Comments are closed. In the pastI had a lot of sympathy for the view that time-wasters at tribunals should bepenalised. Thesobering moment comes when the tribunal chairman utters the words, “I agreewith you that this application is frivolous/vexatious and would be prepared toconsider any application that you may wish to make for costs”.Theeuphoria is tempered by the thought that, even if an award is made, therespondent still has to collect it, probably via the county court system with ahard-up ex-employee offering to settle at £1 a week. Even if theindividual has obtained advice, you can be sure that the penalty will fall tothe individual and not to his or her advisers.John AdsettViae-mail Change of heart on ‘time wasters’On 12 Dec 2000 in Vexatious claims, Personnel Today For beer-drinkers just read ‘men’I wassurprised by the claim in Personnel Today’s competition “Is your firm the bestplace to work in IT?” It reads, “This is a good chance for employers with goodHR policies to send a positive message to current and prospective staff.”Good HRpolicies should endorse equal opportunities. The message you are sending outwith this competition is that you believe that most IT departments are full ofbeer-drinkers. Bydefinition, this usually implies the people in question are men. Certainly mostmen would be excited at receiving a prize of a fridge full of beer. My ownclose team, made up of men, would be excited but would feel embarrassed if theIT department won something that was not shared by us all (the joy of beingpart of a team).OxfordPsychologists Press is an excellent place to work in IT but we would notendorse what appears a subtle form of sexism.SharonNolanITmanagerOxfordPsychologists Press Previous Article Next Article Letter of the Week WH Smithoffers disabled hopeLike LloydsTSB (News, 28 November), WH Smith is also attracting disabled graduates, likemyself, on to a fast-track scheme. The WHSmith secondments are run by Scope for disabled graduates who have not beenable to secure employment by the normal means.Theprogramme has been running for six years and Scope has a partnership with about10 companies (increasing as the years go by), giving disabled graduates achance to gain employment experience and to help them find a job for thefuture.The schemeis a year-long contract under which graduates are given two six-monthplacements in two companies. So far the scheme has had a 100 per cent successrate with all graduates securing a job in one of their chosen placements.It alsoshows companies that disabled graduates have a lot to offer when given thischance – and this is exactly what WH Smith has given me. Being withWH Smith has given me an immense pleasure and experience that I might not havehad the chance to do, had WH Smith not decided to give disabled graduates achance by joining the fast-track scheme.KirstyLawsonGroupHRWH Smith Shortcomings of net recruitment Re: “Dotcomtakes on staff on the strength of virtual interviews” (News, 21 November). Thisyear Robert Half International has been focusing its strategy on theapplication of the Internet to enhance its recruitment processes.I havealways been wary of sole dependence of the Internet that some recruitmentconsultancies have turned to, as you simply cannot e-mail a handshake.TheInternet is a wonderful medium where employers can have access to manycandidates around the world and can process information to match capabilitiesquickly. But it does not provide the opportunity to measure the softerelements, such as level of formality, attitude and individual personality whichalso play an important role in whether the candidate would fit in with theirwork environment.Virgin’sattempt to examine these softer elements by web camera is an exciting conceptand could be a breakthrough method for recruitment consultancies to break downglobal barriers and recruit worldwide. We are alsolooking at ways to transfer skills across national borders and I will beinterested to learn in six months or so how successful Virgin’s web recruitmenthas been. SteveCarterUKmanaging directorRobertHalf International Tribunals keep open mindsAs a laymember of the employment tribunals I find the comments made by Thomas Kirby(News, 17 October) out of touch. He saidthat “panels prefer paper documents to witnesses” and “having read thepaperwork tend to all but have made their mind up before the start of unfairdismissal cases”.Lay membersdo not know the details of a new case they are sitting on until half an hourbefore they sit. Further, some of the bundles we have to deal with can be up totwo inches thick. To suggest that we have made up our minds before hearing allthe evidence belittles the service we provide.BrianDale JP Canterbury Enlightenment north of NirvanaKevinMcGrath is right to complain about the suitability of Harrogate as a venue forthe CIPD Conference (Letters, 14 November). On behalfof us all here in the North, we would like to apologise profusely for ourshabby hotels, traffic congestion, poor quality of staff, terrible overpricingand difficulty of access. We admit openly that all these problems are totallyunique to the North – and add that we never experience any of these discomfortsourselves when we travel to the Nirvana that is the South-East during thecourse of our work for the other 11 months of the year.My onlydisappointment was that McGrath omitted to mention the incessant rain. I canconfirm this is also unique to the North and that we will try much harder nextyear to direct the clouds over some less deserving people.Finally,applause is due for his wonderful suggestion that the police close off theroads to allow him to leave the area quicker: excellent idea – and proof thatthe HR profession could never be accused of self-importance. After all, whyshould the schoolchildren of Harrogate get home on time when there are HR VIPswaiting to go home? With allthis in mind I’d best not mention the warmth, good manners and hospitality Ifound among the good people of the spa town – nor how much I enjoyed the onlyevent on the whole of the HR calendar that ever requires people such as MrMcGrath to venture outside the M25.MikePrentonAgencydirectorJKLM(recruitment advertising ) Does sexuality really matter?I wasincensed at the attitude of investment bank JP Morgan towards diversity in theworkforce reported in the article “Private sector now ‘leads the way’ in staffdiversity” (News, 31 October).The bankclaimed that their decision to hold a recruitment event “specifically for gaysand lesbians” was “part of a drive to find good applicants, whatever theirsexuality”. If sexuality does not matter, why specify?Forgive meif I am being naive, but it has always been my perception that encouraging andwelcoming a diverse workforce is about inclusion, and not excluding anyparticular social group, whether that constitutes gay people, Asian or blackpeople or heterosexual people. I am in noway prejudiced against gay people, and I’m sure they themselves would rather berecruited into a position because they are good at their job, and not becausethey fulfil the requirements of some misguided organisation’s half-heartedattempt at diversity management. RachelFreemanHRadministratorBalfourBeatty Rail Renewals Related posts:No related photos.
Staff at the former Express web sites are taking legalaction against the former owners after it has emerged that they will notreceive redundancy pay. The five companies were sold by magazine publisher Northern& Shell to Seymour Pierce Investments for £1 in December. SP Investmentsthen placed the websites, which includes express.co.uk and sportlive.co.uk,into liquidation on the ninth of January. Andrew Hoskings, a liquidator at HLB Kidsons, confirmed thatformer website staff will not receive redundancy pay from its current owners. He said, “The companies who employ each of the staff have notangible assets that can be realised, the funding of arrears of pay and holidaypay together with payment in lieu of notice will be carried out by theDepartment of Employment.” The NUJ is supporting the legal action being brought by the46 former employees.An NUJ spokesman said, “The staff were expecting aredundancy payment equivalent to 20 weeks’ salary. This will not now happenunder the terms of the liquidator’s decision. Under the Department of Employment regulations, staff willnot receive redundancy payment unless they have been working for the companyfor at least two years. He explained that, “The majority of the staff were workingat the websites for less than two years. The NUJ has estimated that employeeshave lost between £1,000 and £60,000 each in notice and redundancy pay.”Seymour Pierce, the current owner of former Express websitesrefused to comment. Express employees are seeking proper redressOn 23 Jan 2001 in Personnel Today Previous Article Next Article Related posts:No related photos. Comments are closed.
Comments are closed. Previous Article Next Article Nine out of 10 large companies struggle to recruit e-business staff,according to a survey by HR consultancy William M Mercer. Project management, e-marketing and technical support roles are hard tofill, and there is a shortage of candidates with both technical andclient-handling skills. The survey, E-business Compensation Survey 2001, shows that two-thirds ofthe companies surveyed had increased their salary range to avoid recruitmentproblems. Furthermore, 87 per cent use contract staff and 62 per cent recruitfrom overseas, particularly from India and Europe. The median pay rate for a top e-business executive is £116,300, with e-salesmanagers on £63,000. Mark Edelstein, European partner at Mercer, said, “For staff withmarketing and management skills, we are now seeing e-business compete withtheir own parent companies. The problem is that those companies can offergreater job security and affordability.” The survey included 23 organisations, the majority of which weresubsidiaries of large companies operating in the financial services andhigh-tech sectors. Related posts:No related photos. Firms raise pay to draw e-business skillsOn 12 Jun 2001 in Personnel Today
Comments are closed. Carol Kavanagh joins ArgosCarol Kavanagh has started in her new position as HR director for retailerArgos, which has more than 470 stores nationwide. She was previously group HRdirector for the Storehouse Group where she spent 12 months focusing on the people-relatedissues connected to the sale of BhS and the setting up of Mothercare as aseparate plc. At Argos her day-to-day responsibilities will include training anddevelopment, employee relations and compensation and benefit issues.”Anything that connects to being a business partner to support Argos indelivering its people agenda,” she says. Kavanagh has a range of experience in the retail sector as well as a formalqualification. “I have an MA in strategic human resource management which has providedme with some good frameworks, theory and practical tools,” she explains. She hopes to develop further the HR service. “I want to build on thework that is already underway within Argos to deliver an HR service which iswanted and recognised by line managers as adding real value to the business’sdevelopment and success,” she said. Kavanagh is looking forward to working with the team at Argos. “I am enjoying learning and working in a different retail model from myprevious experiences. I am really looking forward to the opportunity to supporta business that is growing and ensuring that myself and my team help toleverage all of its people potential.” On the move Independent pub operator Punch Retail has appointed a new HR director. JoyceWoodrow will be responsible for driving the company’s recruitment, training andpersonnel programmes. A key part of her role will be to develop initiatives toattract and retain staff. She joins Punch Retail from Ladbrokes where she wasHR director. Scottish & Newcastle Retail has appointed its HR director to the board.Kim Parish joined Scottish & Newcastle Retail in 1991. She worked asmanagement development and training director and business development directorbefore her appointment as HR director in 1998. In her current role Parish isresponsible for HR strategy and implementation for S&N Retail’s 45,000employees across 2,300 pubs, restaurants and hotels. Investors in People UK has announced the appointment of Samantha Gemmell,Geoff Hall, and Sue Thomas to its board. Gemmell is a member of the CBI’s SMECouncil and also sits on the Small Business Council. Hall is currently directorof learning programmes at LSC and is the Learning and Skills Council’srepresentative on the board. Related posts:No related photos. Previous Article Next Article PeopleOn 26 Jun 2001 in Personnel Today
Centrex, the Central Police Training and Development Authority, will beusing a new e-learning programme developed by Video Arts to help more than aquarter of a million police personnel deal with community and race relations(CRR). Working on Race and Diversity was developed to help police services meetthe national occupational standards in community and race relations, which wereset as a result of the Macpherson recommendations after the Stephen Lawrenceenquiry. “By choosing e-learning as the format for the CRR training package, weare able to introduce flexibility into the police training process,” saysDr Phil Clements, CRR multimedia project manager for Centrex. “Personnel will be able to access information at their own convenience,allowing them to overcome obstacles such as shift work or location constraints.This will no doubt extend the reach of the programmes and, ultimately, help thepolice service to meet the standards set in 2001.” The programme is CD-Rom-based and can be accessed from police networks, theintranet or directly from a PC. Video Arts worked with Centrex and localcommunities to produce material that can be used by a diverse audience. “The programme’s flexible learning structure can be adapted to meetdistinct training needs faced by all police services, while ensuringconsistency across the UK,” said Jeet Khaira, CEO of Video Arts. “Theuser-friendly magazine format also makes the training accessible to allpersonnel, covering the range of IT abilities present within the policecommunity. www.videoarts.com Policing standards in race relationsOn 1 Nov 2002 in Personnel Today Related posts:No related photos. Previous Article Next Article Comments are closed.
Previous Article Next Article The poisoned chaliceOn 1 Feb 2003 in Personnel Today If an employee is found to be drunk at work or under the influence of drugs,OH may be called on to advise the right course of action, whether disciplinaryor rehabilitation, by Joan Lewis and Linda Goldman In the aftermath of the festive season, many businesses face the employmentequivalent of morning-after blues. Historically, alcohol policies and equalopportunities take a battering during the closure of each successive year as amore liberal interpretation of the former generally encourages breaches of thelatter. The 21st century employer now also has to cope with and try to prevent thepsychological effects of the onslaught of e-mail excesses, which currently forma virtual epidemic. For this reason, health and safety aspects should beconsidered in relation to all the manifestations of jollity that could causeoffence and injury of varying degrees to mind and body. The demon drink All OH professionals will, at some time in their career, be involved inconsidering the effectiveness of company policies on alcohol abuse. Alcohol isa particular problem because it is so closely linked with social festivity. Itseffects may be implicated in some forms of unlawful behaviour but as a drug, itis perfectly legal. Its endemic use in the UK means that employers are, orshould be, constantly reviewing alcohol policies to ensure abuse is discouragedand adverse effects of even moderate use are not carried into the workplace. The ancient chestnut in employment law is whether a person who uses excessalcohol is ill or evil. In other words, is alcohol use or abuse to be thesubject of medical or disciplinary procedures? Most policies will have a tiered approach to alcohol use. If drinking ispermitted at all in working hours, the policy will define whether excess use isto be misconduct or gross misconduct. The sanction will depend on the severityof the offence. Misconduct may lead to disciplinary proceedings with a varietyof outcomes, ranging from counselling, warnings or dismissal. Gross misconductgenerally merits summary dismissal. However, there are cases where evidence of persistent use of alcohol mayencourage the OH adviser to consider whether the individual should be treatedas if they were ill. Most employers realise that a policy on drug abuse is a key requirementtoday. Excepting that the use of illegal drugs is an offence in law itself, thepolicy will otherwise mirror many aspects of the alcohol policy. What shall we do with the drunken employee? Save for any aspect of involvement with transport where prohibition ofalcohol at work may be almost mandatory, when considering how to deal with theproblem drinker, the employer needs to be aware that the issues raised are broadones of health and safety for the entire workforce. The Health and Safety at Work Act 1974 requires employers to ensure so faras is reasonably practicable, the health, safety and welfare at work of theiremployees. This is reflected in the common law duty of care that employers havetowards all their employees. The needs of the problem drinker must be setagainst the needs of his fellow workers who are entitled to a safe place ofwork, and who could be put at risk by the behaviour of someone whose abilityand judgement are affected by drink. The duty of care to the workforce is particularly high at times where drinkis sanctioned, such as at the office party. The party season is now well andtruly over, but employment tribunals will shortly begin to see the effects ofhastily convened disciplinary hearings dealing with recent forays into theworld of alcoholic generosity. It is a curious fact that while dependency on alcohol is deemed to be an illness,it is not, however, deemed a disability, since the Disability DiscriminationAct 1995 specifically excludes alcoholism. Indeed, the DisabilityDiscrimination (Meaning of Disability) Regulations 1996 state specifically thataddiction to or dependency on alcohol will not amount to an impairment underthe Act. However, paragraph 11 of the Guidance to the Act points out that it isnot necessary for a tribunal to consider how an impairment is caused. Aninteresting effect of this approach is that liver damage resulting fromalcoholism may amount to a disability. The way to deal with alcohol-related misdemeanours may be as a capabilityissue if it appears that there is a dependency factor. The so-called one-offincident of bad behaviour may be a conduct issue, some of which may well bemitigated if bad behaviour was caused by excessive consumption of the boss’slargesse at the office party. OH may be called in to advise on the appropriate way forward.Confidentiality should not be an issue, since the adviser need only give theopinion as to whether conduct or capability proceedings should be used,although if the latter, it would be helpful to follow a designated procedure toencourage participation in an alcohol rehabilitation programme. If the employee needs help, they may be prepared to waive confidentiality sothat they can be helped rather than disciplined. An employee who fails tocomply with a drink rehabilitation programme may find themselves dismissed foran alcohol-related misdemeanour or absence, simply because they have failed tocomply with the programme. The right to drink An employer may need to know if a person is under the influence of alcohol.However, since the Human Rights Act 1998 came into force, employers may not userandom alcohol (or drug) testing without taking into account the possiblerestraint this may place on the employee’s right to privacy under Article 8 ofthe European Convention on Human Rights. The rule of thumb is that employersshould ensure the right to carry out alcohol or drug testing is contained inthe contract of employment and is only implemented in the work context toensure safety and to protect the employer’s reputation. An employee who refuses to submit to a contractual alcohol test will need toshow that the request for the test was in some way arbitrary or oppressive ifhe was dismissed as a result of the refusal. More ways than one to pose a risk There is anecdotal evidence that many employees with access to a computerare spending more than an hour a day dealing with social and personal e-mail. While it is arguable that there is a corresponding reduction in time onpersonal telephone calls and chatting with fellow employees, it is increasinglyclear that misuse of the internet may be just as addictive in some cases asalcohol or drugs. The internet seems to have the same disinhibiting effect as alcohol, in thatmany of the messages or images relayed around the office or directed to aspecific person are more offensive than might have been inferred from thegeneral behaviour of the sender. The compounding disinhibition of alcohol may be the underlying cause for theincrease in complaints of harassment by e-mail, particularly in the run-up tothe festive season. Employers need to be certain that policies on misuse of the internet areclearly stated, implemented and applied consistently. Misuse of the internetshould be seen as a disciplinary issue, both in terms of the amount of personaluse, if any, which is permitted during working hours, as well as the content ofmaterial which is promulgated, downloaded or disseminated. Employers should have policies that define the way in which personal use ofthe internet is permitted, with reference to time involved and the nature ofuse. Sanctions for misuse must be stated clearly in the disciplinary procedureand applied evenly, and provisions for supervision should be described indetail. The OH team will be alert to the debilitating effects on any recipientsbombarded with offensive e-mail and may be called upon to advise on theaggravating effects of a drink or two on what may turn out to be distinctlyunfunny when viewed in the cold light of sobriety.Conclusion An alcohol, drug abuse or e-mail policy, like a puppy, isn’t just forChristmas. It needs supervision, regular updating, review and even-handed use.It can be a good friend with some proper training to avoid accidents or evendisasters during the course of the whole of the year. Linda Goldman, BDS,LLB & Joan Lewis MCIPD, MA (Law & EmploymentRelations) Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is headof training and education for ACT Associates & Virtual Personnel. JoanLewis is the senior consultant and director of Advisory, Consulting &Training Associates and Virtual Personnel, employment law and advisory serviceconsultancies and licensed by the General Council of the Bar in employmentmatters under BarDirect. Case roundupStrathclyde Regional Council vSyme, EAT 223/29 (IDS Handbook, Unfair Dismissal, 133)Syme was a school caretaker, dismissed summarily for beingdrunk at work. Had the employer taken medical advice, it would have learnedthat the drinking was symptomatic of manic depression. The dismissal wastherefore deemed to be unfair.This case is an example of the court finding that misconductcaused by alcoholism should be treated as a medical issue, rather thandisciplinary. It is unlikely that, in the present political climate, a schoolcaretaker would survive an incident of drunkenness although correct procedureswould need to be followed to ensure that, if dismissal was the appropriatesanction, all proper steps were taken prior to dismissal in the form of properinvestigation.Morris v South West Surrey HealthAuthority, ET 8390/88 (IDS Handbook, Unfair Dismissal, 134)Morris was dismissed for persistent short-term sicknessabsence. He appealed his dismissal and put forward the underlying explanationfor his series of absences as the fact of his alcoholism.The tribunal’s approach was that the employee had made aconscious decision to drink. He had therefore decided he would not be soberenough to attend work. “If he is so inebriated that he is unable to attendwork, he must suffer the consequences.”Angus Council v Edgley, EAT289/99, IDS Brief 722, 14Edgley was not given the benefit of the Council’s policy onalcohol abuse whereby employees with drinking problems would be assisted inseeking professional help and rehabilitation. He was dismissed for taking timeoff work to go drinking. The dismissal was unfair since the employer dealt witha medical issue (capability) as if it were disciplinary (conduct). It was notappropriate to deal with this as a ‘one-off’ disciplinary matter when theemployer knew from his disciplinary history that he was alcohol dependent.Morse v Future Reality Limited,54571/95, ELABriefing 8/10, 2002, 167Male employees downloaded and distributed pornographic materialfrom the internet to one another and sent some of the items to Morse. Shesucceeded in her claim of sex discrimination by way of harassment. The factthat the male colleagues thought the material was amusing was irrelevant.A person suffers sexual harassment by experiencing matterswhich are personally offensive. The employer was unaware of the extent of theproblem until Morse raised her complaint. It is not known from the case reportwhat sanction was applied to the other employees, but it would have beenreasonable for the employer to consider whether dismissal or a final warningwas appropriate to each offender.O’Flynn v Airlinks the AirportCoach Co Ltd, EAT 0269/01, IDS Brief 715O’Flynn was a weekend drug-taker employed by AACC Ltd as acustomer care assistant. AACC Ltd’s business is in the transport sector andalthough O’Flynn was not a driver, her job description made it clear that shecould be required to assist drivers manoeuvring their vehicles and to serve hotdrinks on moving coaches. The company had a zero tolerance policy on alcohol and drugabuse and had introduced random screening of employees as part of the policy.The policy made it clear that a positive drugs test would lead to disciplinaryaction. The policies and procedures were well communicated and incorporatedinto contractual obligations. O’Flynn was fairly dismissed when she tested positive in arandom test. Moreover, the right to private life as set out in the Human RightsAct was not breached by the company’s random testing policy. Comments are closed. Related posts:No related photos.
Flexibility under fireOn 1 May 2003 in Personnel Today Temporary workers have always been a popular choice for UK businesses. But thatflexibility is under threat as never before – not just from Europe but from ourown courts too. Kevin Barrow reportsBritish business continues to rely heavily on agency and contract workers.The benefits to employers are numerous. The resource can, in theory, be turnedon and off at will, without the need for redundancy procedures or the risk ofemployment claims. Hard-pressed HR departments and line managers do not have toworry about administering or funding National Insurance Contributions, workingtime rights, flexible working rights, pensions and other benefits. Increasedcompetition, wider use of technology and the current relative lack ofregulation mean employment agencies are providing an increasinglycost-efficient service to end users. The flexibility of this business model is said to give the UK a competitiveadvantage over the rest of Europe, and is one way for UK companies to try tomatch the flexibility and lower cost bases of offshore suppliers. However, it now faces unprecedented legislative and judicial challenges. – The proposed Temporary (Agency) Workers Directive seeks to give temps andperhaps contractors the right to terms and conditions (including fringebenefits) equivalent to those enjoyed by permanent employees – The proposed Conduct of Employment Agencies and Employment BusinessRegulations (the ‘conduct regulations’) impose procedural requirements on therecruitment sector, pushing up overheads for staffing companies and at the sametime, limit the scope for staffing companies to charge end users ‘temp to perm’and ‘temp to temp’ fees – There has been a series of apparently contradictory cases about theemployment status of contractors and temps – the most recent confirmed thateven where there is no formal written contract of employment between an enduser and temp, it is possible that a contract may be implied in somecircumstances. The Temporary (Agency) Workers Directive This controversial directive seeks to protect the rights of temporary agencyworkers and standardise regulation of the staffing industry across the EU. Afinal draft may be agreed at the European Council in June. The directive may give temporary agency workers the right to contractualterms and conditions (including pay, fringe benefits, access to training or theopportunity to apply for permanent jobs) equivalent to those of permanentemployees. The most recently tabled proposal suggests such entitlements shouldapply after six weeks of employment. There has been considerable wrangling over this issue. The UK government haslong argued for the entitlements to apply after a period much longer than sixweeks (for example six to 12 months), and it has been reported that Denmark,the Republic of Ireland and Germany support an extended period. A finaldecision on this is likely to be reached in June. In practice, it will probably be a considerable time before the directive isimplemented in the UK. Even if political agreement can be reached at EU levelin June, there will inevitably be an extended ‘grace period’ before the UK isrequired to implement the directive in all respects. The difficulty of drafting regulations that implement the agency workersdirective effectively may also mean delay. Bringing contractors under the ambitof the directive will prove tricky as outsourcing, consultancy and secondmentscould unintentionally be included within its scope. The DTI will have toexclude workers provided through such intermediaries. The Conduct Regulations The first draft of these regulations was put forward by the DTI in 1999.Various redrafts have since been circulated, and it now seems unlikely theywill be finalised until some time after the European Council finalises thetemps’ directive. The DTI seems to be rightly concerned about inconsistenciesbetween the European proposals and the Conduct Regulations. As with the directive, it is unclear whether the Conduct Regulations willeffectively cover workers provided by personal service companies. It seemsunlikely the DTI will be able quickly or effectively to draft the regulationsin such a way. Other legislation affecting temps and contractors The application of discrimination legislation, the Working Time Regulations,minimum wage legislation and other recent statute to temps and contractors isnot always a straightforward issue. While temps and contractors usually haverights under the relevant pieces of legislation (such workers’ rights do notusually depend on the existence of a contract of employment), it is not alwaysstraightforward to establish who owes the rights. For example: – for contractors, it is arguable that working time and paid annual leaverights are owed by the contractor’s personal service company, rather than thestaffing company or end-user – It has only recently been clarified in relation to temps that employmentbusinesses must comply carefully with the paid holiday provisions in theWorking Time Regulations, and that they cannot roll up holiday pay into salary(MPB Structure Ltd v Munro (CA) April 2003 – see page 11) – Discrimination liability can lie with either the end user or staffingcompany. This is not always easy to establish. Where a staffing company seeksto fulfil a requirement for an end user, and an act of discrimination (such asthe unwitting application of indirectly discriminatory criteria) is committedby the staffing company on behalf of the end user in the recruitment process,how will a tribunal decide whether the discriminatory act was by the end useror the staffing company – or both? Case law – can temps have employment rights? While the temporary workers directive and the Conduct Regulations have beendrifting along, employment tribunals have decided on a number of cases relatingto the duties of end users and staffing companies to temps and contractors. By mid-2002, the law seemed to be as follows: – Under Section 230 of the Employment Rights Act 1996, an employee isdefined as an individual who has entered into, or works under, or worked undera contract of service. They are entitled to general employment rights subjectto satisfying various qualifying criteria and employment tests – The EAT decisions in Hewlett Packard v O’Murphy, 2002, IRLR 4 and Esso vJarvis, 2002, WL 347188 seemed to establish that contractors do not have generalemployment rights against end users. Emphasis was placed on the absence of any‘technical contract’ between the end user and worker, and if there is nocontract, there can be no employment rights – The Court of Appeal decision in Montgomery v Johnson Underwood Ltd, 2001,IRLR 269 likewise stated that a temp had no general employment rights againstan end user – The House of Lords decision in Carmichael v National Power plc, 1999, 1WLR 2042 emphasised that without mutuality of obligation, there was no contractof employment, and that all of the circumstances of the relationship (and notjust the documents) should be looked at to determine whether such mutualityexisted. In this case, the workers (tour guides) were found not to be employeeson the facts. Recent cases have further clarified the rights of contractors and temps. Can a temp have employment rights against the staffing company? The judgment in Dacas v (1) Brook Street and (2) Wandsworth Borough Council(EAT) 2002 WL 31947451 last December confirmed that while Dacas, a temp, mightnot have general employment rights she could exercise against the end-user (seeMontgomery), she might have such rights against the staffing company, with whomshe did have a contract. The EAT decided, among other things, that staffing companies may havesufficient control over workers to be considered their employers. Although inthis case day-to-day control was exercised by the end-user, it was exercisedbecause of a right in the staffing company’s contract with the worker, whichthe end-user exercised as an agent for the staffing company. Is a contract necessary for a temp to establish employment rights againstthe end-user? The well-known case of Motorola v Davidson caused an outcry by holding thatan employment relationship existed between the end-user and a worker who hadbeen employed under a contract for services through an employment agency,despite the fact that there was no contract between them (the worker was beingsupplied via an intermediary staffing company). The decision seemed to exposeend-users to employment claims from temps, and possibly also from contractorsworking through personal service companies. In Stephenson v Delphi Diesel Systems Ltd (EAT), 2002, WL 31962063 however,the position was clarified and the Motorola decision was marginalised. The tempwas deemed not to be an employee because he had not entered into, or intendedto enter into, any direct contractual relationship with the end-user. It seemsthat a direct contractual nexus is now required to establish employee status. The position seemed, therefore, to be that where the contractual linkbetween a company and worker was broken by an agency or a personal limitedcompany, there was no contract of employment, and therefore no possibility of aclaim of employment rights – whether or not control or other employmentindicators are present. Can an employment contract between temp and end-user be implied? At first sight, the recent case of Franks v (1) Reuters Ltd (2) First ResortEmployment Ltd (Court of Appeal) seems again to expose end-users to employmentclaims from temps, and possibly also from contractors working through personalservice companies. Franks worked for several years at Reuters as a temp viaFirst Resort, providing driving and helpdesk services. His appointment was terminated and he claimed unfair dismissal, redundancypay and breach of contract against the end user (Reuters). The tribunal and EATboth held that because Franks had no contract with Reuters (there being noformal contractual link between them, with Franks being paid by, and having awritten contract with, First Resort), Reuters owed Franks no employment rights.The Court of Appeal handed down its judgment last month and unanimously heldthat the tribunal and EAT should have looked more carefully at whether, on aconsideration of all the relevant evidence (including what was said and done,as well as any relevant documents), there was an implied contract of servicebetween Franks and Reuters. If there was not, Franks was not an employee ofReuters. If there was, it was necessary to consider the merits of hisemployment rights claims. The court also said it might be relevant to look at length of service as afactor pointing towards the existence of an implied contract. It might berelevant in the context of someone who sought a temporary placement through anemployment business, but was then allowed to stay working in the same place forthe same end-user for over five years, during which period he was redeployed.Franks seems effectively to have been treated as a member of the end-user’sworkforce for the purposes of resourcing tasks. Therefore, dealings between parties over a period of years, as distinct fromthe weeks or months typical of temporary or casual work, are capable ofgenerating an implied contractual relationship. In cases where temps have been held to have general employment rightsagainst end-users it is interesting that the workers seem to have been treatedunfairly and had for various technical and practical reasons no right ofredress against their staffing companies. This could indicate a judicialtendency to find for a worker (especially where they are not relatively highlypaid) a right of redress somewhere – this has certainly been a feature inhealth and safety claims in the construction sector. Kevin Barrow is a partner at Tarlo Lyons Guide to terms usedTerminology can be confusing in thissector. This article categorises workers as follows:– ‘Contractor’ is used to describe someone who providesservices via a personal services company (often in the form of an ‘umbrella’company through which more than one contractor operates), which then usuallycontracts with a staffing company, which in turn contracts with the end-user– An ‘agency worker’ or ‘temp’ is used to describe someone whoprovides services via an “employment business” which then contractswith the end-user. Usually the employment business pays the temp net of PAYEand NICs.How to minimise the risk of claims– Worry about The Temporary (Agency)Workers Directive if and when it happens, and note that use of contractors maybe unaffected– Always engage temps and contractors via a reputable staffingcompany with sound finances and membership of a trade association like ATSCo orREC: they are less likely to go bust leaving temps looking for someone else tosue – Ask the staffing company what steps it will take to helpminimise the risk of claims: will it help police your recruitment practices toensure no acts of discrimination? What types of risk will it indemnify youagainst? Bear in mind staffing companies cannot easily insure against all risksand so passing all risk to them may not be practicable– Channel all dealings with contractors through the staffingcompany – do not move temps and contractors from job to job within yourorganisation, do not allow them access to general employee benefits or, forexample, fill in their mortgage application forms– Consider appointing one of the several services and staffingcompanies supplying “managed services” in this sector. This canreduce risks and save money.Find out more…on the Temporary (Agency) Workers Directive atwww.dti.gov.uk/er/agency/directive.htm www.dti.gov.uk/europa.eu.int/comm./employment_social/soc-dial/labour/com_2002_701_en.pdfon the Conduct Regulations atwww.dti.gov.uk/er/agency/newregs.htm Previous Article Next Article Comments are closed. Related posts:No related photos.
HRconsultant Paul Kearns has accused the Accounting for People Task Force oftrying to measure the impact of people on performance using accountingtechniques.Kearnsis concerned that the methods the taskforce is suggesting to measure humancapital management (HCM) will not work.”Theproblem is that they [the taskforce members] are barking up the wrong tree.They are trying to use accounting principles to measure things that weren’t meantto be measured using those principles.”Thetaskforce’s consultation document does acknowledge that there are realdifferences in opinion over the best way to measure HCM.Itstates: “Some writers place greater weight on factors such as fairtreatment, job security, scope for employee development, and design of jobs topromote autonomy and challenge. Others stress the role of worker flexibility,performance management and the use of incentive payments.”Butit identifies an emerging consensus between leading researchers that there is”compelling evidence for linkage between strong people management andperformance”.HoweverKearns, director at consultancy PWL, is worried the taskforce is usingtechniques that are out of step with the profession.MostHR professionals, he said, aren’t using HCM and are not up to speed with thelanguage and practices.”Thetaskforce is a bit ahead of itself. HR people are doing HR, not HCM,” hesaid.Hesaid he is concerned that the measures are too simplistic and the taskforce’smethodology is questionable. Related posts:No related photos. Accounting principles simply won’t work for human capitalOn 20 May 2003 in Personnel Today Previous Article Next Article Comments are closed.
Previous Article Next Article Comments are closed. Related posts:No related photos. Managed public house and restaurant business Scottish & Newcastle Retailhas launched an initiative across its 1,450 outlets to encourage new staff toprovide inspiring service by motivating them through training and development. Aimed at newcomers, the ‘Inspiring You’ initiative is part of the company’s£1m ‘Inspiring Service’ customer care programme launched in June 2002. “In an industry where staff work very varied hours and shifts and havedifferent individual needs , a solution is required that not only meets duediligence needs, but at the same time motivates and inspires theindividual,” said company HR director Kim Parish. “We are committed to providing customers with inspiring service, but todo that our employees need to feel inspired themselves. The only way to do thisis to make them feel a valued member of the team from day one,” she said.”By showing them the opportunities available they are more likely to stayand develop into exceptional company ambassadors and build a successful career.”The Inspiring You pack provides each new starter with a personalisedinduction framework, including a training and development passport andpersonally addressed welcome gift card. It is intended for use in a range ofpositions from bar staff to receptionists in a range of pubs and restaurantsacross the estate and includes holiday relief workers. Scottish & Newcastle aims to inspire top performanceOn 1 Sep 2003 in Personnel Today
Comments are closed. This week’s lettersMad rush to export call centre jobs shows little faith in UK plcWe could all benefit from a little balance on the job exodus from callcentres. As so many of our local call centres in Glasgow and the West of Scotland arestaffed by people who have already lost a job in the traditional industries,you can begin to appreciate their fears. What do they retrain for next if weare planning on exporting their jobs? The wages paid to call centre staff in the UK are obviously higher thanthose on the sub-continent, but then people here tend to have a betterunderstanding of client priorities, and are comfortable selling extra servicesto clients that could easily generate the additional revenue that UK financedirectors require. If they really used native UK skills, companies would achieve more, andwould (hopefully) gain positive PR by demonstrating their commitment to the UKmarket. I am confident that the Indian market will have more than its share ofchallenges in the future, as all the PLC’s moving their call centres out thereto make savings promptly pay them back out again in costs for newinfrastructures, share options, ludicrous salaries, and bonuses for the fatcats already at the top of the tree. I truly believe the companies that demonstrate they will provide a decentservice at a fair price, recognise their staff and avoid paying excessivesalaries to an elite group, will gain an enhanced market reputation that willsustain growth for years to come. Alan Cunningham Skills adviser, Gorbals Initiative Offshoring no quick fix for UK business In Personnel Today, 25 November, you reported on the growing threat ofmiddle management jobs, including certain HR roles, being relocated to foreigncountries. This practice, sometimes referred to as ‘offshoring’, has quickly gainedcurrency in the US as a solution to remaining competitive, and also appeasingdemanding shareholders. The UK it would seem, has followed suit. Lloyds TSBrecently announced it was following the trend set by other banks, by offshoringa number of middle management jobs to the sub-continent. HR should be worried about this new phenomenon. The drive to cut costs isnot always guided by consideration of the people factor, but HR must bethankful that human capital management (HCM) is now a vogue issue. With the Accounting for People Report on HCM pushing the HR professionskywards, now is the time for its practitioners to prove their real value tocompanies. Labelled in some quarters as purely transactional, and hence ‘offshoreable’,the Kingsmill report provides the UK HR profession with the necessaryammunition to prove that its future does not lie in Bangalore or Bangkok, butat the heart of British business. Sally Davis Director, PennaHR is toeing the line not selling its soul Stephen Overell writes a thought-provoking article in his last Off Messageof 2003 (9 December), questioning whether HR is dancing to the devil’s tune. Ofcourse, we will never know whether the world would be a better place without somany rules and regulations for society and employers to embrace and enforce. But it certainly feels as if we are becoming increasingly shrink-wrapped inlegislation, and that our businesses are suffocating. Meanwhile, HR continues to become an increasingly tough discipline tofunction in. I support the coaching of line managers and encouraging them tohave direct conversations with their people, rather than calling in HR to givegood or bad – usually bad – news. Yet many still view HR as an untrustedfunction – as the ‘hirers and firers’. HR has to have a foot firmly in both the employer and employee camp. That islike walking along a six-foot high wall that is only three inches wide. HR isn’t ‘selling out’, as Overell puts it. Practitioners are simply havingto walk that high and narrow wall – negotiating some large spikes lining thetop – and do their utmost not to fall off it. Clive Lewis Group HR and IT director, NXT plc Employer branding is here to stay Employer branding is reaching a ‘tipping point’. Two years ago, the numberof references for ’employer branding’ on the Google internet search engine wasaround 250. Now there are now 2,500. A recent Economist study revealedsignificant levels of awareness, not just in the UK, but worldwide. Many major companies have embarked on significant employer brandingprogrammes. This is more than a passing fad. Leading companies are fastrealising that valued employees, like profitable customers, are free to makechoices. The central tenets of branding and brand management (close attentionto the needs and aspirations of target audiences, clarity of focus, anddelivery of coherent and consistent brand experiences) have long proven theircommercial value, and are as relevant to the brand you work for as any brandyou might buy. Given its additional value in helping to forge a closer relationship betweenHR and marketing, I believe employer branding is almost certainly here to stay.Richard Mosley Managing director, People in Business Heroic attempt to cast out arrivistes Stephen Overell is my hero! He has articulated exactly what I have beenthinking for years (Off Message, 9 December). Obviously, he is a man ofsignificant intellectual acuity. His views are spot on. There are far too many ‘arrivistes’ in the HRprofession, many of whom get profiled in Personnel Today. They often seem likebrutal self publicists, promoting their career agendas at the expense ofharried employees. OK, there are some skivers out there who play the system.But there are far many more who are overworked and desperate – and HR peopleoften couldn’t care less about them. Please print more about the ‘ordinary’ HR heroes who are trying to balance theneeds of business and employees. And if Overell fancies employing an assistant,I’ll be first in the queue! Mary Louise Brown Lecturer, Department of HR management Aberdeen Business School Rewarding staff leads to retention I have just had the results of a survey carried out by Argos BusinessSolutions into employee benefits. We have found that although a large number (90 per cent) of HR professionalsfeel that rewarding staff is important to the overall operation of theirbusiness, more than half of those questioned believe the boards of theirrespective companies do not view staff motivation as a priority, and should beregarded with greater importance. In my experience, rewarding staff greatly improves business efficiency andthe ethos of a company. Rewarding employees appropriately for theircontribution and motivating them to perform at their best is an essentialcontributor to company success, and should be viewed as such by the board,rather than as a non-strategic indulgence. It is often the difficult job of HR professionals, who implicitly know thevalue of making employees feel valued, to communicate this message to theboard. However, measuring motivation is not easy, and identifying return oninvestment can be hard for those not well-versed in seeing value in the‘softer’ elements of an organisation. Yet saying ‘thank you’ to your employees is not only easy and apt to do, butcan really make a difference to the way staff look back on their year. Chris Hartley General manager, rewards, Argos Business Solutions Communication key to tackling stress I am bemused by the debate about whether stress exists or not. For many at work, stress is a reality because of the way we treat eachother. When managers – and colleagues, for that matter – fail to support eachother, a culture of mistrust and poor communication results. One of Stephen Covey’s seven habits (from his book Seven Habits of HighlyEffective People) is ‘Seek first to understand, then to be understood’. Oftenthe lack of understanding of others and of their needs causes the breakdown andmistrust in the first place. So a good start in nipping stress in the bud wouldbe listening to the other person, asking them for their opinion and seeingthings from their point of view, before launching in or criticising theiractions. Many of our clients suffer because their managers don’t understand how tomanage people. Their people are not motivated and don’t perform, which meanspeople panic and behave in ways they would be horrified about if they stoppedto think about it. Stress is often the result – not just for the staff, butalso for the managers. One of our clients has found that making work a fun place to be not onlyalleviates the problems of stress, but produces dramatic improvements incommitment and performance. This all started with the way they developedpeople, and how they trained managers and staff. Get the support right, stress levels fall and performance goes up. Soundsgood to me. Bill Esterson Director, Leaps & Bounds Prescott needs to share his fortunes I am concerned to find that there is blatant discrimination in thesecond-highest office in the land. It would appear that while the deputy Prime Minister John Prescott has theuse of two Jaguars, his permanent secretary only gets the use of a coach andeven has to share that with the ODPM board. Surely he should know better! I think Personnel Today’s Guru should bringthis matter to the attention of the PM at the earliest opportunity. Mary Hough Personnel administrator, J P Kenny LettersOn 6 Jan 2004 in Personnel Today Previous Article Next Article Related posts:No related photos.