When does capability kick in?
January 30, 2009
A friend of mine is in a tricky position at work, and when he was describing it to me the other day, it got me thinking as it’s quite an interesting situation from a HR point of view.
My friend is a project manager, and therefore oversees jobs, delegating work to people in his team and ensuring the different tasks are completed on time and in budget. The projects have very specified fees, and time spent on a project is costed to that project through a project management system that logs timesheets and project codes. Therefore work has to be efficiently completed to enable projects to be completed within the budgets allocated.
This is all really straightforward stuff, but what happens when you have a situation with an employee who is perhaps not able to complete works in the most efficient manner because of an illness or disability? In my friend’s case, one of the employees that had been allocated to his project suffered a stroke a few years ago, and as a result has not worked as fast as he was previously able to since then, and struggles to pick up new skills and knowledge. Therefore the tasks my friend allocates to this employee cannot be completed as quickly or effectively as was perhaps quoted, yet the employee’s time still needs to be allocated to the project so that the company can charge for him and pay his salary.
So my friend is in a quandary: on the one hand the company wants to make ‘reasonable adjustments’ so that the employee is able to continue to work, which in this case means giving him fewer tasks or more time to complete tasks, but on the other hand the project manager has to deliver the project on time and in budget, which will be seriously hindered by this employee’s capabilities. What is the answer?
I feel this case is lodged right in between the ‘reasonable adjustments’ element of disability/sickness legislation and the statutory capability procedures. Do the adjustments become ‘unreasonable’ when it involves not delivering projects within the fee and therefore losing money for the company? Should the employee be taken through capability procedures? I think it is a really interesting debate and I would be really happy to receive your feedback and ideas.
Happy parents make happy employees
December 15, 2008
Some family friendly processes have become part of general employment law and practice, such as parental rights to request flexible working and parental leave. Others are more ad hoc and individual companies implement a variety of ways of engaging employees that have family or parental commitments. It makes business sense to look at the different backgrounds, interests and outside commitments of both current and potential employees. Firstly, the more narrow the description of an ideal employee becomes, the more narrow the pool of potential candidates becomes as well, and you may find yourself competing in ever decreasing circles for the employees who seemingly have the right credentials and outside commitments (or lack of them) but may not have the best set of skills and experience for the job you are recruiting for. Having a diverse workforce, with employees from different backgrounds, age, family commitments etc brings with it a diverse range of previous experience that can add real value to the business.
An inexpensive scheme for parent employees is the childcare voucher scheme, which I wrote about a few months ago (‘help staff benefit from cheaper childcare’, April 17, 2008). This basically works through salary sacrifice whereby the cost of vouchers is deducted from an employee’s salary before tax and NI deductions are made, therefore the tax and NI paid on the remaining amount is reduced. Normally the cost to administer the scheme is offset by the NI savings that the employer makes on the reduced gross salary payment to the employee, so this is what makes it a winning scheme all round.
The childcare vouchers option has become very popular in recent years, but the affordability looks set to be challenged in the future following a High Court ruling that led to the benefit entitlements for women on maternity leave being changed on 5th October this year (‘New maternity rights from 5th October’, September 23, 2008). Now that women on maternity leave will be entitled to retain the same benefits throughout their leave, employers may end up having to pay for vouchers the employee may already be taking through the scheme, even though the vouchers are based on salary sacrifice and the employee will be entitled to less or no salary due to maternity leave. This issue is causing many employers to rethink the scheme if they already have it, or may cancel plans to introduce it in the future.
Some companies think quite creatively about what sort of incentives or benefits they offer to employees who are parents, from crèche facilities on site to annual events involving all employees and their families. Someone I know works at a large retailer, and employees who are parents in that company are given filled party bags for each of their children at Christmas each year, which I think is a great idea.
What does your company do for employees who are parents? Do you think you work for a family friendly employer? What do you think of the risk to the childcare voucher scheme following the changes to benefits on maternity leave? If you have any thoughts on this or any other article on the site, leave a comment.
The DDA – know your responsibilities
November 15, 2008
Yesterday’s post looked at the Disability Discrimination Act (DDA) and the definition of a disability. The next question is ‘what is an employer expected to do under the DDA?’
The law is there to protect disabled workers from discrimination, and this can take many forms, including harassment, victimisation, prevention of opportunities such as promotion or choosing a candidate that does not have a disability over a candidate that does, when they are equally capable but one has a disability. An employer has the duty to make ‘reasonable adjustments’ to the workplace or working practices for a disabled employee – these are adjustments that are required to prevent a disabled employee from being at a disadvantage in comparison to a non-disabled employee, due to any practices or arrangements the employer puts in place. The word ’reasonable’ is important – employers are not expected to spend huge amounts of money or change the workplace significantly if it is not feasible to do so. The ‘reasonableness’ would be related to a number of things, including cost, the disruption that would be caused by the adjustment, the size of business and the available resources to make the adjustment (which would include things like government grants etc). So, the types of adjustments or considerations employers might make include:
- Ensuring available access for workers with mobility related disabilities (e.g. access for wheelchair, mobility scooter, disabled lift)
- Flexible working hours for the disabled worker
- Allowing time off for rehabilitation, medical appointments etc
- Providing alternative written documents (e.g. with large print for visually impaired employees)
- Providing additional or alternative support and supervision
There is so much case law on the DDA, and it is a very tricky subject to deal with as employers. However there are a lot of organisations that can offer help and advice, including ACAS, the Department for Work and Pensions (DWP), and the CIPD, and I would urge anyone with a disability related workplace query to contact one of these organisations or look on their websites.
The DDA – know the law
November 14, 2008
Disability is a subject many employers find difficult to deal with in the workplace, and often choose to ignore by avoiding (consciously or unconsciously) employing disabled workers altogether. However the Disability Discrimination Act (DDA) 1995 applies to all employers, and the legislation is something that organisations need to be aware of. The DDA makes it unlawful to discriminate against any person because of their disability. In the workplace, this applies to existing employees, plus any potential employees that apply for a position with the company, and any ex-employees (e.g. in giving a false reference due to a disability).
The first thing to consider is ‘what is a disability?’ In the DDA, a disability is defined as ‘a mental or physical condition which has a substantial and long term adverse affect on the employee’s ability to carry out normal day to day activities. Long-term means that the condition must last, or be likely to last, for more than 12 months’. This definition means that there are a vast number of conditions that will come under the DDA definition, and the list is increasing all the time. The first thing that many people think of when considering disability is someone in a wheelchair, but this type of disability actually only covers a very small percentage of the disabled people in the country. The DDA definitions of how a person’s ability to carry out day to day activities can be affected include: mobility, ability to lift or move everyday objects, speech, hearing, eyesight and understanding of physical danger (this is not the whole list). It is very important to remember that many disabilities are not visible (particularly mental illness) and therefore not obvious to an employer.
The next consideration is ‘what is an employer expected to do under the DDA?’, and this will be covered in the next post.
Racism still evident in the NHS
November 7, 2008
A survey carried out by the Health Service Journal (HSJ) on every Primary Care Trust and NHS Trust in England has shown that racism is still very much alive in the NHS. The analysis of employment relations statistics, as well as recruitment and labour data has identified some very worrying findings.
231 organisations were involved in the survey, and the results showed that 16% of the workforce is made up of employees from black and minority ethnic backgrounds, yet BME staff are ‘grossly under-represented among senior management’, and are also involved in more than twice as many bullying and harassment cases, and capability meetings.
This is depressing news. In a week where history was made in the USA with the election of a black President, the fact that there are still barriers to BME employees in one of the UK’s biggest and most prevalent organisations is extremely disconcerting. It shows that the UK still has a long way to go in the process of changing attitudes and working processes if Government ideals and aims are to be achieved.
If you want to read more about the survey, and some of the responses from HSJ readers, click here.
Today’s climate: a good example of the benefits of older workers
September 19, 2008
Us HR people are used to preaching the business benefits of diversity in the workplace, and I think the massive national catastrophe it appears the UK is now facing perfectly demonstrates the argument in relation to our older workforce, particularly in relation to HR and senior/executive management positions.
What do I mean by this? I mean that thousands of people gain their CIPD qualification every year, moving through the ranks to middle and senior management. Likewise many top level managers across industry have moved into these positions in the last few years. At the other end of the age bracket a lot of the HR professionals and managers who have the experience to deal with the problems thousands of companies are now facing have retired. So despite the fact that us fresh faced CIPD grads may have all the newest people management theories and ideas to hand, quite a lot of us were doing our GCSEs the last time the country faced a recession (or were maybe even younger than that!) Skills such as dealing with large scale re-structure or redundancy are in high demand at the moment, and many people who have been in the profession less than 10-15 years will have not seen anything like the current conditions before, or were not in a position to deal with them the last time and therefore have no experience to draw on.
There’s a lot of help and advice out there for companies facing these issues and requiring skills of this type, so I don’t think this is a massive concern. I just think that this situation highlights the benefits of having a good age range within organisations, in order to deal with the day to day needs of the business through a combination of theoretical knowledge and practical experience, and to look at things from a variety of perspectives.
Equal pay victory will mean a big increase in further claims
August 1, 2008
This week the outcome of a Court of Appeal case has opened the door to thousands of potential equal pay claims for women working in local authorities across the country. Women working for local councils in the North East had been battling for four years to claim for years of bonuses they should have been entitled to when their male co-workers received them.
This situation came about with schemes introduced in the 1990s to try to resolve the differences in pay between male and female local authority workers. Male workers would have received a drop in pay as a result, so they were given payment protections which meant their salaries were topped up to lessen the blow of the equal pay schemes. The women in the ‘landmark’ case have successfully argued that this simply reinforced the disparity in pay rather than resolve it. The councils tried to argue that this was a practical, and therefore lawful way of dealing with the situation, but failed and will now have to pay out large sums of money.
This will pave the way for many more claims of this kind, and there is now the fear that this will add more pressure to the legal system which has already been dealing with 44,000 equal pay claims in the last year.
Beware of LIFO!
July 30, 2008
Recently I wrote about an age discrimination case relating to a redundancy that was quite complex. Another age issue relating to redundancies is the ‘last in, first out’ (LIFO) option that many companies resort to when handling this situation.
There have been many cases concerning the LIFO option, the outcomes of which have often been contradictory, however it was until recently widely felt that this is a safe choice when making redundancies. Now though, it must be remembered that the youngest employees are much more likely to be dismissed due to this reason, because they have had less time in employment to build up a longer length of service. Companies will probably only be at risk of a discrimination claim if it is clear that the profile of the workforce means that most LIFO victims will be younger workers, however LIFO should be applied with caution.
Another reason to only use LIFO if there is absolutely no other option is that when you are losing a proportion of the workforce, you ideally wish to keep the most effective and promising employees, and these may be the last ones in. Clearly, the most appropriate way to handle redundancies is to look at what is needed strategically, find a fair way of measuring this with more than one measurable, and apply the formula properly. This will leave the company with the best workforce to carry the business forward, and will also give the fairest treatment to those losing their employment, which will in turn mean that the ones left behind will have more faith in the employer going forward.
Do maternity rights damage women’s careers?
July 16, 2008
Recently it’s been all over the news that Nicola Brewer, Chief Executive of the Equalities and Human Rights Commission has voiced her opinion that maternity and family friendly reforms have actually damaged women’s career prospects, because they reinforce the traditional model of women being the primary carer for their children rather than the father. Brewer argued, in a newspaper interview, that many employers are now avoiding employing women of childbearing age because of the risk that they may take up to a year’s maternity leave and/or exercise their right to request flexible working (even though fathers have this right as well). A while back, Sir Alan Sugar made similar comments about the negative effects of discrimination law on female candidates.
Brendan Barber, General Secretary of the TUC has hit back at Brewer’s comments, saying that the situation with the ‘myth’ that women’s job prospects are damaged by family friendly rights should be resolved in the future if families are able to transfer part of the maternity leave entitlement to the father, allowing equal time off for each parent. Barber said that ideally flexible working rights should be extended to all workers so that it is not a particular group that is affected by reluctant employers. I’m not so sure though. I think that the issue of employers assuming that employing women of a certain age will bring a bagful of people management headaches is down to much more than just the rights available to women. There’s the issue that women on the whole are paid less than men, which means that even if men are in the future able to take extended parental leave when their partner has a baby, it’s likely that the mother will still take all the leave as she will probably be the lower earner, and not many families can afford to drop the bigger wage. I’ve already agreed with my partner that when we start a family, if the maternity leave rights are available for men (which they probably will be by the time we have children) then whoever is the lower earner will take the leave. Until there’s more equality in pay, I don’t think rights for men or women will have the effect of completely resolving the issue over employers’ assumptions. But this is a vicious cycle because the fact that women take career breaks to have a family contributes in itself to the equal pay issue!
What’s your opinion on this subject?
Controversial new law on discrimination planned
June 27, 2008
Yesterday Harriet Harman announced plans for a new Equalities Bill, expected to be introduced in the next Parliament which starts in November. Whilst some of the plans sounded like a good idea and were welcomed by many, certain controversial elements appear to have caused a backlash from members of the public, if the listeners of Radio 1 and visitors to the BBC website are anything to go by.
The Bill will replace existing pieces of legislation that make it unlawful to discriminate on the grounds of age, sex, race, religion or belief, disability or sexual orientation, which will hopefully make it much simpler for employers to understand and manage this within their organisations.
However, the Bill will also allow employers to use ‘positive discrimination’, whereby staff can be appointed on the basis of their gender or race, if they have the same skills. The idea is that this will increase diversity in workplaces as employers will start to introduce it without the risk of discrimination claims. I think this is the most ridiculous thing I have heard in a long time and I’m convinced it is going to backfire even more than the statutory dispute resolution regulations have done.
With this new law, an employer can choose a woman over a man simply because they want more women, as long as the candidates are similar in ability. But they could also lawfully choose a man if they wanted to, so how is this going to stop those bosses who, like Alan Sugar said a while back, want to only employ men because they think women might drop them in it when they want to have a baby? The answer is, it’s not going to stop them at all. And how are employers going to prove that the candidates they were choosing between had equal abilities? Yes, they can show the criteria they used for selection but I can imagine a huge grey area over how similar they need to be and I think that lots of employment tribunals will take place because of this point. There are always ways in which you can distinguish candidates because you measure them on various areas relating to the job and some will be better than others when measured across the board.
We’re being told constantly that there’s a ‘war for talent’ and we need to concentrate on finding and developing the best people to make businesses prosper in these difficult economic times. Surely we just want the best people possible then, regardless of who they are, where they’re from or how old they are? There are definite business reasons for having a diverse workforce, but I think trying to force this at the expense of millions of people who will just feel let down and disadvantaged themselves is not the right way to go. What might be more useful is guidelines from the Government about how to recruit and retain top quality staff from any background without discriminating, and better promotion of the diversity agenda, with information resources and other schemes. I know these things already exist but surely putting some sort of statutory commitment to these arrangements would be a better starting point than introducing yet more confusing and potentially damaging legislation? Also, if we’re trying to make sure men and women have equal opportunities for a career and salaries, then why is it still only women who can take a year’s maternity leave?
I don’t know what the answer is to the gender pay gap and inequality of opportunities for all people, but I’m just not convinced that this part of the Equalities Bill is it, and from comments I heard on the radio yesterday and the ‘have your say section’ on the BBC, I don’t think I’m alone in my opinion. There were lots of great comments to read, but I think my favourite one was this:
As an old woman from an ethnic minority I would like Harriet Harman’s job. I should be allowed to have it as I’m old, a woman, and also from an ethnic minority so I score on all points. I have no qualifications however but neither has she by the sound of it!
This is typical of many of the comments so far, so although the Government may be well-meaning in this development, they don’t seem to have communicated it well enough to win over the people that matter – the voters.
What do you think of this legislation? I’d be really interested to hear other people’s thoughts.