RAPPORT

 

THE NEWSLETTER FOR PEOPLE MANAGERS

JANUARY 2012 : HAPPY NEW YEAR TO YOU ALL

We cannot turn the clock back and start all over again but we can, from this point on, work to ensure a new and positive ending. 

FEAR OF RETURNING TO WORK

Following the festive break and all that indulgence, fun and relaxation etc, returning to a stressful workplace is likely to grip some folk with fear.  The Telegraph ‘goes so far’ as to allege that the entire Nation is gripped with this fear!  Actually, one in four admits to pulling a ‘sickie’ in order to avoid a day in the office – with Mondays proving the most popular day to call in sick.  63% of us claim that work related worries affect our weekends and our ‘quality time’ with our families and friends. 

Certainly there is significant truth behind this. On Sunday evenings, particularly, HR&DM continues to receive helpline calls (NB: The National Bullying Helpline which we founded in 2007 is no longer a charity). The fear of returning to work, even after a short week-end, is daunting for some. We both understand and respect the fact that there is some apprehension and stress associated with a fear of workplace conflict but is ‘yearning to escape’ to a career that is hobby based – such as photography, fitness and cooking etc., either realistic or feasible?  Is ‘walking away’ from a contentious work related situation really going to resolve the problem?  We don’t think so. We do believe, however, that having a coping strategy and understanding the options available can greatly alleviate undue stress.  So, if you suspect a tension or anxiety amongst staff within a particular department or team, or notice an increase in absence statistics – call us for a FREE and informal chat on 01793 338888.  We would be pleased to help.

FIT NOTES

Recent research found that of the 6 million days ‘recorded absence’ employees were likely to be absent for an average of 47.57 days if they obtained a GP’s sick note – as opposed to 19.68 days if they did not.  This is a significant increase in the time employee’s are likely to be absent.  It is further alleged that two thirds of employee’s producing a sick note had not actually seen their GP.  Clearly, our understaffed, underfunded, NHS is struggling. GP’s cannot possibly be expected to decide whether a patient is capable of doing their job without understanding what that entails.  Furthermore, patients who have not been seen by their doctor should not be given a sick note, surely? Greater support is needed to address, and manage, long term absence and return to work programme.  Attacking the recent Sickness Absence Review, blaming government and/or blaming the NHS system is not the solution.  A much more united approach is required.  Where the absence is ‘work related’ HR teams, Occupational Health experts, experts in conflict resolution and independent assessment experts should work in partnership, together with the distressed employee and his/her medical team, to identify early an resolution. Flexible working and alternative working arrangements should be considered as a matter of course – unless the employee is physically unable to work for some reason. Let’s drop the blame game and adopt a ‘can do’ approach. 

SOCIAL MEDIA

One significant legal case during 2011 was Crisp v Apple Retail.  If you do not know of it, it involves an employee who made derogatory comments about his employer on his private Facebook page.  Some say, as the site could only be viewed by friends in a personal network, the dismissal for gross misconduct was a bit harsh.  Whatever your view -  numerous other cases are being reported involving the inappropriate use of Social Media sites.  Without doubt, Employee Relations is a field that is shifting in view of up and coming technology – and the risk to UK business should not be underestimated.  Disgruntled employee’s are turning to technology to ‘vent their anger’ at having been made redundant, dismissed or even suspended for alleged gross-misconduct.  The CIPD addressed the issue by hosting a Social Media Conference in December. One of the speakers, Mr Neil Morrison of Random House, said that having a Social Media Policy was not only unnecessary – but a “bad thing” as it displayed a lack of trust in staff. “If somebody was reading the newspaper all day at work you wouldn’t respond by drawing up a newspaper policy,” he said.  

We are all entitled to an opinion but we would have to disagree with Mr Morrison’s comments.  Let us assume he is right.  If he was, you might go so far as to say that we don’t need Terms & Conditions of Employment – or any policies and procedures for that matter.  Replace them with trust!   This would be irresponsible in our view.  Policies are for the divorce, not the marriage. Indeed, the Tribunal system supports our view and urges employers to ensure they have a ‘well communicated social networking policy’.  Employers must keep up with the 21st Century, address risk to the business and ensure that the appropriate contingency plans in place – and given ever changing technology, this would now include a Social Media Policy.

A SOCIAL MEDIA POLICY

The law surrounding an employee’s use of social media is constantly evolving. If you do not have a policy addressing employee use of social media, resolve to develop and adopt one in 2012.  If you have a policy, review it regularly to embrace changing legislation. A good social networking or social media policy will set out parameters and expectations for employee use of social networking sites. Your policy should prohibit the disclosure of confidential or proprietary information related to your business or the business of a client, customer or business partner. It should also address copyright issues, including a requirement that employees respect copyright and fair use laws when it comes to the use of the name, trademarks, logos, identifying marks or copyright-protected material belonging to your company or any other entity.  A social networking policies will strictly prohibit harassing or discriminatory comments or postings, and require employees to make clear that all postings are their own views or beliefs and not the views or beliefs of the employer.

Consider your exit policies and Compromise Agreements too.  These should contain explicit social media and bullying & harassment clauses too.  Whilst this will not stop harassment or inappropriate conduct after the employment contract has ended – it will act as a deterrent and will give you, the employer, a legal route forward.  It’s good business sense.

FREE DISCIPLINARY PROCEDURE CHECK LIST – for managers

We once more offer you all a FREE Disciplinary Check List.  It is vitally important to ensure your organisation, line management particularly, understands how to conduct a disciplinary investigation when addressing staff conduct matters.  Here, we provide a useful, straight forward, check list for management to follow should they be tasked with managing such a process. Minimise risk to your business and ensure your line managers understand the process.  Your Heads of Department and Supervisors will find this guide useful.   Contact us for your FREE copy.

WHAT, EXACTLY, IS GROSS MISCONDUCT

We ran this article in December and it has attracted a great deal of interest. See a full article at http://hrdiversity.co.uk/frequently-asked-questions/

CASE LAW

In a Whistle-blowing case aBirminghamex-nurse has lost her tribunal claim.  Karen Hall, who worked atSellyOakHospital,Birmingham, alleged she was forced out of her job at University Hospital Birmingham NHS Foundation Trust after making disclosures about malpractice in operating theatres, that senior staff ignored.

The Tribunal dismissed the claim and concluded that, although the nurse genuinely believed patients were at risk, the level of danger was not as pressing as stated.  Furthermore, Miss Hall had ‘a tendency to exaggerate’. The NHS Trust demonstrated that they had taken the concerns seriously, had investigated them and had introduced extra safeguards where necessary.  The Judge added;  “As is inevitable where humans are involved, human error did occur from time to time or there was a decision to ignore the strictness of a rule if safety was not comprised. Though lapses were identified, procedures were not ‘ignored’ in the way the claimant suggested.”  He went on;  “It is regrettable that Ms Hall chose to take her unsubstantiated and, as stated by the tribunal, ‘considerably overstated’ and “uncorroborated’ allegations, which were ‘far removed from reality’, through a legal process which cost the NHS in excess of £155,000.

WHISTLEBLOWING CHECK LIST

If you are in receipt of a Whistle-blowing allegation;

  1. Assume nothing. Follow in-house procedures and/or familiarise yourself with the Whistle-blowing Act.
  2. Consider ‘reasonable belief’ and ensure the complainant is not victimised as a direct result of having raised the matter.
  3. Investigate matters thoroughly and document the entire process.
  4. When considering the facts, consider the bigger picture ie: ulterior motives, the history in terms of working relationships, collusion etc.  Look for exaggerated facts and ensure claims are corroborated, ie: not based on hearsay or anecdotal reporting.
  5. Observe the statutory rights of all involved.
  6. Be prepared to make reasonable adjustments, re-write policies, clarify safety measures and/or re-train staff.
  7. Do not allow the complainant to hold the organisation to ransom or to make unreasonable demands. Whilst a ‘Whistle-blower’ is protected for making a disclosure s/he is still required to adhere to good-conduct employment policies and procedures.
  8. Have a Whistle-blowing Policy (in addition to a Grievance and Bullying & Harassment policy).
  9. Communicate: Inform all staff of the outcome of any case and clarify what the remedies and improvement measures entail.
  10. Monitor and/or review the situation, periodically, on an ongoing basis.

OCTOBER 2011

INSTITUTE OF DIRECTOR’S PROPOSAL FOR OUR ECONOMIC FUTURE

Proposals to improve the UK’s economic outlook have been published by the Instituteof Directors(IoD). Its Route Back to Growth report outlines 15 proposals which, it says, “could make the UK one of the most competitive advanced economies in the world by 2020–2025”. The proposals include the following.

  • Nine major changes to employment law to improve labour market flexibility.
  • Repatriation of key employer powers from the EU.
  • Greater decentralisation of public sector pay.
  • No watering down of public sector pension reforms.
  • Cutting the top rate of Income Tax from 50% to 40%.
  • Cutting Corporation Tax to 15% by 2020.

The remaining proposals cover such things as monetary policy, infrastructure, energy policy, education and planning. (More details to follow).

TRIBUNAL LEVY

You have probably heard that a levy is being introduced for employees lodging an ET1 tribunal application. Currently, there is no fee for an applicant who wants to make an employment tribunal claim.  However, from April 2013 this will change.  Chancellor George Osborne said; “We respect the right of those who spent their whole lives building up a business, not to see that achievement destroyed by a vexatious appeal to an employment tribunal. So we are now going to make it much less risky for businesses to hire people”.  Under Mr Osborne’s plan, workers will still be able to take action immediately if they suffer discrimination, but by reducing the risk of tribunals for unfair dismissals the government hopes bosses will feel more confident about hiring people.

  1. The GMB Union criticise the plan.
  2. The TUC General Secretary, Brendan Barber, criticizes the plan and claims this is a “charter for bad bosses”
  3. Business Leaders generally oppose the plan and call for broader consultation
  4. The CBI welcomes the proposal (see below)
  5. Employment Law Solicitors voice differing views and point out both the advantages and disadvantages. 

Whatever happened to Employment Tribunals being a cheap, informal and quick means of resolving employment disputes.   From 2013, subject to consultation, the following fee structure is proposed;
• upfront fee of £250 when lodging ET1;
• further fee of £1,000 payable by Claimant when the hearing is listed;
• higher fees if the claim is for over £30,000;
• fee to be refunded if Claimant wins, and forfeited if they lose
• fees to be waived for those with no money

If the test for a fee-waiver is simply being on income support, then most ex-employees will automatically qualify for the waiver (but those still in a job will not).

The CBI Director General says;  “We have been urging the government to do everything it can to make it easier for firms to grow and create jobs, and this will give employers, especially smaller ones, more confidence to hire” 

Solicitors urge caution and say; “The changes may have mixed results. Someone who has not worked long enough to claim unfair dismissal may claim they are a whistleblower or a victim of discrimination instead, causing employers even more hassle than before”. 

It has been pointed out that most people who apply to a Tribunal are already out of work so will not have to pay under the scheme. Low paid workers may suffer disproportionately so equality and discrimination issues will arise.  There will be a cost in collecting, banking and recording these fees – what happens to the interest?

BT SEX PEST £289,877

Miss Petrina Taylor, from Huddersfield, West Yorkshire, resigned her £20,000-a-year job in August 2009 when a bullying ordeal became too much.  Leeds Employment Tribunal upheld her claims of sex discrimination and unfair dismissal.  Miss Taylor, who was declared bankrupt in January 2000, was handed £289,877 in compensation earlier this year. It emerged this week that her award was the largest made by any tribunal nationwide in 2010/11.

We are astounded by this case for a number of reasons. There are several significant issues to this case that concern us.

In addition to Petrina Taylor, ten additional female employees at BT attempted to bring a claim but BT silenced them with compromise agreements and a financial settlement.  It would seem Petrina could and would not be silenced.

  1. Whilst BT now admits liability, it was not until after Petrina Taylor quit that BT investigated Mr Alcock’s behaviour and dismissed him.
  2. At no point until so invited by the tribunal did BT consider it appropriate to apologise to Miss Taylor for the conduct of one of their managers and the impact that has had upon her.
  3. Miss Taylor suffered severe depression after leaving BT.
  4. The Tribunal described BT’s response as ‘woeful’.

How much in total will Sexual Harassment and inappropriate work-related conduct within BT have cost them?  Consider the hidden costs; legal costs, disruption to business, management time, productivity issues, settlement fees and legal support, absenteeism, work-related stress, the costs of preparation in Petrina Taylor’s case, poor publicity and the £290K payout.   In total, this conduct must have cost BT in the region of £2 Million.

Quote: Petrina Taylor complained about her ordeal at the hands of ‘dangerous’ sex pest boss Craig Alcock – but BT’s response was ‘woeful’, a tribunal ruled. Miss Taylor had to endure boss Mr Alcock ‘thrusting’ himself at her and here female colleagues and was warned by him that if she failed to land a deal he would perform a sex act over her. When she asked for time off to see her doctor over her contraception, he replied: ‘What are you telling me for? I’m not shoving it up you.’  Mr Alcock branded Miss Taylor’s team ‘sheep shaggers’ and ‘inbreds’ and described pregnant women as a ‘nuisance’.  He talked about a female colleague’s breasts, called a pregnant employee a ‘lazy cow’ and when told another colleague was expecting, he replied: ‘Not another one’.  Mr Alcock was also found to have been openly racist and homophobic.  The case is truly astounding.  What on earth was senior management doing while all this was going on? 

The average sex discrimination award nationally was £13,911 and the average unfair dismissal award £8,924.  Miss Taylor’s award included £165,692 for loss of future earnings, £20,000 for personal injury, £18,000 for hurt feelings and £3,000 for aggravated damages.  BT had admitted to the tribunal that the harassment occurred and that they were liable for Mr Alcock’s conduct. Mr Alcock had moved across to work for BT in July 2008 when it bought a telesales business that then traded as BT Customer Street.  Miss Taylor’s solicitor Jonathan Dyson, of law firm Wilkinson Woodward, said: ‘It is surprising that on acquiring the business in 2008 BT did not vet management more carefully. Had they done so, the damage suffered by my client could have been avoided.’

OUR WEBSITE

We are presently updating our website and would very much ask you to view it and feedback. Please see  www.hrdiversity.co.uk  What would you like to see featured on our site? Would you like to have a reciprocal link between our websites?  Call us on 01793 338888 if you would like to discuss this with us.  Alternatively, email admin@hrdiversity.co.uk

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