Changing terms of employment properly

 

All your employees have written terms of employment, right?  Everyone should have one within 2 calendar months of starting work with you.  (If not contact us of course)

But they aren’t written in tablets of stone, and over time in any business some of the terms of the employment relationship will need to be changed.  Perhaps to reflect changes to the wider business environment, perhaps to tighten up any rules because you can forsee problems – or perhaps to be more generous by improving benefits. How do you go about making the change smoothly and properly?

It depends on the terms you’re changing.

Some changes will be accepted without question and cause no problems.  For example, if you’re awarding a pay rise or changing a job title when someone is promoted, simply tell the person about the changes face-to-face in a confidential setting and confirm it in writing with a short letter.  Include the effective date of change and the sentence “The other terms of your employment remain unchanged”.  End of.

If you’re making any other significant changes to contractual terms, it’s essential that you can show that you’ve acted reasonably as an employer, both to head off legal problems and also to keep your employees on-side.  The Human Resource provides tactical and strategic support to employers handling these situations.  This will include:

·         Follow a proper consultative process. Clearly explain the changes you’re considering and the reasons to the affected employees.  You could communicate this at a group meeting with the details confirmed in a follow up by email, and give people an open door opportunity to discuss issues on a one-to-one basis with you.  Listen to what is raised and demonstrate you’ve taken it on board.  If you meet objections or even outright rejection of the change, listen to the reasons and make some concessions where it’s reasonable. Assess the impact of the change on the employees and consider them carefully.

·         Ensure you can justify the change and the selection of the individuals whose terms are to change.

·         Give people time to adjust to the change and help them to make the adjustment.  For any significant change, three months is usually considered reasonable notice.

·         Ensure you have a good reason for exercising your power to change a contractual term, considering any problems or difficulties it may cause the employee.  Look especially sensitively at any reduction in pay or benefits.

If you aren’t able to obtain consent, you could impose the contractual change anyway, but the employee can:

·         Stand and sue, i.e. work under protest and claim breach of contract.   If the change involves pay there could also be a claim for unlawful deduction from wages. 

·         Resign and claim for constructive dismissal.

In the last resort, you could turn to the nuclear option that health minister Jeremy Hunt was considering to resolve the dispute with the junior hospital doctors’ contracts.  This means terminating the contracts of employees who won’t agree to the change by giving them notice and immediately offering them re-engagement on new terms and conditions.  Such a drastic course of action will have an irrevocable impact on the trust between employee and employer, but in some circumstances it may be your only option and worth the legal risks and damage to morale.

 

Leading your staff through change

 

We are certainly experiencing dramatic change in our country at present following the Brexit vote and it’s interesting to watch how people are reacting and responding to it. The country's leadership is in disarray and no-one is clearly showing the way ahead so speculation is rife and emotions are running high. All this is on a grand scale and on the world stage, so let’s learn some lessons in change management as we observe the process. It’s always better to learn from other people’s mistakes if we can!

How can we take our own organisations through change in a way that will bring positive outcomes and minimise the negative outcomes for all concerned?

 

As managers or directors our focus of concern will be the business as a whole and our instinct to give people lots of information about the future, but we should always think about what we would be concerned about ourselves if we heard that change is coming.

Putting ourselves in other peoples’ shoes will go a long way towards ensuring that we do the right thing.  We’d probably be wondering – how will this affect me – my job, my future etc.?  As soon as we hear news of change, our minds start going through what it will mean to us. That means that we probably stop listening to whoever is presenting all the facts and figures because we’re too busy worrying about our own future.

The PIE recipe is a very helpful model for leading your people through change: Participation, Information and Enthusiasm.

Participation

The more involved we are in something, the more committed to it we are. Employees may not be able to make decisions about the actual change, but should be as involved and empowered as possible in how the change is rolled out in their area.  Problem-solve as a team - it's a great way to think through the implications of the change and what needs to be done to make sure that everything continues to run smoothly.

Information

Give people as much information about how the change will affect their jobs and their future as soon as you possibly can – not as an add-on. Even if people don’t ‘need to know’ they want to know what’s happening and if they don’t have the correct information, the old rumour mill will start.

 

This can be more damaging than you might think – I know of two companies who had to close down because they didn’t quash rumours of impending redundancies. Their highly skilled workers left for more secure employment and neither company was able to remain viable without the skills they needed. All that was needed was a little openness and information about what was happening behind the scenes.

Enthusiasm

A manager can make or break the way people cope with change. If the leader is enthusiastic and positive, then everyone else is much more likely to follow. If the leader is complaining and negative, then everyone else is likely to follow.

 

Explain the vision, expect your people to go through what’s known as the ‘transition curve’ – from the lows of fear ("how will this affect me?"), feeling threat, guilt and depression, and up again through gradual acceptance and moving forward ("this can work and be good") if it’s managed well.  Help them to deal with the low times by leading the way clearly. If you’re not sure about the change yourself, then adjust your attitude before you talk to your staff about it.

It’s not going to be easy, but concentrating on the people as well as the process will reap many benefits and make the change much more likely to be successful.

 

This is a Guest Blog by Sharon Firth of Inspire Away , a trainer and facilitator with over 20 years' experience of working with people at all levels and in all industries. She is convinced that developing a culture where managers and employees solve problems together, communicate openly and share motivating goals will lead to increased productivity and employee engagement. Inspire Away can help by facilitating interactive staff workshops and Away Days or designing and delivering training for managers and staff.

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.