Training in Copenhagen

At the end of November I delivered a training course on Advanced Negotiation Skills. OK, that’s something I’ve done quite frequently over the years, but this course had a slight difference.  This was the first course I’ve delivered as an Associate with CEDR.

It was wonderful working with my co-trainers: Andy Grossman has been delivering conflict resolution training with CEDR since “forever” (about 20 years) and has a wealth of experience; the third of our team was Phil Williams, a retired police officer who now specialises in delivering training around hostage and crisis negotiation.

Djøf delegates getting to grips with collective bargaining, November 2017

The trainees were all members of Danish organisation Djøf (the Danish Association of Lawyers and Economists), a trade union for lawyers, economists and a wide range of other skilled workers across all sectors.  Trade unions are much stronger in Denmark that the UK, with around 67% of workers in membership.  Indeed, the workforce takes a key role in the strategic direction of many businesses. As such, they operate at all levels of the business and often have a greater buy-in to business decisions than is the norm in the UK.

It was fascinating to see how the delegates worked through the course and embraced different aspects of negotiation. The emphasis was clearly on cooperation and people seemed genuinely uncomfortable even having to role-play situations where they had to hold a line and end up in conflict. Their explanation was that this is the Scandinavian way: being reasonable, finding the common ground and working towards a mutually beneficial outcome are second nature.

While Andy and Phil focused on negotiation theory, behaviour and motivation in negotiation, I focused on the collective aspects of negotiating in a workplace.

Like many unionised organisations in the UK, it’s common in Denmark for there to be multiple unions involved with an employer. To simulate that, we ran role-play scenarios where the delegates had to negotiate towards a pay agreement, given a range of restrictions and contradictions within which to find an outcome.

It was wonderful to see the range of approaches they came up with to present and justify their position, whether they were role-playing management or staff, and the enthusiasm with which they set about negotiating.  Suffice to say, it was encouraging that all of the groups were able to achieve their objectives and came away with a greater understanding of the challenges ahead when faced with real collective bargaining situations.

All in all, from a training delivery perspective, it was a thoroughly enjoyable experience!

 

Malcolm Currie

 

I’d be interested to know your thoughts on the topics raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

SME Sickness Absence – Prevention or Cure, THAT is the Problem…

Most of my blogs have been about topics in the news that I find interesting, or on which I’d like to provoke a little debate, but this time round I thought I’d take a slightly different approach and reach out to people who, like me, run or work for small/micro businesses for whom sickness absence can be a massive headache.

 

Those of you who know me will be aware that I’m an “egg chaser”, a “spoiler of rugby matches”, or whatever other term you like to use to say that I referee rugby matches, something I took up after recovering from a dislocated knee and a rebuild when the ligaments ruptured.  I also like to cycle, run, climb mountains and do all sorts of other activities that have, over the years, taken a physical toll.

 

Over recent months, my knee had become increasingly painful to the point that, a few weeks ago, I found myself missing a train because I wasn’t able to run/walk fast enough from platform to platform to catch the connection.  This brought home that I needed some sort of medical intervention or I was going to end up not able to work, and therein comes the point of this blog.

Since I went self-employed, I have become painfully (sic!) aware that if I’m not working, I’m not earning.  Worse, because my business is relatively young, I don’t have a track record against which to claim appropriate lost earnings on my insurance (without the said insurance being prohibitively expensive).

 

So, what should I do?

I was already aware of Healthy Working Lives though having worked with an employer who needed their advice in making reasonable adjustments for a disabled employee (another of the services available).  However, in this case, I am more specifically describing the support they can provide for self-employed people or those working in small and medium enterprises, where possible preventing people from going off sick when an early medical intervention might keep them working.

For a small/micro business, the benefit of these approaches is 2-fold:

  1. the individual doesn’t lose income when they needn’t have done;
  2. the business doesn’t lose capacity to deliver for clients/customers.

This runs alongside Fit for Work (operating as Fit for Work Scotland north of the border), a UK-wide initiative aimed at getting people back to work quicker and “reduce the impact that absence has on individuals, employers and the State”, the main difference seeming to be that Fit for Work focuses more on people who are already off work.

 

How does it work?

Well, for me it involved me contacting the Healthy Working Lives advice line (0800 019 2211), answering a few simple questions about my working situation and the nature of the illness, then waiting for contact back.  The result was that I had an appointment with an NHS physiotherapist in less than a week, and, with her guidance, I’ve started a rehabilitation programme that should address the problem and stop it from developing to a stage that prevents me from working.  And if the programme doesn’t work, I’ll be referred to a Consultant who can review anything else that needs to be done.

It’s the second time I’ve needed to use the service since I started my own business, and my experience both times has been very similar, I got the medical support I needed when I needed it and avoided lost time off sick.  I mentioned this at a meeting of my local Chamber of Commerce last year and was amazed that I seemed to be the only SME owner who was aware of it, so I thought I’d share a bit wider that such a service exists.

 

I’d be interested to hear any other hints/tips that anyone out there might have, so please share them if you can.

Good Riddance to Employment Tribunal Fees

Well, it’s been a long time coming, but the Cameron Government’s decision to charge fees for people to raise claims in the Employment Tribunal has finally been shown to be illegal.

Created with Nokia Refocus

In a landmark ruling, the Supreme Court has ruled that charging people up to £1200 so they can challenge the legality of their employer’s actions is illegal.

Fees were never introduced in Northern Ireland, and it is notable that there was no drop off in the number of applications to go to their Industrial Tribunal.  Meanwhile, across Great Britain, ET applications plummeted by 70%.  In Scotland, the SNP Government stood for election in 2015 with a pledge that, as soon as they had the power to do so, they would legislate to remove Employment Tribunal fees, justifying this on the premise that someone who has just unfairly lost their employment is unlikely to be able to find the money and will, therefore, be denied access to justice.

Introduced in 2013, fees were initially justified as being to reduce the number of “weak claims”, though a financial incentive later became apparent with the Justice Minister at the time stating

We want people, where they can, to pay a fair contribution for the system they are using, which will encourage them to look for alternatives.

That case was never particularly convincing and the result, inevitably, was that many people with a valid claim were unable to bring it because they couldn’t pay the fee.

Alongside the fees, the Cameron Government also introduced mandatory Early Conciliation.  This is a process whereby the parties, with facilitation by ACAS, can try to reach an out of court settlement and is something applicants have to do before they can complete their ET application.  Although there’s nothing wrong with this in principle, my experience of it wasn’t good.  I have found few employers prepared to negotiate towards a settlement, preferring to gamble on whether or not the applicant could find enough cash for the fee.  Perhaps, with fees now found to be illegal, there will be a greater incentive for all sides to take a more pragmatic, conciliatory approach.

Dave Prentis, the UNISON General Secretary, welcomed the Supreme Court ruling saying:

The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.

In this context, the positive role of trade unions shouldn’t be underestimated, and not just because it is through UNISON’s expertise and persistence that this ruling has been achieved, but more locally and practically as well.  A well-trained union rep can defuse and head off the vast majority of cases referred to them, most often through facilitating a pragmatic solution, sometimes through persuading an individual that their case doesn’t stack up.  As an example, this leads to a significant reduction in the number of cases going to grievance, and those that do proceed tend to be much better presented.  This is something that many employers could easily miss.

That principle also filters through to ET applications.  Unions take great care in presenting cases, cases they support are exceptionally unlikely to be regarded by the Tribunal as “malicious, vexatious or frivolous” or “in bad faith”, and a significant proportion are successful.

Of course, most trade unions opted to pay these fees for their members, but many, many people who weren’t in a union must have been denied access to justice by this ill-conceived policy.  While it is likely that those who applied to the ET will have their fees repaid, at this stage it seems likely that those who couldn’t afford the fee at the time will have missed their opportunity, but it remains to be seen if any pragmatism will be shown in that respect.

 

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Taylor Report on Employment – where now?

 We (OK, a few of us) were on tenterhooks waiting for the publication of the Taylor Report into employment practices in the UK, but will it make things clearer or further muddy the waters?

Uber, Deliveroo and Pimlico Plumbers have all been answering legal questions about the legitimacy of a business model that sees them, and other companies, claiming the people work for them are self-employed, so they don’t have to pay Employers’ National Insurance, pension, holidays, sick leave, etc., as their competitors do.  At the outset, Taylor commented that there were areas into which he wasn’t tasked to delve (tax & National Insurance, for example), so it hasn’t, perhaps, been the free and open review that had been called for by many.

There are, however, several aspects that are unlikely to go down well with factions of the Conservative government.  Speaking in May, Taylor said:

“As we encourage people to vote . . . to inform themselves of issues, to volunteer in their community, is it defensible to say that for eight or more hours a day they should accept being ignored, denied information, treated as mere cogs in a machine?”

That could easily be interpreted as a call to reverse moves by the Cameron Government to apply cumulative restrictions to the ability of trade unions to provide that voice.  It could also be that Theresa May’s surprise decision to announce in November:

“…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” 

might actually come to fruition, though there has been precious little mention of the radical reforms of employment law mentioned in the run-up to the general election.

However, it also suggests that implementation of the Information and Consultation of Employees Regulations 2004 (ICER) hasn’t had the impact that it could and should have had.  Certainly, many trade union activists viewed ICER with suspicion, partly because merely informing and consulting can achieve relatively little without scope for negotiation. Similarly, some employers saw it as a way to prevent unions from getting access to their workplace.  However, those opinions have been changing over time, as demonstrated by the TUC’s “Democracy in the Workplace” report from 2014.  There is considerable evidence that employers that actively engage with their staff are more successful than those that don’t:

“Happy and productive people equals growth” (ACAS)

Many were calling for a simplification of the categories, preventing confusion over whether people are employees, workers or self-employed: instead, Taylor seems to be recommending that a further category is introduced, that of “Dependent Contractor”, something more than self-employed, clearly less than a worker, but that is presumably intended to level the playing field.

Quite how the Government will react to the findings is, frankly, anyone’s guess, especially with the level of distraction coming from Brexit, May’s increasingly slender majority, rumoured challenges for the Tory leadership (and, hence, the job of Prime Minister) and Labour apparently surging ahead of the Conservatives for the first time since the General Election, it’ll be a real surprise if they turn to this as a matter of urgency.  But it is the response of Government to these findings that will determine whether or not they make a positive difference for employers and those they employ.

Instead, attention will again be drawn to Uber’s fortunes in the Employment Appeals Tribunal in September.

From where I’m sitting, one answer is in the hands of every employer; improve your working relationship with your staff and, in turn, make the business more productive and more profitable.  That’s an area where I would certainly like to help.

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Back to the Future as wages are predicted to stay in the past

In spite of political insistence that the economy is recovering, and has been for a good while, this week the BBC’s Economics Editor has predicted that wages are likely to stagnate for a good while longer.

That conclusion isn’t really a surprise, but it will be a disappointment for many given the extent to which pay has been eroded over recent years – this report from 3 years ago pointing out that real-terms pay is stuck in a time loop at 2004.

“But pay rises haven’t been worse since the Napoleonic wars”

The Office of National Statistics’ Annual Survey of Hours & Earnings isn’t complete for 2016, but many of the draft results don’t make happy reading as far as pay growth is concerned:

  • Adjusted for inflation, weekly earnings increased by 1.9% compared with 2015, an increase due to a combination of growth in average earnings and a low inflation (more on inflation below).
  • Weekly earnings rose 2.2% for full-time workers, 6.6% for part-time workers.
  • The gender pay gap for full-time employees was 9.4% (the gap has hardly changed over the last six years).

Indeed, if you look at the cumulative impacts of pay restraint under successive Governments, the 2008 economic crisis and the seemingly never ending austerity that has followed, some public sector workers may only have seen a real terms pay increase in their lifetime if they have managed to get a promotion – and many have only done so because inflation was so low in 2014/15:

“The gross wages of the median Scottish worker are £1170 lower than if wages had kept pace with CPI inflation since 2009.”

…and that’s before you get into the debate about whether CPI, currently 2.6%, is a reasonable measure of the increased cost of living (most trade unions and many commentators prefer to use RPI, currently sitting at 3.5%, as it includes housing costs).

 

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787

Are you dying to go home?

Every year more people are killed at work than in wars.

28 April 2017 is the annual Workers’ Memorial Day.  It’s hard to believe that the world of work is still so dangerous.  Of course, many of us underestimate the risk of many of the things we do each day – how many people treat driving along the road as the single most dangerous thing that most people in the UK do, yet every day 5 people die doing just that.  The same goes for many of the activities we do every day at work – lifting and carrying heavy boxes, walking up and down stairs while talking on your mobile phone, and a whole list of other things we all do in our working day, often without thinking.

Some people describe taking precautions to prevent such activities from injuring people as “health & safety gone mad”, but the aim is to make sure people go home from work as healthy as they were when they arrived.  In spite of those measures, 142 people in the UK still didn’t make it home after going to work in 2014/15.  Even more worrying are the estimates of 13,000 people dying each year because of past exposure to harmful conditions at work, 8,000 people dying of occupation-related cancers and 4,000 from exposure to dust, fumes or chemicals.  And that’s in the UK where we’ve had the Health & Safety at Work Act in place since 1974.  The International Labour Organisation (ILO) estimates that more than 1 million people die worldwide each year from work-related factors, almost double the number who die due to war.

Workers’ Memorial Day provides an opportunity to reflect, to remember the people in the UK and across the world who have died trying to make a living and support their families and possibly to attend one of the many events to mark the Day across the country.

And Workers’ Memorial Day is an opportunity to avoid being complacent and to avoid the trap of viewing the basic common sense of anticipating ‘accidents’, and taking steps to stop them from happening, as an unnecessary imposition.

 

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Trade Unions face big new fines

Trade Unions face big new fines

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Sneaking past the radar, under cover of Brexit, the Government is running a number of consultations, including ones around the Trade Union Act 2016 and Corporate Governance. The Corporate Governance review deadline has passed, so the gathered information is now being collated and interpreted, but other elements are still in play. The consultation that caught my eye was consultation on the Certification Officer’s enforcement powers. This will introduce significantly tighter rules on the election for senior positions, vetting of candidates and the management of political funds, with unions facing fines of up to £20,000 if they breach those rules.

As is often the case, there’s a stick for when things go wrong, but no carrot to encourage a more positive approach to be deployed. The consultation in process doesn’t seem to be leveling the playing field so much as presenting another set of hurdles for unions to jump in order to be effective in representing the voices of their members.

Only last November Theresa May stated “…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” at the CBI Conference. She backtracked pretty quickly, and the concept that staff have a valid (essential?) voice in the successful governance of businesses and charities was diluted in the document that was published, but it was still there. There is, therefore, an opportunity for employers to provide a channel for that voice.

And all of this comes at a time when strikes are at close to their recorded low – to quote from the Office of National Statistics report UK Labour Market: Mar 2017:

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Yet, while CEOs across the land still proclaim their staff to be their biggest asset, most still decline to draw on staff knowledge of the business, the problems it faces and many possible solutions.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Disciplinary Penalties: You’ll Have Done Your Time?

This is an interesting one.  An  Employment Appeal Tribunal has recently ruled that an employer acted fairly in dismissing someone while taking into account a number of disciplinary issues that were, according to their procedures, ‘spent’.

The case is an extreme one, with the employer having taken 18 formal actions against the individual over a 12 year period.  The employee then did something that carried a mandatory final written warning.  However, the employer decided that the previous disciplinary record, in spite of all penalties having expired, should be taken alongside the latest misdemeanour, leading to their deciding to dismiss the individual.  Most Disciplinary Procedures are quite clear on how long a warning will remain on an individual’s personal file, and most employees will assume that, once that time has passed, they no longer need to worry about the record. There are, however, policies that say a record can be kept longer (even indefinitely) for a range of purposes – possibly the most common being to use as a deciding factor in a redundancy situation, but there are others.

For years, I’ve advised people to make a Data Subject Access Request for their personal information once they’re clear of the penalty, so anything that should no longer be on their employment record will be removed, just in case they get taken into account in any future situation (e.g. redundancy).

One of the problems is that very few companies have the resources to be meticulous about keeping their staff records (or their other filing) absolutely up to date.  The result is that, even if the policies say nothing, records of things that have happened years ago can remain on the file to be seen by whoever next needs to access it.  If that happens to be for a future disciplinary, is it reasonable to expect an investigating officer to ignore that information once they’ve read it?  They may try hard not to consider it but, subconsciously perhaps, they now know this individual has a history.

Even if that history has no relevance to current circumstances.

 

I’d be interested to know your thoughts on this subject, so please leave a comment. Alternatively, if you’ve been affected by a similar issue and would like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Time to call time on out of hours e-mail?

The French now have an absolute right NOT to check their e-mail out of hours, but why do people do it in the first place?  Is a law necessary?  And how much of it comes as an expectation of the employer, and how much is self-inflicted?

I suspect there may be a PhD in accurately finding the answer to these questions, but few employment contracts demand that you are available and responding 24 hours a day and for most people the actual expectation is that they work their normal contract hours, plus give a bit of flexibility when they need to get something done.  It’s interesting that France has felt the need to protect people from the pressure (perhaps to protect them from themselves?) by introducing a law that guarantees the right not to check e-mail when you’re not working.

In the days of paper correspondence, people would expect a response to their communication perhaps within the week, but after 5 or 6 days was often the best that could be achieved once everything was balanced into the diary.  That steadily changed as electronic communication came to the fore.

The step changes in expectation, however, came with the rise of the laptop and the BlackBerry.  While the traditional BlackBerry is an endangered species, teetering on the verge of extinction, more and more people are carrying a smart phone on which they can not only send and receive e-mail, but they can browse the internet, log into cloud drives, even edit documents.

I’ve had colleagues in the past who expected instant responses to their e-mails – one reportedly started criticising my lack of response because I hadn’t replied within 2 hours of them e-mailing me.  Whether or not that was true, the fact that someone was prepared to relay it indicates how believable it is in the modern world of work that expectations have become so utterly and completely unreasonable.

This whole situation has become exacerbated by the increasing use of Twitter and other social media by businesses looking to communicate with their customers and clients.  Twitter has brought the expectation of instant responses, or at least within a few minutes, to the extent that some staff are now being tasked with responding to all Tweets within very short timescales, while there has been a growth in suppliers offering social media management services so you can outsource the “instant” responses and focus on more considered answers to legitimate questions.

It is inevitable that this focus on more and more rapid response should spill into people feeling they’re not doing their job properly if they don’t meet the timescales.  That, combined with increasing presenteeism, means people are often tempted into having a quick check of their work e-mail once they get home.  Or just before they go to bed.  Or as soon as they wake up in the morning.  Or while they’re SUPPOSED to be off work ill.  This last one is particularly concerning as the increased stress will undoubtedly delay their recovery, while they are unlikely to get any thanks or recognition from their employer for having done so.  Indeed, a responsible employer should be seeking to stop such behaviour, as has been reported on the parts of Volkswagen, Daimler, Axa and other companies.

To highlight the folly of this lifestyle change, keep an eye out for more information about Work Your Proper Hours Day, an annual event instigated 13 years ago.  Given the amount of unpaid overtime you probably work, including checking your e-mails out of hours, WYPHD falls on the day each year when you (as an average worker) actually start to get paid for the work you do.  And in 2015 people in the UK worked £31.5 billion worth of hours without getting paid a penny.  This year it falls on Friday 24th February.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787