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

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

DSC_0267

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.

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?

The future for Employment Tribunal fees?

Applications to the Employment Tribunal in Great Britain have nose-dived since fees were introduced in 2014. But is it good for 70% more people to bite their lip? And is there an alternative to calling their bluff?

Recent Employment Tribunal figures show that the total number of claims for unfair dismissal in Great Britain fell to 12,652 in 14/15.  Compare this to the 92,000+ unfair dismissal claims in 11/12.  While cause does not necessarily imply effect, the timing of this fall correlates exactly with the introduction of fees for each application to the ET.  The recent figures confirm the trend implied by previous figures since the introduction of the fees, evidence enough to convince the current Scottish Government to announce that, under the new powers in the Scotland Act, and IF they are re-elected in May, that they will withdraw the fees from the Scottish ET (which would bring Scotland into line with Northern Ireland, where the fees were never introduced in the first place).

Few people who take a case to ET return to that employer, even fewer successfully raise a claim and stay employed there. Conversely, the costs of recruiting and training someone new are enormous – the 2015 CIPD/Hay Resource & Management Planning Survey indicates that recruitment costs alone can be up to £10,000, not including training and development.  Compare that to the costs associated with resolving a problem so a member of staff can remain a member of staff.

At the same time, of the unfair dismissal cases that were upheld, the median award was £6,955, a drop in the ocean compared to the legal costs, operational disruption and emotional upheaval involved in a Tribunal – most often, there are no winners.

Far better would be to find a mutually acceptable solution – whether through mediation, developing managers or by introducing more effective processes, or a combination of all three. Invest a little in mechanisms to avoid the ultimate employer/employee conflict, and potentially boost morale and productivity into the bargain, or pay the costs – the choice is yours.