HR Practitioner’s Diary: Ostriches and Tribunals

Annie Hayes

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HR Practitioner’s Diary: Ostriches and Tribunals

By Annie Hayes

The grudge match with ‘Polar Bear’ is nearing but our HR Consultant Sue has other issues on her mind; bogged down by the red-tape burden she finds a lot can be learnt from our feathery friends.

W/C 1/8/05
August already! Where has the summer gone? It’s hard to believe I’ve been a self employed HR Consultant now for five months and I just don’t know where the time has gone. Thankfully there hasn’t been a dull moment yet. Let’s re-cap on the events of the last seven days.

I’m nearly there with the contract and staff handbook project. Some of the staff have been in employment since 2000 but haven’t ever received official terms and conditions and I have to issue around 30 of them!

It does make you wonder how many more businesses practice the ‘Ostrich Syndrome’ that is employ staff without any formal terms or conditions.

Do these companies realise how vulnerable and careless they are? Do they feel any real sense of responsibility towards their staff?

It does amaze me. A basic contract does not have to be huge or complex and it is so important in offering both parties peace of mind.

I’ve decided this week that I really need to penetrate the small to medium size business market. My new business cards are in print at the moment, so I think they are going to come in really useful! September should see business networking getting under full steam, after the ‘mad’ holiday season diminishes, so hopefully I will have a captive audience.

The top ten
Employment Law seminars are aplenty at the moment. I’ve attended two this week, the most useful of which covered the ‘Top Ten’ legislation subjects.
Some have more impact than others, but I’d like to reflect on the more relevant points.

Age: the new discrimination
Some businesses have asked whether they should be acting now in regards to employees that are due to retire in October 2006. Should they be writing to them or leaving it until the legislation is implemented.

What do you think the best approach should be?

Disability: extensions and definitions
With effect from December 2005 there will be two key changes in regards to Disability Discrimination. Progressive conditions including MS, HIV and cancer will be classed as a ‘disability’ from the point of diagnosis as opposed to the point the person becomes symptomatic. The current requirement that a mental illness becomes ‘clinically well recognised’ will also be removed under the provisions of the new Act.

The question here is at the recruitment stage are Health Questionnaires now acceptable or should the employer simply not expect to know anything of the applicant’s health for fear of prying and potentially facing a disability discrimination claim?

One interesting case study is Williams v JWT. The point made in this case is that when an employer knows of a candidate’s disability they cannot offer the job and THEN consider reasonable adjustments. They must consider reasonable adjustments BEFORE offering the job (when the employer will know less about the disability and, in practice, will be more easily excused for failing to make adjustments)”. If interpreted strictly, this could result in fewer disabled candidates receiving job offers. What do you think?

Restriction clauses: do they work?
Protection Against Unfair Competition is an interesting one. I wonder how many organisations restrict ex-employees from undertaking work of a competitive nature. Some may give a distance restriction of a five male radius or alternatively a period of say three years.

There is an interesting case study Countrywide Assistance Financial Services Ltd v Deanne Smart and Marc Polland Countrywide placed a three mile restriction on these ex-employees as they felt the interests of their estate agency business could be threatened were either individual to gain employment with a nearby competitor.

The court ruled against CAFS, therefore the restrictive covenant was not enforced. The judgment stated that the goodwill of the business is not protected as a legitimate interest. Legitimate interest appears to apply when confidential information exists. They saw estate agency as purely competitive and that there was no threat to confidentiality.

The general rule as to what is acceptable and what is unacceptable is to keep the time limit to 12 months or less. To restrict an individual from pursing a career and thereby removing their right to earn a living could be seen as unreasonable if it exceeds this period. It really depends on the type of business, service, product and market too.

Radius restrictions are highly contentious. I know of someone who had a 25 mile radius restriction placed on him when he came out of a business partnership. That restriction left him wondering what to do next with his career as it may have meant having to sell up and move to another area to carry out his profession. Needless to say, a court would very probably throw this restriction out if push came to shove.

Does anyone have any examples of when this practice has either worked well or not, as the case may be?

Information and Consultation: Jaw jaw not war war
How many of you practice an ‘open’ culture and what results, good and bad, have you achieved? I personally, have found an open culture gives better results but I’d love to know your experiences?

Flexible Working: Striking the balance
One requirement here is that, when the employee makes their request for flexible working, they must explain what effect, if any, they think making the change will have on the employer and how, in their opinion and such effect might be dealt with.

I would like to know if any of you have experienced a ‘proper’ request in this way, or if the employee simply states what they want to work and leaves the business to come up with a solution to the request?

How many companies ‘Manage Employee Performance’ sufficiently? Do your staff know what is expected of them in order for them to perform in a capable, competent capacity and conduct themselves in a professional manner? Do you set out reasonable expectations, give adequate training, have regular reviews, explain the importance and potential consequences of warnings and give them a fair opportunity to improve?

I have encountered a number of companies who view the capability and conduct area as a means to simply ‘get someone out of the door’. Does this negative approach always achieve the best results for both the employer and the employee? Again, I’d love to share your thoughts and experiences on this.

Hiring and Firing: The rules of the game
In regards to hiring of employees, again there is a change afoot in the information you may ask for in the recruitment process. Regarding the Immigration and Asylum Act 1988, if you ask one recruit to produce their passport, NI number or working visa, then you are expected to ask all applicants for the same information, irrespective of their nationality or background. This again, may change the face of application forms and such like. Does anyone already use this approach across the board when recruiting and how well has it worked – let me know?

‘Firing’ – here’s my favourite subject. How many companies comply with the Employment Act 2002 (Dispute Resolution) Regulations 2004? How many of you have lost at Tribunal and have had not only a hefty bill, but a steep learning curve in how to do things ‘properly’ should a dispute arise again?

In 23 years (and here I ‘touch wood’) I have never had a case go to Tribunal. I pride myself in dealing with disputes well, hence my speciality. In some ways I would have liked at least one case to go to Tribunal just to see how it works, but it looks as if I will have to go along as a member of the public to spectate instead!

Sick of absence?
Three to go! Managing Sickness Absence – who has had ‘great’ success in this area please? I’d love to know what works really well, as I’m sure many of you have loads of experience in this area.

When you consider it costs UK businesses some £3 billion per year in sick pay, I believe it’s an area that needs real focus to help the employer reduce this horrendous cost. Has anyone found a policy that has produced positive results whilst remaining fair to all?

Maternity extensions
Maternity leave has a number of proposed changes in the pipeline in respect of qualification periods, extension to paid SML, extended length of notice (maybe three months) required from the employee should they desire to return to work and consultation during that period to accommodate their request should it be for part time working. This is designed to give the business a better chance to make necessary changes to their operation should they need to recruit or alter processes. I think we’ll watch this space on this subject for a while longer!

TUPE: is it any clearer?
Finally, our favourite, TUPE! I’ve had a fair amount of dealings in this area with business acquisitions and closures, so I’m quite comfortable with the basic principles involved. It’s amazing though that even after some 20 years of this Act, there is still uncertainty as to what exactly is expected, especially in the realms of transfers in the public sector and changes in terms and conditions. Still, I can sense you yawning as I write, so I swiftly move off of this subject!

I’m looking forward to your responses to some of the points raised above, sharing your successes may help others who are struggling.

The legalities of HR are enough to make anyone resort to chocolate bars and wine, but read on to see if I’ve given in:

Vital Stats:
For all of those ‘singletons’ out there:

Weight – 9st 10lbs (back on track)

Chocolate – two after dinner truffles, just to help the coffee go down!

Wine – two glasses of red with a very juicy steak that had already been well marinated in red wine and garlic – yum!

Boyfriends – two dates, both with Charles (are you surprised)?
First date involved a late afternoon walk in the countryside for some five miles or so. Saw a herd of beautiful fallow deer and a huge Buzzard flew right overhead. This was followed by the relaxed surroundings of a country pub. Observed two toddlers (about three and five) flirting with one another! The young boy was playing hard to get and ‘batting’ his eyelashes, with the girl in hot pursuit – didn’t seem the right way around somehow!
Second date was dinner with Charles, hence the juicy steak. Amazed my weight didn’t swing way up the scales as the dinner was huge with a delicious dessert of raspberry and coconut tart (with cream of course)! Feeling quite comfortable with Charles and would like to spend more time in his company. Still not sure that he’s my Darcy though – early days and all that!

Golf – ‘Grudge’ match with The ‘Polar Bear’ is taking place in the next 48 hours and yes, he has been practising at the driving range. I’ll let you know the results next week!