September, 2021

This was clearly offside!

A regional football team recently posted a job ad for a General Manager vacancy. It stated that candidates should be skilled in aspects of running a football club and having a “proactive approach”. However, the advert went on to say that candidates should NOT apply “if you are looking for ‘a work-life balance’ or have to pick the kids up from school twice a week at 3.30”.

The post, which was subsequently removed, also stated, “This is a hands-on role’ and requires hands on leadership from the front so ‘delegators’ and ‘office dwellers’ please don’t apply”. The apparent intention of appealing to no-nonsense hard workers fell flat and created a backlash on social media, including some of the club’s own supporters who expressed their disappointment and anger.

Another felt the advert expressed “indirect sex discrimination from the outset”. It even prompted the Chief Executive of Citizens Advice to brand it as “discriminatory”.

The news of this job advert shines a light on the wording of job adverts and best practices when seeking to recruit new talent – whilst this was quickly removed, it is important to remember that applicants for a role can claim discrimination before they even become an employee!

  • Posted on September 24th, 2021

Do you smell alcohol?

Malgorzata Krolik was a team leader within Young’s seafood factory in Livingston, having been employed for 11 years, with a clear disciplinary record. In August 2020 she was dismissed due to the company’s ‘zero tolerance’ approach to alcohol.

Ms Krolik arrived at work for a 2pm until 10pm shift and was immediately called into a staff briefing, during which she lost her temper after being told she was being forced to take leave to coincide with work being carried out on the production line. When challenged on her behaviour during the staff briefing Ms Krolik started crying which prompted a team manager to comfort her by giving her a hug and in turn smelling alcohol.

When asked, she explained that she had drunk three beers before work as she had trouble sleeping. She denied that she was under the influence and offered to do a breathalyser test that was available within the premises.  However, Youngs’ ‘zero tolerance’ policy on alcohol meant employees could not drink on the same day they worked, and she was suspended and later dismissed for gross misconduct.

At the disciplinary hearing the employee admitted to having an alcohol problem, suffering domestic stress, and going through menopause.

The ‘zero tolerance policy’ stated that:

 “Where an employee demonstrates a genuine dependency on alcohol and substances. The company will endeavour to help and support the employee, giving them a reasonable opportunity to overcome the problem………The company may also refer the employee to the company’s occupational health service/ mental health service to support the individual. The company may request for access to medical records and rehabilitation programs…’’.

The company took the view that she had not admitted to her drink problem prior to the incident and that she was using alcohol dependency as an excuse for her bad behaviour. Therefore, they decided not to send her to Occupational Health or seek a GP report and failed to act in accordance with its own policy.

The tribunal ruled that the claimant was unfairly dismissed and that the company’s decision to dismiss the fell outside the range of reasonable responses. It did not take adequate account of mitigating circumstances, or length of service and clean disciplinary record. There were no reasonable grounds to believe that the employee was being untruthful about her alcohol dependency. It did not consider the possibility of any alternative sanctions to summary dismissal. It was concluded that her behaviour was ‘equivalent to an employee consuming three beers by 11pm at night, sleeping for a number of hours, and then attending work at 9am the following day’.

The employee was awarded £5454 in compensation.  When policies are in place, it is important that those managers involved in the disciplinary process follow them and apply them.  This litigation could have been avoided had the business applied its own stated policy in this instance.

  • Posted on September 24th, 2021

Lack of proper investigation led to a £5k company lunch!

An HR advisor was dismissed when he challenged a company dinner lady who gave him just three chicken nuggets for lunch. The incident happened during a 12-hour shift when the employee was shocked and “stormed off” after he was given just three nuggets, telling an employment tribunal he was left feeling “antagonised” when he was told he could get three more for an extra 99p.

He “advised” the dinner lady that he was not a “kid” and “forcefully pushed the box back”, adding: “If I wanted a happy meal I would go to McDonald’s”.

A complaint from the dinner lady was submitted about his ‘unreasonable’ behaviour, saying it left her “almost afraid to come into work”, with her stomach “churning”. She reported that she knew the employee was angry by his attitude and by his tone.

The employer dismissed the HR advisor for gross misconduct, accusing him of having “acted violently”. However, the employment tribunal ruled in the claimant’s favour that he was unfairly dismissed, as the matter was not investigated properly. A significant factor in the investigation was that the claimant had explained he was on medication and had been working overtime for almost 12 hours. The tribunal stated that the company “placed significant weight” on the fact that he had been “red faced” making the dinner lady believe he was angry. 

The judge noted that the claimant had advised the investigator that he had health issues and that it was possible his complexion (and demeanour) could in some way, have been connected to his health.

The judge believed that the employer’s investigation fell outside the range of responses open to a reasonable employer and did not reflect the action of an employer acting fairly and reasonably on the facts of this case. 

As a result, the claimant was awarded £840 for unfair dismissal, £3,333.60 as compensation and £1,008 for notice pay/wrongful dismissal.

  • Posted on September 24th, 2021

Bullying and harassment; no place in the workplace

According to the UK Government, bullying and harassment is “behaviour that makes someone feel intimidated or offended” and harassment at work is not only despicable and demeaning but may also be unlawful under the Equality Act 2010. Each person has the right to decide what behaviour is either acceptable or unacceptable; if an individual finds certain behaviour unacceptable and they feel damaged by it, then that individual has every right to say so, and their right to do so will be respected. It is irrelevant whether the person who perpetrated the behaviour intended to cause offence.

Bullying and harassment has no place in the workplace. Not only does a hostile environment leads to poor performance, high staff turnover and a damaged professional reputation, but the psychological damage it can cause to employees can have lasting effects. Therefore, it is the employer’s job to stamp it out and the best place to start is to have in place a strong bullying and harassment policy.

The first step when creating an anti-bullying and harassment policy is to communicate what bullying and harassment is. Examples include:

  • spreading malicious rumours
  • unfair treatment
  • picking on or regularly undermining someone
  • denying someone’s training or promotion opportunities

Bullying and harassment is not only face-to-face. It is important to be clear that behaviour which constitutes bullying may lead to disciplinary action up to and including dismissal if:

  • it occurs in a work situation
  • it occurs during any situation related to work such as at a social event with colleagues
  • it is against a colleague or other person connected to the employer outside of a work situation, including on social media
  • it is against anyone outside of a work situation where the incident is relevant to their suitability to carry out the role.

Harassment is unlawful and harassment legislation covers the victim suffering intimidating or offensive behaviour in relation to protected characteristics, which include: 

  • age
  • sex
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sexual orientation

The most likely example of harassment is verbal or written harassment.  This can involve the sharing of offensive jokes or graphics about a protected characteristic—by email, group chat or social media. Imitating someone’s accent behind their back is another example of harassment.

Harassment is normally characterised by more than one incident of unacceptable behaviour, particularly if it recurs once it has been made clear that it is regarded by the victim as offensive. However, a single incident may constitute harassment if it is sufficiently serious.

To put it simply, it is good practice for organisations to implement a bullying and harassment policy. Not only does it make a statement of intent to create a safe workspace for employees, having such a policy in place can help improve the company culture, reduce staff turnover and generate a positive professional reputation, a positive and accepting work environment. If employees feel safe and protected, they will be more productive and less likely to leave.

  • Posted on September 24th, 2021

A shift in focus: Output over hours.

The Covid-19 pandemic has brought many changes, one being that managers are now reportedly focusing more on their employees output instead of the hours they work each week.

Research by Working Families found that 86% of employers agreed with this change in focus, explaining that it is largely due to a change in working patterns for employees since the start of the pandemic.  

By focusing on employee output this will ensure that deliverables, deadlines and targets are met, regardless of where and when the work was carried out. Output is therefore arguably a stronger indicator of job performance than working hours.

Experts suggest that this is an encouraging shift in perspective within workplaces, as it can improve inclusion, retention and employee wellbeing. Not only this, it also demonstrates a willingness from employers to adopt flexible working within the workplace, leading to a greater work-life balance for all!

  • Posted on September 20th, 2021

Demand for workers remains high as staffing shortages grow

There was a total of 1.66 million active job adverts in the UK at the end of August, with HGV drivers and nurses in the highest demand. The number of new job adverts being posted each week has remained high since early June and in the period from 23-29 August there were 193,000 new job postings in the UK.

An analysis of the data found the areas that worker shortages are among the most acute include HGV drivers, nurses, programmers and software development professionals, care workers and home carers and primary and nursery education teaching professionals.

There are many factors that have combined to cause this crisis. Some of it is short term, with many businesses hiring at once now that the economy has reopened, causing a bottleneck. However, there have been staff shortages in sectors like driving, IT and healthcare for many years. A combination of Brexit and COVID-19 has caused those to get worse and created new shortages in other sectors.

The main challenge that people coming off furlough who are looking for a new role may face is that available roles may be in different sectors to where they had worked before.  While starting salaries for permanent staff are increasing at a record rate, employers should avoid focusing only on salaries and consider things like their workplace’s facilities, parental leave and flexible working policies, pensions or holiday entitlement. Employers often underestimate the importance of these kind of benefits, which are very important to workers. Good employment relations – really listening to employees – matters more than ever.

  • Posted on September 20th, 2021

Redundancies falling despite the impending end of Furlough scheme

The number of collective redundancies planned by employers continues to fall, despite the imminent closure of the government’s furlough funding. The Coronavirus Job Retention Scheme closes on 30 September but there are currently no signs of the associated spike in redundancies that many predicted.

Only 143 employers submitted HR1 forms – the statutory documentation required when any employer plans 20 or more lay-offs – in August, up slightly on July, but less than half the monthly number recorded before the coronavirus pandemic. Those employers planned a total of 12,687 redundancies, an 11% fall on July and a fraction of the 155,576 planned job cuts in July 2020. 

Many had forecast that the winding down of the furlough scheme would lead many employers to let go of workers. A British Chambers of Commerce survey last month found that 18% of firms were likely to make staff redundant because of changes to the furlough rules. Latest data from HM Revenue and Customs showed that there were 540,000 employers with 1.9 million staff on furlough on 30 June 2021, a decrease from 31 May when there were 2.4 million employments on furlough. Since the start of the scheme a total of 11.6 million jobs have been placed on furlough, at least in part.

  • Posted on September 20th, 2021

Older workers ceasing employment earlier due to COVID

Older workers have been exiting the workforce earlier in their lifespan since March 2020, according to new Department for Work and Pensions (DWP) analysis. Its new report which focused on workers over 50 years old, found that being sick, injured or disabled was the main reason why employees left the workforce. In 2020, the average age of exit for men was 65.3 years and women 64.3 which was a decrease in age from previous years.

Often, mature employees possess a goldmine of skills, pragmatism and lived experience, all of which contributes to team diversity and productivity. It is important that employers focus on knowledge transfer between younger and older employees to prevent organisational knowledge loss and capture that precious corporate memory.  There are many ways in which employers can retain valuable skills in their more mature employees, looking at flexible or part time working options and with the reported shortage in labour and skills in the UK currently, a part time, experienced worker is better than no worker.

  • Posted on September 20th, 2021

Teacher unfairly dismissed

A maths teacher was unfairly and wrongfully dismissed after a pupil alleged that he was forced into a cupboard as a punishment, a tribunal has ruled.

The employment tribunal ruled that a teacher with 10 years’ service and a clean record was not at fault because the school did not consider all of the evidence when they conducted an investigation and disciplinary.  It found that the student had 364 entries on his behaviour record for abusing staff and pupils and disrupting classes and had previously also told another teacher that he would “make something up about her” after she told him off for bad behaviour.

The tribunal ruled that for a well-thought of teacher of good character with a good disciplinary record, dismissal was an “extremely harsh sanction” and not within the band of reasonable responses. 

During a class, the teacher noticed that the pupil was not engaged and, using his normal style of class management, asked him to stand at the back of the classroom by the cupboard. He subsequently “joked” that the pupil should get in the cupboard, which he did for a “short time”.

The pupil subsequently complained that he had been “forced” into the cupboard. An investigation ensued and the teacher was asked to make a statement. He was not told of the allegations against him, nor was he told how seriously the school was treating it, so he made a “quick, handwritten statement” because he was trying to complete it before his first lesson. He was immediately suspended on full pay.

The same day, 13 pupils out of the 17 who were in the class when the incident occurred, gave statements about the lesson to deputy head which the tribunal noted were “inconsistent”.

At his investigatory interview the teacher emphasised that the situation had been treated as a joke at the time, stating that the pupil was laughing and that he had remarked something like “it’s actually quite cosy in there” as he left the cupboard.

The investigation notes, in which remarked that the pupil was 14 years old and 5’7” tall, so it would have taken “time and effort” for the teacher to force him into the cupboard. But she concluded that corroborating statements meant the incident was likely to have happened.

At the subsequent disciplinary meeting, the teacher stated that the investigation was unfair, suggesting collusion amongst friends; and reiterating the pupils’ “appalling” behaviour records. The tribunal said that “at no stage” of the disciplinary procedure were their behaviour records obtained. The teacher was dismissed but appealed and again asked for the pupils’ behaviour records to be considered, but the appeal was not upheld.

The tribunal found that the pupils in question had 1,705 entries on school records, between them for dishonesty, abuse to teachers and pupils, and disruption to lessons.

The tribunal also found there were faults at each stage of the process that led to “imbalanced or baseless conclusions” and said that because of the seriousness of the allegations against the teacher and the implications for his career, “the most thorough and careful of investigations was required”, but that this investigation “did not meet that standard”.

​​This case highlights the importance of getting the dismissal process right and evidences the importance of pausing a disciplinary process in order to ascertain further facts and consider all evidence before any decision is made.

  • Posted on September 20th, 2021

Moaning worker unfairly dismissed

A mortgage advisor who was sacked for “moaning” about her statutory rights was unfairly dismissed. The employment tribunal found that Mrs McMahon, who worked as a new build and mortgage advisor was unfairly dismissed without reason when a director concluded that she was “always moaning” following a complaint about her commission.

Management later claimed the reason for her dismissal was for conduct and performance, but the tribunal found that those who had performed worse were not dismissed. 

The employee had a “unique” role, in which she would travel to sites and meet clients viewing show homes, on a hybrid working arrangement. She worked long hours as a result and would often work 12 hours a day with no lunch break, as well as weekends. 

The employee was entitled to commission alongside her basic salary and was one of the top performers in the company. Figures showed that during the beginning of 2019 she surpassed her colleagues’ application numbers, and was given champagne as a reward for having one of the highest conversion rates in the company.  

Having accrued a significant amount of commission, she emailed the payroll team to query why this had not been reflected in her latest payslip but received no reply. She then asked for a meeting with her manager. She told the tribunal that she wished to discuss several matters, including her working hours and her commission. She told her manager that her working hours were “stressing her out” and making her ill, and that she wanted to reduce them. It was agreed that this would be raised with the directors. 

The following day, the employee was told to attend the office. When she arrived, a director was there to meet her and dismissed her without an explanation. However, the director told the tribunal it was because her performance was “not up to par” with the standards and expectations of the business.

The claimant raised a grievance and set out that she had not been provided with reasoning for her dismissal, evidence supporting any reasoning, warning, time to prepare or an opportunity to be accompanied at the meeting. She also argued that a reasonable dismissal procedure was not followed. 

Her grievance was dismissed and the firm claimed she had accepted the allegations and showed a “lack of interest”. The letter also expressed “surprise” at her complaint because no appeal had been submitted. 

The tribunal ruled that the claimant was a victim of unfair dismissal, wrongful dismissal and unauthorised deduction of wages. The employment judge said that it was clear that while she asserted a number of statutory rights in her meeting, it was merely felt that she was “moaning”. 

The claimant was awarded £19,552.33 for unfair dismissal and £2,736.38 for unlawful deduction from wages. She was also awarded £586.81 for unpaid commission and sick pay, and £252.41 for wrongful dismissal.

 

  • Posted on September 9th, 2021

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