Lidl v GMB – what’s going on?

food-healthy-vegetables-potatoesLast weekend there were news articles about Lidl’s decision to appeal against the ruling that they should recognise GMB union at their Bridgend depot – but why?

The story is reported on the GMB website, which handily also includes Lidl’s statement on the issue.

A significant majority of staff at Lidl’s Bridgend depot indicated that they wanted to be represented by a trade union in negotiations with the company. Lidl’s response was to reject the request for recognition that came from GMB. This was referred to the Central Arbitration Committee, the body that decides the outcome in such situations, who ruled that the union should be recognised. Lidl’s response has been lukewarm, with reports suggesting they are now going to appeal to the Court of Appeal against the CAC decision.

Setting aside the specifics of Lidl and GMB, the question then arises – why are so many employers hostile to unions?

Workplaces that have a union present have significantly better H&S records than those that don’t, they can access all sorts of training for their staff (union reps and members can access training through their union or STUC and TUC education programmes, as well as wider education through UnionLearn projects, etc.) that they would otherwise have to pay for. Being a representative is also a great way for staff to be exposed to responsibility and authority that would never occur in their day job, so there’s a good chance to see what they can do.

Aside from that, it helps meet obligations under the Information & Consultation of Employees Regulations that may otherwise be both problematic and ineffective.

So, with so much to gain, what is it that makes employers so reluctant to engage with trade unions?

Interestingly, around 70% of FTSE 100 companies recognise unions, so it can’t be THAT damaging to the bottom line.

History is a big factor – many, many employers (and workers) still view the union movement as a behemoth from the 1970s. But unions have changed, forced to evolve and adapt initially by legal changes through the 80s and early 90s, latterly by a drive to become more effective at representing their members in the rapidly changing world of employment. Before the last government decided to raise the hurdles for workers to take legal industrial action, it had already become a rare event – 2015 was the second lowest annual total for working days lost through strike action since records began in 1891 (the lowest was 2005).

There are costs – rates of pay in unionised workplaces are higher, and ensuring your workforce is safe and healthy takes investment, but more competitive pay also means they are more likely to attract better candidates when they advertise jobs, and it’s a good thing that people go home after work as healthy as they were when they started, so there are swings to those roundabouts.

I have long been a believer that the objectives of any workforce largely align with those of their employer – success for the company is in everyone’s interests. Hence my work to help and encourage employers to find the most effective way to interact with their employees to improve the company for whom everyone is working. Given the insights they have into the various levels and structures of your business, staff represent a valuable resource from which to better inform your next big decision. That doesn’t change because the staff want to be represented by a union.

However many people you employ, if you’d like help in improving the way you interact with your staff, whether or not there are unions involved, please get in touch – it could be the start of a new future for your company.  If you’d like to know more about the services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

To Mediate or Not to Mediate, That is the Question…

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.  Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense.  In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped.  But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies.  The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole.  To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

What Can Strathesk Resolutions Do For You?

Approaching Bass Rock from the south

Strathesk Resolutions specialises in helping businesses to identify, resolve and, ideally, avoid individual or collective problems with their staff through targeted analysis, mediation, training, coaching and mentoring.

We draw on years of experience working collaboratively and constructively to achieve the right outcome to complex industrial relations situations.  We deliver straightforward advice, training and solutions that encourage and develop relationships based on understanding, cooperation and trust.

Our open and honest approach ensures fairness to all sides whilst guaranteeing the needs of both the individual and the organisation are properly considered. Having worked with Trade Unions for years we understand the need for clear and concise communication, whilst influencing and negotiating in an expert manner.

You can expect us to thoroughly explore your problems, ensuring that we properly understand the problem before we start working towards a solution.  We will also keep an open line of communication to ensure that you are fully aware and involved in developing approaches.

Brexit in the workplace – what now?

The long and the short of it is that nothing will change immediately – the impact of European case law remains unchanged, albeit the vast, vast majority of case law originates through the UK’s Employment Tribunal system (primarily at EAT and Court of Appeal).

EU Directives on Employment Law are implemented through enactment into UK Legislation, usually by Regulation, less frequently by primary legislation. In this respect, many of the laws that have originated from the EU have become workplace norms (e.g. protection of fixed-term workers and part-time workers).

There is a risk that more recent and less accepted legislation may be under pressure to be repealed (e.g. Regulations on Agency Workers). There may also be changes over time in relation to the calculation of holiday pay and accrual of annual leave during sickness absence.

No doubt a surprise to many, there are various aspects of Employment Law where the UK provides greater than that stipulated by EU Regulations. This covers holiday rights, protection against discrimination, TUPE (which covers service provision transfer in the UK, unlike elsewhere in Europe), etc.

That said,  companies working throughout Europe and currently depending on UK laws to meet the requirements for a European Works Council may need to review their arrangements.

What about the rights of EU Nationals to work in the UK?  Well, it’s again difficult to say as yet, but special permissions may be needed to work here in future, perhaps with sponsorship, as is the case for non-EU nationals, but in the meantime, EU nationals working here are entitled to stay and continue working. The main protagonists on the Leave side made contradictory statements, so it is difficult to tell what may change, though Theresa May stated a desire to clarify this point quickly, while Nicola Sturgeon has moved to say their position is secure in Scotland.

But what will happen if there are non-UK nationals applying for jobs now? If they are employed, they may be forced to leave in a year or two’s time, but NOT employing them because of that would currently be illegal discrimination.

The UK currently already has a points based system for non-EU nationals which COULD be extended, at least for skilled workers, though Tier 3 (unskilled workers) would need to be reactivated. There hasn’t been a need for non-EU unskilled workers because that gap has been filled from within the EU, but that source is clearly likely to dry up as/when the UK withdraws from the Single Market.  If employers have a need for unskilled workers that they can’t meet from domestic recruitment, this needs to be flagged up with the Government.

A Week to Celebrate Volunteers

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National Volunteers’ Week runs through until 12th June 2016, so I thought I’d flag it up and take the opportunity to explore an activity that has become increasingly politicised.

Volunteering is one of the great industrial relations controversies of recent times, albeit one that bubbles along underneath the ones that grab the bigger headlines (fancy more austerity, anyone?!).  For decades, it has been the mainstay of charities, community activity and sports clubs, but in recent years there has been a drive for volunteering to provide things that many people view as public sector duties.

We all seem to have forgotten, but David Cameron’s Big Idea when he became Prime Minister was the Big Society – essentially, in a world where there were going to be extreme cuts to public sector funding, the vision was that the strain would be taken up by voluntary effort.  That’s where the controversy starts, of course.

When budgets are tight, Governments always push for “improved efficiency”.  However, in governmental terms being ‘efficient’ doesn’t mean making optimum use of the resources at your disposal, or even finding ways to do more with what you have – UK Governments of every hue have used the same definition: “improving efficiency” means “do the same or more with fewer people”, rather than doing things better.  So organisations have been faced with arbitrary cuts to their staffing regardless of the potential impact on their ability to deliver statutory responsibilities on behalf of the Government.  In many respects, “Big Society” was the anticipation of that dilemma.  Had society been successfully motivated to volunteer for the requisite roles, they could indeed have plugged some of the gaps.

As the UK ploughs through its 8th year of austerity, with several more years to come, according to George Osborne’s forecasting, greater and greater “efficiency” is being sought in the delivery of public services.  Many organisations have adapted to serious cuts in their budget by reducing the number of people they employ.

The real problem comes in trying to continue work in areas where people have been made redundant.  This isn’t so much a legal issue (replacing a paid member of staff with a suitably skilled volunteer wouldn’t invalidate the redundancy) as a political issue (note the small ‘p’).  Often, the people with the relevant skills are those who’ve just been made redundant so, unless they’ve taken early retirement, persuading them to do the same job, just not to be paid for it, seems an unlikely scenario.

But are the same skills available elsewhere?  Often they aren’t, but when they are, there is another issue to consider- can you persuade the remaining staff, who are now seriously loaded with work, whose morale has been undermined and whose colleagues have been pushed out, that they should take on the additional workload of managing volunteers to do that same work?  A serious flaw in the model is that it’s all too easy to underestimate the amount of professional effort it takes to motivate, organise and deliver using volunteers.  Some of the bigger charities have been doing it for years, and still they need teams of staff dedicated to just that.  It is also an approach best used to deliver “added value” items.  Someone under an employment contract has an obligation to do the job they’re employed to do.  By contrast, if you’re trying to deliver basic services, and a volunteer decides not to turn up, there’s nothing much you can do about it – having managed numerous projects over the years, this is a very real issue that makes project and resource planning much more difficult.

There’s also the problem that people tend to volunteer to do things that they either enjoy doing or in which they have a fundamental belief, so there’s a big problem in getting them to volunteer for things that they believe should be the responsibility of central or local government, or that they simply don’t get a kick from doing.  And why not?  It’s their precious time that they’re donating, so they have an absolute right to use in the way that they want to use it.

Don’t get me wrong: the efforts of volunteers are incredible, and the number of things that happen just because some people are willing to give up their time is exceptional.  You can’t argue with an estimated value to the UK economy of £23.9 billion.  The question is whether or not it is an efficient, reasonable and dependable way to deliver public services: to my eyes, getting something for nothing sounds too good to be true, and we all know what they say about things that sound too good to be true…

Here Comes the Trade Union Act 2016 (but is time running out for the union movement?)

DSCN0519So, the Trade Union Act slunk onto the Statute Book on 5th May. We now know what it says, but do we know what it means?

The short answer is “sort of”, but it’s very close to “not really”…

What we do know is that among other things:

  • any industrial action needs to follow a ballot with a minimum 50% turnout
  • ballot papers must make clear the dispute and the action proposed
  • 14 days notice of specific action must be given to employers
  • in “important public services” ballots must also be supported by at least 40% of eligible voters

We don’t actually know as yet when the provisions will come into force, but there are several other uncertainties at this stage as well.  For example, it has yet to be defined which public services are deemed “important”, though we can probably predict that it will include Health and Education.  Furthermore, as with all laws, the final impact will be shaped by cases that go through the courts so, with questions remaining on the impact of this legislation on workers’ human rights, there may be uncertainty for some time.

What is clear is that the impact in the devolved administrations will, for the foreseeable future, be minimal as the Governments in Scotland, Northern Ireland and Wales have all said that they won’t be implementing the provisions of the Act. So what can we expect to see in England?

Well, the intention behind the Act is clearly stated as making it more difficult for trade unions to take legal industrial action, particularly in what are being called “important public services”. This seems to have been a response to disputes in recent years where some unions have proceeded to industrial action with significantly lower turnout than is now being demanded.  A collective breath of relief will have been taken amongst all unions that the threat to allow employers to hire agency staff to complete strikers’ work was dropped from the final legislation.

The Government has recently taken a bloody nose in relation to it’s plan to do away with “check-off”, the mechanism by which union subscriptions are paid direct from people’s salaries, in spite of that system having little or no cost for employers.  Having now established through the courts that DWP’s implementation of that approach was unlawful, the Government now risks claims for compensation from the unions that have been affected.

The unions had responded through consultation on the Trade Union Bill that it was unreasonable to dictate the levels of turnout while the Government insisted that they continue to conduct ballots by paper and post.  In that context, it’s interesting to note the concession that there will now be an independent review of electronic balloting.  In spite of that, it is also worth highlighting that there have been many troublesome disputes, notably the ongoing one with Junior Doctors in England, where the turnout has significantly exceeded those imposed by the new strictures.

Given that, it remains the best approach for employers, especially those who are not bound by Government instruction, to work with their staff, including the unions where they are present, to make sure they avoid the dispute in the first place.

Depression Awareness Week – talking about it definitely makes things better…

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I didn’t want to see Depression Awareness Week pass without doing at least a little to promote it. Why? Because mental health is still a massive taboo in UK workplaces, with many people going through agonies to stop their colleagues, and especially their bosses, from finding out that they’re ill.

Only this week I was approached by someone asking if their employer is likely to see them as weak, a liability, if they are honest about being ill. It’s a shame, but that is still the overwhelming fear for people when they’re diagnosed. In spite of the fear, many organisations I’ve dealt with are actually reasonably aware of the problems that can arise and treat mental illnesses similarly to physical ones, but some, sadly, are a long way from that. The best way to start improving things is to speak about depression openly and honestly, and Depression Awareness Week presents an ideal opportunity to start that conversation.

As an employer, it’s worth remembering that depression can be a disability, so it’s important to get your approach to it correct, but also that it’s a common illness from which the vast majority of people recover (or can manage) with proper treatment – and a supportive employer can make a huge difference in successful recovery.

Who’s to Blame for Blame Culture…?

I remember a former CEO doing a Q&A session at an all-staff meeting. After various questions about the direction the organisation was going, someone asked about blame culture – the response was robust: “I won’t tolerate blame culture – if it happens, the individuals responsible will be identified and held accountable”. In spite of the guffaws around the room, the said CEO clearly couldn’t see the irony inherent in this statement. Yet blame culture remains part and parcel of many businesses across the UK.

This is a shame as it inhibits people from raising issues that need to be raised if an organisation is to continue improving its performance.  After all, how do you know where you’re going wrong if people are scared to point out where you are?  At it’s worst, the fear of being blamed even prevents people from coming clean about their mistakes, and how many employers wouldn’t rather learn from mistakes than not know about them? Even worse, the worry that they’ll be blamed may persuade some people that it’s better to say nothing, even if they know something illegal has happened.   The irony of this latter point is that the law is on their side – in theory.

The Public Interest Disclosures Act 1998 provides protection for anyone who makes a disclosure so they shouldn’t be sacked, or disadvantaged for having done so.  The Act covers disclosure of criminal offences, breaches of legal obligations, miscarriages of justice, danger to individual health and safety, damaging the environment or attempting to conceal any of these things.  If someone DOES suffer as a result of having blown the whistle, they have the right to make a claim to the Employment Tribunal and, if upheld, a dismissal would be automatically unfair.  Since 2013, the ET has the power to reduce the settlement if they think the initial disclosure was done in “bad faith”.

A critical point is that people need to follow the specified procedure, and are only protected if they state that they are making a disclosure under the Act.  The trouble is that many employers don’t have the mechanisms, or resources, to make sure that suitable protection is put in place before, during and after an investigation – or they don’t make it easy for their staff to find the right procedure to follow.  And if people use the wrong procedure to make their disclosure, or don’t specifically invoke that protection, it’s very possible that the law will leave them high and dry. That leaves people feeling too exposed, so it becomes easier to sit tight and say nothing, or leave (and still say nothing). There is also the problem that the legal protection of the Act only kicks in once someone can demonstrate that they’ve suffered a detriment (e.g. been sacked), by which point there is often no way back.

So, if the UK seriously wants to instigate a culture under which people report issues they see at work, perhaps we need to start by ensuring that people can be open about honest mistakes.  Thereafter, have the confidence to develop genuinely open and clear procedures so people can believe that they ARE protected – not just by the law – and encourage people to report things without fear and we might make some headway. Similar to the progress many organisations are making towards developing a safety culture, where staff routinely remind each other of safe processes, eventually perhaps we’ll learn to accept intervention as a helping hand rather than a criticism.

Accredited Mediator

While my previous career involved mediating between various parties on a regular basis, I’d never had my skills in this respect properly reflected through accreditation, so I decided it was time to address that. Thanks to training provided by The Mediation Partnership, I am now accredited mediator.

The training was both interesting and challenging, featuring a number of role play scenarios that were outside of my previous experience and allowed a wide-ranging exploration of approaches and techniques to develop my skills.

The course is accredited by the Scottish Mediation Register.

 

A Port in a storm…

Forth Rail Bridge from Hawes Pier (small)

So, almost unnoticed behind the stramash of George Osborne’s eighth budget, the Government has been defeated again in the House of Lords over it’s Trade Union Bill.  As before, the headlines are all about the impact on Labour Party funding.  As before, the implications for trade unions and workers’ rights to organise themselves and, in particular, campaign about members’ issues have been largely skimmed over, as has the fact that several unions aren’t even affiliated to the Labour Party in the first place.  There’s more to come on this as there is another day of Review (the line by line consideration of the Bill) in the House of Lords, then the third and final Reading.  All of that against a backdrop of several high profile strikes, most of which look, from the outside, like they could have been avoided.

Neither the BMA nor Junior Doctors in England are renowned as militant types, but they see a compromise to healthcare delivery in the revised contracts they are being offered. Jeremy Hunt’s responses have done little to allay insinuations that the changes are as much politically motivated as financially, but then neither side is indicating much room for manoeuvre so it doesn’t look like there’s going to be a simple end to the situation.  Imposition of the new contracts may solve the short term problem for the Government, but it’s hardly going to encourage newly qualified doctors (or anyone else) to view NHS England as an employer of choice.

Meanwhile, Grangemouth is in the news again, this time with a dispute between Forth Ports and dock workers.  In recent years, Grangemouth has become associated with industrial unrest and high pressure tactics on all sides, largely due to the strikes called against Ineos at the Oil Refinery there in 2008 and 2013 and, while this is a different set of workers and a different employer, the rhetoric from both sides seems woefully familiar.

Having only read about these disputes, and having not been directly involved, it’s always difficult to see the full picture, but the common theme seems to be one side claiming they’ve not been consulted, the other side saying they have and that there aren’t any options but the one being presented.  It’s not always simple to understand the subtle differences between informing people, consulting them or negotiating change with them, but it’s nigh on impossible if sides don’t speak to each other.

As with most disagreements, there is unlikely to be complete truth in either position, but it does seem that the parties involved subscribe to different dictionaries and are therefore working to different definitions of many of the terms they are using. That’s not an uncommon situation but is one that, if not addressed, will damage all parties’ reputations and can only be resolved in the long term by both sides being willing to hang up their boxing gloves and start their relationship again. Working out how things got so bad isn’t easy, but is possible – and would be in the long term interests of any business that wants to develop a genuinely healthy relationship with their staff.  After all, a happy staff is a productive staff within which everyone becomes an advocate for their employer.

There’s a truism that any employer will end up with the unions that they deserve, and that unions will end up with the Management they deserve.  That’s always worth bearing in mind as, when the disputes are over, everyone will still have to work together – and surely it’s better to work somewhere that you can have a polite discussion than one where every minor disagreement becomes a major dispute?