination and will increase the amount you have to pay out quite significantly.

In March "Gramps" joined "Yoda", "Borat" and "Sooty & Sweep" in the range of workplace nicknames quoted by claimants to employment tribunals as evidence of illegal discrimination – contributing to large payouts when their claims were upheld.  The Bristol employment tribunal has awarded more than £63,000 for age discrimination to a salesperson nicknamed “Gramps” by his younger colleagues and later, after ageist customer complaints, dismissed.

The “Gramps” nickname was given to Mr Dove by the Head of Sales.  He referred to Mr Dove as “Gramps” both in person, in front of others and by email. After a customer suggested that Mr Dove was “old fashioned”, “long in the tooth” and had a “traditional” approach out of step with their business needs, some of his accounts were given to the Head of Sales.  Mr Dove was then dismissed. 

 

In his claim for unfair dismissal to the employment tribunal, Mr Dove put the nickname forward as strong evidence that the company had ageist attitudes and claimed age discrimination too.  In upholding the claim, the employment tribunal took into account the “Gramps” nickname, saying it suggested that ageist attitudes were tolerated in this workplace.  The tribunal found that Mr Dove’s dismissal was influenced by the customer’s "discriminatory and stereotypical attitudes" that the employer had adopted without further enquiry: it should have investigated what Mr Dove was actually doing rather than dismiss him based on the customer’s attitude.

The outcome was that the employment tribunal found Mr Dove suffered discrimination in the workplace and was ultimately dismissed because of his age. He was awarded a total of £63,391.

Other examples where workplace nicknames have been used as evidence to bring successful discrimination claims include:

• “Yoda” as evidence of age bias as part an age discrimination claim that the employer had made the claimant redundant because he was close to retirement.  
• “Borat”, as evidence in a Polish welder’s race discrimination claim on the basis that the name evoked stereotypes about eastern Europeans. 
• “typical Irish” used repeatedly by colleagues to refer to an Irishman working in England.  When he made a mistake he was nicknamed “thick Paddy”. He was dismissed after complaining to his employer.  The tribunal concluded that he was dismissed “principally because he was an Irishman who would not take Irish jokes lying down”, and a race discrimination claim was found in his favour.
• calling an older worker the “old fogey” or calling a younger worker the “stroppy teenager”.

The cases show how important it is for managers to put a stop to employee nicknames whenever they run the risk of referring to any of the protected characteristics under The Equality Act 2010.  It doesn't matter if the employee doesn't complain at the time about the nickname, as Mr Dove didn't.  He was even known to refer to himself as Gramps.  The intention - such as teasing or joking – is irrelevant too.  

The defending employer said in the "Yoda" case said he could see no problem with age-related banter "if everyone is getting on".  Wrong.  Nip it in the bud and make sure people know why.