Supermarkets lead the way in new job opportunities
January 28, 2009
Supermarket giant Asda has announced that 7,000 jobs are to be created as part of plans to extend a number of existing outlets and the opening of several new stores. The supermarket sector is one which appears to have fought off the recession better than other industries such as retail and car manufacturing, and recently other supermarket chains have announced growth and new jobs to be created, including Sainsbury’s, Tesco and Morrisons.
Many of the new jobs at Asda will be aimed at people who have been unemployed for a long time, presumably as part of local employment partnerships in conjunction with the Job Centre. The chain is also intending work with Remploy, which is a government agency that provides:
“employment services and employment to people experiencing complex barriers to work” (www.remploy.co.uk)
Another company that has announced new jobs to be created is BSkyB, with 1,000 new vacancies to be made available due to the continuing growth in demand for services.
This is excellent news after weeks and weeks of announcements of redundancies in many industries including retailers such as M&S and car manufacturers such as Nissan. Recently Business Secretary Peter Mandelson announced a £2.5billion ‘lifeline’ package for the struggling car industry, a lot of which is to guarantee loans taken for lower carbon initiatives, and some of which is to provide funding for training and support for workers in the industry.
The jobs crisis is not just in the UK - the International Labour Organisation (ILO) has said that the global economic crisis could lead to the loss of 51million jobs worldwide this year, and the worst affected places will not be developed countries such as the UK but those who are still developing, such as countries in North Africa and the Middle East.
Pressure and CRB checks
December 4, 2008
The horrific case of Baby P and the failures of Haringey Council’s social care services to identify the ongoing physical abuse that had been inflicted on him, leading to his death, has been an extremely prominent news item in the last few weeks. Three members of the council have been suspended, and there have been calls for senior social and care services personnel to resign.
Now, a report that was commissioned by Ed Balls, children’s commissioner and carried out by Ofsted, the Healthcare Commission and HM Inspectorate of Constabulary has found that the process of gaining CRB checks for staff working in social healthcare for the local authority is unclear, and described it as ‘not good practice’. It seems that some staff have been working before their CRB checks have been completed, possibly without supervision. The report also said that the fact that the council relies heavily on agency staff is a problem because children need continuity in the support they receive, which is not provided with different agency staff all the time.
The issue of gaining CRB (Criminal Record Bureau) checks for staff can cause difficulties for some organisations. Many services, such as in social care, should not be provided without first gaining a check on a member of staff, but with major resourcing problems and the fact that a CRB can take weeks to come back, it’s no wonder some organisations feel as though they need to cut corners and let staff work before they are properly checked, because they simply have to provide staff to support the service users. In a previous role I worked for a provider of social care, and contracted employees were not allowed to start work before their CRB check was returned, as well as two satisfactory employment references. However this did cause issues with insufficient numbers of support workers, and this meant that the company was forced to rely heavily on agency workers on a constant basis.
I think the failures of Haringey Council in this case are appalling, but it’s important to remember that social services across country do a fantastic job the on the whole. I think the services are portrayed pretty badly in the media, with news stories always focussing on the negatives and characters on film and TV always portrayed in a really awful way. It’s a difficult job to provide a continuous and consistent service as well as keeping security and safety standards as high as are needed, and I think it would be a good start if the amount of time it takes for a CRB check to be returned could be reduced. Last time I applied for one it was at least three months before I received the paperwork.
Child protection is a constant job for providers of care and support services, and it is necessary for service providers to constantly review their processes and procedures, so that another horrendous case such as Baby P doesn’t happen again. However it needs to be recognised that this is a very difficult job, and more media attention should be given to the successes of support providers as well as the failures.
Big impact of immigration law
July 11, 2008
Remember back in February when the Immigration, Asylum and Nationality Act 2006 came into force? This legislation put more responsibility onto employers to ensure they employ only legal workers, with penalties of up to £10,000 for companies found to be flouting the law and employing workers that do not have permission to work in the UK.
This legislation has already had an incredible impact, with 352 businesses having been caught employing illegal workers since February, leading to more than £3million in fines. In 2007 less than 15 companies were caught for this!
To make sure they are not falling foul of this legislation, employers need to ensure they make the necessary pre-employment checks when taking on any new staff. This means seeing original proof of eligibility to work in the UK, such as a passport, or birth certificate combined with a document indicating a UK National Insurance Number. There are specific lists of relevant documentation that can be provided, for more information see the Border and Immigration Agency (BIA) guidelines ‘prevention of illegal working’. It is important to remember that this documentation needs to be provided prior to the start of employment rather than when the employee has already started.
Agreement reached on opt out of working time directive
June 10, 2008
After lots of debate and negotiation, the UK Government has finally agreed a deal with the EU that allows UK workers to retain the right to opt out of the working time directive, which limits the number of working hours per week to 48. This agreement was reached after the UK compromised on the agency workers rights legislation last month, which will give temporary agency workers the same employment rights as their permanent colleagues after 12 weeks’ service. Many workers will no doubt breathe a sigh of relief after today’s news, as they are able to retain their overtime hours in excess of 48 hours per week which many people rely on for their income.
After many businesses feeling angry at the UK giving in on agency worker rights last month, this news might be a welcome silver lining as the right to opt out provides them with more flexibility at different times of the year. The rights for agency workers could have been agreed at a much earlier stage than 12 weeks’ service, so it could have been worse.
More laws won’t improve employment
June 2, 2008
The Business Secretary, John Hutton, has made a speech in which he stated that the ‘end of an era’ of new employment legislation has arrived, and that the UK needs employment strategies that protect the rights of employees without decreasing the flexibility of the labour market. This clearly related to the new rights for agency workers that was agreed last week, which many people feel will damage UK businesses due to the decrease in labour flexibility. Hutton talked about the opinion that new laws automatically protect employees, and said this was not necessarily the case.
I have to say that to some extent I do agree with Hutton on this. Perhaps I’m naive, and because I’ve not worked in a large number of organisations, I’ve been lucky enough to avoid the experience of ‘rogue’ employers that these laws are there to prosecute. But I do feel that sometimes the large amount of legislation does have a negative effect on employment opportunities. For example, I wrote ages ago about comments made by Sir Alan Sugar about how employers should be able to ask at an interview what plans female applicants have for children and how they would cope with full time work as well as childcare. His argument was that discrimination law restricted women from getting jobs because the employer isn’t able to ask these questions, so often the woman would be turned down on the assumption that she would cause issues later on when she had children. Whilst I think this is a ludicrous thing to say, it does show how employers think about these issues when recruiting. I have had conversations with managers who have been reluctant to recruit some people due to the fear that, should they turn out to be a bad decision, it wouldn’t be straightforward to get rid of them. Now I know as well as the next HR person that these attitudes are bad for business and are in complete opposition to the purpose the legislation was created for, but there’s no denying that these feelings are common in management teams, and re-education will only go so far to resolving the issue.
There’s also the problem that there have been many cases that appear to be completely unfair on the employer simply because of the restrictive legislation. For example, a dismissal case where the employee is able to successfully claim unfair dismissal due to a procedural error on the employer’s part, when the employee had been proven to be stealing from the company. Yes, in that situation compensation would be reduced, but it still looks pretty bad to a manager outside of the legal or human resources professions. Sometimes I think employment claims are getting a bit like personal injury claims – more ‘dodgy’ claims like this one means that the genuinely victimised or unfairly dismissed employees lose credibility in their claim and this means the law is not doing what it is meant to do.
Whilst I know there are definitely unscrupulous employers out there for whom the law is intended, it does sometimes restrict the activities of others due to the perceived risks in recruitment, or the need to spend months going through a process with a poor employee when both parties know they’re just in it for the sake of legislation. We know the statutory dispute resolution procedures are due to be repealed as they haven’t been as successful as planned, so why introduce loads more legislation now when we haven’t even managed to get that right?
New rights for agency workers
May 30, 2008
The ongoing debate and battle over legislation relating to agency worker rights came to a head last week when a deal was struck between the TUC, CBI and the Government that entitles UK agency workers to employment rights equal to their equivalent permanent workers (in terms of salary) after 12 weeks working with the same firm. This issue has been going on for ages – I last wrote about it back in February, and whilst Gordon Brown originally backed the CBI view that adopting the EU Directive on agency worker rights would damage the flexible labour market that the UK enjoys, he changed this opinion last week. This is seen as a bit of a compromise, as the EU wanted the qualifying period to be shorter, however it seems that the PM’s hand was forced somewhat as the hope is that by agreeing to this legislation, the UK will be able to opt out of the working time directive. This law limits the legal working week to 48 hours, and UK workers who are currently able to opt out and work overtime hours over and above this would potentially lose a large proportion of their income if a limit was imposed. The news has been received well by the TUC, however other bodies such as the CBI and the CIPD have criticized the adoption of the legislation as they feel it will be very problematic for businesses to handle.
I don’t use many temporary workers, and if I do we would pay them a comparable rate of pay to what they would receive if they were permanent anyway, so this isn’t too much of an issue for me personally, but having worked in the past for a company that relied heavily on temporary staff I can imagine the difficulty this legislation is going to pose for some organisations. It will require a big pay evaluation exercise in industries where many temporary workers are employed, to ensure than no members of staff receive lower pay rates. The alternative, to employ people in contracts that are less than 12 weeks long, is completely impractical and the number of available temps that have not already had their 12 weeks exhausted will run out pretty quickly. Where I used to work there was a ‘bank’ staff system and we had lots of long term temporary workers that came through an agency but worked additional shifts on a regular ad hoc basis.
Some companies have already said that they may respond to the legislation by employing fewer agency workers and creating a flexible workforce by developing more flexible working arrangements for their permanent staff. If this is a widespread occurrence, there will be fewer temporary assignments available and potentially the only ones on offer will be less than three months long. I’m finding it difficult to see how this will improve life at work for the 1.4 million agency workers we currently have in the UK.
When is an employee an employee?
April 23, 2008
Whilst the terms ‘employee’ and ‘worker’ may mean the same for many people, employment law distinguishes between the terms, and there are different rights relating to the two groups. An example of a major difference is that ‘employees’ may make a claim to an employment tribunal for unfair dismissal, whereas a worker may not. Employees also have a right to a contract of employment, parental rights such as statutory maternity leave and pay, rights connected with belonging to a Trade Union, and many other rights that workers do not have. It is important to understand how the two can be distinguished, and that simply saying that someone is not an employee, or even denying the fact by failing to provide a contract of employment, may not be enough to prove to a tribunal that the person was ‘self employed’ and not employed by you. This is a particularly common issue with companies using specialists on a consultancy basis, or contractors, for example on a building site, and the topic is quite closely related to the recent developments in the laws relating to agency worker rights.
There have been many cases that have had to determine a person’s status within a company, in order for them to be allowed or restricted from making claims relating to employment rights, one of the most famous being Carmichael v National Power in 2000, which went all the way to the House of Lords. This case looked at whether employees who worked on a casual basis as and when required were ‘employees’ and therefore entitled to a contract of employment (they eventually lost). Whilst it is perhaps not something for the HR Team to consider every day, it is nevertheless an important aspect of employment law that can bring expensive and time consuming consequences for the unprepared organisation.
To determine whether a person has ‘employee’ status in a case where this is being argued by either party, an Employment Tribunal (ET) would need to determine if the claimant works under a contract of service (employee) or a contract for services (self employed contractor), if this is not specifically stated in writing. This would be done by applying a number of tests, looking at different areas of the employment/working relationship to determine exactly how the company and person were contractually bound. The rest of this article will look at aspects of control and integration, and the next one will look at financial factors and what is called ‘mutuality of obligation’.
Control
This looks at how much the employee is under the direction of somebody at the company. This is the oldest way the courts tested for employee status and was used in a case in 1880. Normally, the more skill a person has in their role, the less likely they are to be under the instruction of someone else, although this isn’t one of the strongest ways to test the relationship.
Integration
An individual who is integrated into the business is more likely to be an employee. The ET would consider how integrated the claimant was/is, which could look at the length of service between the parties and the level of work provided. In one case (Franks v Reuters) the claimant indirectly worked for the defendant through an employment agency for over four years on a permanent basis and was therefore considered fully integrated. A key aspect of this test is whether the employee’s work is integrated into the organisation’s work, or is an accessory to it; so if an employee is only used as and when required, e.g. to fill in during holiday time, then they’re more likely to be an accessory to the business (but if they did this on a regular basis for a long time then they would probably be considered integrated).
The prevention of illegal working
February 26, 2008
On 29th February the provisions of Sections 15-25 of the Immigration, Asylum and Nationality Act 2006 come into force. These provisions have new obligations for employees recruited after this date.
The changes mean that there are new penalties for employers who employ illegal workers, essentially a possible fine of up to a maximum of £10,000 per illegal worker (this is double the previous fine). The purpose of the changes is to make it harder for illegal workers to remain in work, and easier for employers to ensure their employees are legally allowed to work in the position they have been selected for.
Employers who knowingly employ illegal workers will have no argument against this legislation, and in these cases there may be a penalty of two years’ imprisonment or an unlimited fine for a company director or manager who knew the worker was illegally working.
So what can employers do? The new Act allows employers to use a “statutory excuse” to defend any legal action as a result of employing illegal workers. To use this defence, employers must be able to show that initial checks on specified documents were carried out prior to the employment of the employee. Documents include a valid passport or birth certificate combined with a document indicating a UK National Insurance Number (e.g. P45). The type and number of documents needed depends on the level of entitlement to stay and work in the UK, and there are separate document lists for workers with permanent or temporary entitlement.
In addition to the legal issues surrounding employing illegal workers, employers are advised to consider the potential discriminatory issues relating to pre-employment checks. Only requesting documents from particular groups could lead to racial discrimination claims, as many workers from, for example, minority ethnic groups, are British Citizens. The best practice is to build the requirement for specified documents into the recruitment process and ask all applicants or successful candidates to provide the documents before employment starts. For example, the conditional offer letter could state that the offer is subject to satisfactory proof of eligibility to work in the UK, and provide a list of documents that need to be provided.
Full details of the requirements of the new provisions, including how to avoid discrimination, are specified in guidelines from the Border and Immigration Agency (BIA) entitled “Prevention of Illegal Working” and can be found here.
The mistreatment of agency workers
February 19, 2008
Following on from my previous post about agency worker rights (4th February), I’ve just read that Unite, a large Trade Union has conducted an investigation into the treatment of agency workers.
The investigation was carried out in a Cook Report style, with an undercover manufacturing worker, “Simon”, working for six weeks for apparently reputable employment agencies in the Wolverhampton area. The results weren’t good: Simon was paid a poor wage and apparently had illegal deductions taken from his wage, as well as being asked to operate machinery without appropriate training. The Union claims that this sort of treatment constitutes exploitation rather than flexibility, and the life of an agency worker is one of “hardship, desperation and a weekly struggle to make ends meet”.
Having carried out temporary assignments for agencies myself in the past, I understand that there is a certain amount of insecurity due to the lack of rights for agency workers. However I have also employed agency workers who turn up as and when they wish, with no communication and the attitude that they do not need to behave in the same way as a “regular” employee – so it works both ways. In the past I have enjoyed many benefits of temporary work, such as fitting it around my education, holidays, and anything else I wished to do at quite short notice; things that are not as easy for me to do now I am in full time permanent employment. It is possible that legislation that brings new rights for agency workers will also bring new obligations that reduce the level of flexibility they are able to enjoy.
I’m sure there are some agency workers that are exploited by unscrupulous agencies and employers, but I’m not particularly convinced of this by one example reported over six weeks. There are a number of people and organisations that don’t agree that there is a problem with agency worker rights, including the CIPD. Earlier this month Mike Emmott, employee relations adviser from the Institute said in response to the proposed EU Directive on Agency Worker Rights: “In the UK this Directive is an answer to a non-problem. Temporary workers are not an under-privileged and disaffected group. Many of them have chosen temporary work because of their lifestyle”.
Further developments are expected in this area in the near future, so I’ll keep my eye out for any news.
Agency worker rights
February 4, 2008
The possibility of an EU Directive giving full employment rights to agency workers is in the news this week. Previously the government as well as many UK employers and professional bodies have been in opposition to this piece of legislation, due to its probable effects on the flexible labour market that the UK enjoys. The flexibility of the workforce in the UK has in the past contributed to the strength of the economy as it enables employers to be more reactive to market and competitive needs. However the Prime Minister’s aides last week met a number of MPs who are backing the directive, who believe that many agency workers in the UK are not treated fairly in their employment. Could this meeting indicate that the government is willing to back down on its opposition to the directive? We’ll have to wait and see. This issue is to be discussed again in Brussels this year, and may go to a vote, in which case the directive may be imposed on the UK.