PBS HR Newsletter – July 2018

Managing staff during the World Cup

With the World Cup well underway, many employees will be wanting to catch as much of the tournament as possible.  However, it can provide some awkward moments for employers, line-managers and HR managers, with staff wanting more time off, asking to watch matches at work, or even pulling ‘sickies’ to catch the action.  ACAS has issued some helpful guidance on how to deal with issues that may arise.

Whilst employers are under no obligation to give employees time off work to watch matches (unless holidays are pre-booked, of course), showing some flexibility in the work place could improve morale and overall productiveness, generally.  However, employers should also ensure that all employees are aware of all relevant policies and procedures and of expected standards of behavior over this period.

Employers should ensure that their normal processes for booking and authorising holidays are followed.  If a significant number of staff have requested the same time off, there may need to be a ‘first come first served’ approach. The key is to be fair and consistent and for both parties to try and come to an agreement.  In some businesses this might not be possible but, in office and non-time sensitive businesses, employers may also consider changing shift patterns, or office finishing times to allow staff the chance to watch matches. It is important to consider the impact that any such measures will have on the business and to balance this against the gains that may come from having a motivated and engaged workforce.

Another way of encouraging staff to come into work during the World Cup is to have a TV showing the games. It is important to remember, though, that not everyone is a football fan, so employers need to ensure that they are not giving one group of workers ‘special treatment’ over others. This could lead to requests to show other big sporting events such as Wimbledon, or Cup Finals at work too. Employers can avoid this by making it clear that this is a special occasion, as it only happens every four years, and as such, is not a regular sporting event.  Also, some staff may support teams other than England, so, whatever arrangements are put in place may need to be replicated across all the games to minimise the risk of discrimination claims, or disenchanted employees.

If an employer suspects that a member of staff is ‘pulling sickies’ to watch matches, they must still follow their normal absence management procedures to ensure that they do not leave themselves liable to potential costly employment tribunal cases further down the line.  Organisations should have clear procedures for reporting absences, as well as processes for monitoring and acting on frequent short-term sickness.  Levels of attendance should be monitored during this period in accordance with the absence management policy, with any unauthorised absence or patterns in absence potentially resulting in formal proceedings. This could include the monitoring of high levels of sickness, late attendance or lower levels of performance at work.

Fans may well also indulge in a few drinks whilst watching the matches. If this means they are turning up to work still under the influence, or hungover, then their employer may have to take disciplinary action. The World Cup cannot be used as an excuse to justify turning up to work in an unfit state, and organisations should have policies in place which clearly set out what is acceptable in the workplace concerning alcohol and should  remind their staff of their obligations in this regard.  There is also likely to be an increase in staff using social networking sites, sports news websites or official sporting events pages on the internet.  It may, therefore, also be worthwhile reminding them of any policies regarding the use of social networking and websites during working hours. These policies should be clear on what the organisation considers is and isn’t acceptable web use.

CEO apologises for comments that his ‘challenging position’ could not be managed by a woman

Speaking at the International Air Transport Association (IATA) annual meeting in Sydney, Akbar Al Baker, the CEO of Qatar Airways, made these comments in response to journalist questions on the lack of diversity within the global aviation industry. Currently, only 3% of chief executives within the industry are women.

Al Baker has since retracted his statement, saying that the airline has always been a, ‘pioneer’ in providing gender equality by training and employing the first female engineers and pilots. However, his response comes weeks after government and Equality and Human Rights Commission figures show that FTSE 350 boardrooms in the UK are dominated by men and that within eight out of ten UK firms male employees receive a higher yearly income on average than their female colleagues.  Overall, women are being paid a median hourly rate that is, on average, 9.7% less than men. Organisations are therefore being encouraged to take steps to help female workers to progress to senior, managerial positions.

Reports published by McKinsey & Company over the last few years suggests that a boardroom driven by both male and female viewpoints boosts an organisation’s bottom line, leading to higher levels of productivity and helping stronger revenue growth. They also go on to state that bridging the gender pay gap within the UK could increase GDP by £150bn in 2025.  Some organisations are beginning to look more closely at the reasons behind the low number of managerial positions held by women in their business and sector and to explore ways of counteracting this. In February 2018, large city businesses, including Goldman Sachs, NFU Mutual and JP Morgan, signed up to a government backed charter aimed at supporting the progression of women into senior roles, whilst PWC has recently banned all-male shortlists for jobs within its operation. Organisations are, therefore, being strongly encouraged to review workplace policies, so as to ensure that the working environment is fair and inclusive.

New government scheme to allow EU citizens to remain in the UK after Brexit by answering three “simple” questions

The government have recently announced provisions, expected to be rolled out next year, which would enable workers from the European Union to remain in the UK after Brexit. EU nationals who have lived in the UK for five years prior to 31 December 2020 will be able to apply for “settled status” and any individual who arrives in the UK prior to this date will be eligible for “pre-settled status” until they reach the five-year point, when their status can be changed to “settled status” at no extra cost.

Labelled “as simple as people can reasonably expect” by Home Secretary Sajid Javid, individuals will be able to apply online and via a smartphone app, or make use of computers within local libraries and special contact centres. Currently, it is expected that the scheme will cost £65 for adult applicants and £32.50 for children, with an estimated turn-around time of two-weeks. During the application process, workers will need to provide the following information:

  • A form of identification, including the upload of a personal photograph or “selfie”
  • Confirmation of their current living arrangements within the UK
  • Disclosure of any previous criminal convictions

This will come as welcome news to organisations who employ high numbers of workers from the EU who may have been concerned at the uncertainty of their continued employment in the UK. Speaking at a House of Lords committee, Javid confirmed that the official “default” position would be to grant the status, with “very good reasons” being provided for any refusal. This will extend to any previous criminal convictions, which will have to show evidence of “serious and persistent criminality” in order to impact upon the application.

Organisations should be proactive in encouraging their EU workforce to be prepared to make a status application when the system opens, although the government has emphasised that individuals will have a period of time within which to make an application and there is no need to do it immediately.  Applications must be made by 30 June 2021.

The £170m scheme, which will be compulsory for all EU nationals living in the UK is also set to apply to persons from Switzerland, Iceland, Liechtenstein and Norway, although this is not yet confirmed. Those of Irish nationality will not have to apply, but will be given the option to do so.

Working out of hours harms productivity and mental wellbeing

Working beyond traditional working hours is harming the mental wellbeing of employees, according to the findings of recent research undertaken by Lockton.  The researchers found that a quarter (26%) of employees find working outside of traditional working hours harms their mental wellbeing, and 20% of staff believe it negatively affects their output.

Despite this, three quarters (74%) of large firms’ staff are contractually obliged to be available outside office hours, and over a third (36%) of HR Directors surveyed note that being online at home is expected as part of a role at their company. Chris Rofe, Senior Vice President of UK and International Benefits Practice at Lockton, warned that many employers are ‘not walking the talk’ when it comes to work life balance.  Whilst employers are spending millions on health and wellbeing initiatives, he considers that many are failing to acknowledge one of the biggest risks to their employees’ health and wellbeing, he said:

“This just doesn’t make sense and leaves employees performing sub optimally or at worst, burning out altogether. Even the most dedicated and driven employees reach their limit and employers owe it to all employees to ensure appropriate down time to re-charge and re-energise.”

Employers are also warned against measuring their staff against metrics which send a message that visibility is more important than productivity e.g. the number of meetings they attend, emails they send or hours they work.  These can be counterproductive and may lead to poor morale and lower productivity, rather than better performance.  Instead, companies who give their workers the incentive and flexibility to determine how they do their best work and reward them based on the impact and value they create rather than the hours they put in are likely to be the ones who will see the best returns in productivity.

Supreme Court judgment reinforces rules on employment status

The Supreme Court has delivered its Judgment in the long running case of Pimlico Plumbers Ltd v Smith. They ruled that a plumber who was dismissed in 2011 was a worker and not self-employed as his former employer had claimed, meaning he was wrongfully denied access to several employment rights including holiday and sick pay.  This decision is likely to set a precedent which will have widespread implications for all pre-existing and future employment status cases. The employer had originally appealed the decision of the Employment Tribunal and Employment Appeal Tribunal, however as this is now a decision of the highest court it cannot be appealed any further.

Following a heart attack in January 2011, Mr. Smith requested to reduce his working hours from five days to three days a week. His request was refused and his engagement brought to an end. This led to an argument in his employment tribunal claim, about whether he was actually self-employed, a worker, or an employee.  The Employment Tribunal, Employment Appeal Tribunal (‘EAT’) and Court of Appeal all found that he was in fact engaged by the company as a worker.

The Supreme Court upheld the decision of the Court of Appeal and found that Mr Smith was engaged as a worker.  It heard how Mr Smith was required to work a minimum number of hours per week, wear a company-branded uniform and lease a Pimlico branded work van fitted with a GPS tracker. His contract made specific reference to wages, gross misconduct and dismissal which are routinely associated with an employment relationship.  The court found that Pimlico could not be viewed as Smith’s “client or customer” as his services were marketed to individuals exclusively through the company itself, whilst they also controlled when the work was completed and how much he was paid. Significantly, the firm also restricted the plumber’s ability to compete with them for work following the termination of their relationship.

The Court also focused on whether Mr Smith was required to perform his work personally. If so, this would strongly indicate that he was engaged as a worker rather than genuinely self-employed. Pimlico argued that personal service was not required, as Mr Smith was able to send a substitute to do his work (although this right was not explicitly set out in his contract). However, the Supreme Court held that this right was limited, as he was only able to delegate to other Pimlico staff and, as such, it was more akin to a member of a workforce swapping shifts, rather than a genuine right to substitute. The requirement for personal service remained a “dominant feature” of Mr Smith’s contract, which focused on his own personal skills and competencies.

The question of whether an individual is self-employed or is a worker is crucial, as the latter are entitled to certain employment-related benefits such as paid annual leave, rest breaks, the national minimum/living wage, the right to be auto-enrolled into a qualifying pension scheme, and protection from detrimental treatment if they make a protected disclosure.

This case, once again, highlights the difficulty employers face in balancing the need for consistency and quality against maintaining flexibility.  For a number of commercial reasons, employers may wish to ensure that only operatives on a defined list, or who are signed up to their organisation’s terms, perform work for them.  However, it is important to be aware that, if such restrictions are imposed, the operatives are likely to be workers, even if they may be able to arrange for someone else from the organisation to carry out work in their place.

Government response to report on paternity options

In March 2018, the House of Commons Women and Equalities Committee published a detailed report outlining and evaluating the current options available for fathers to take time away from work following the birth of a child, alongside recommendations for their improvement. Amongst other things, their findings called for additional leave rights for fathers, making their options more equal to the existing maternity provisions.

In their recent response, the Government has considered each point put forward, covering issues such as paternity and shared parental leave and allowing fathers to attend antenatal appointments. Although there does seems to be some cohesion of views between the Government and the Committee, the Government has expressed concern that the Committee’s suggestions may not warrant the cost.

Whilst the Committee suggested that fathers should be eligible for paternity leave that is similar to the current provisions for maternity leave, the Government considers that the main reason for the difference in leave allowance is down to the recovery time required by a mother. They do, however, reaffirm their commitment to shared parental leave. They consider that whilst international evidence suggests a dedicated pot of leave for fathers results in higher numbers taking the leave, the reality is much more mixed in terms of the relative share.

The Government also notes that a common issue is a lack of knowledge surrounding rights that are already available to fathers by both workers and organisations. Although the Committee states that fathers should be entitled to paid time-off for antenatal appointments, the Government has found that fathers are unaware of their existing rights to take unpaid leave to attend two appointments. They find this unacceptable and stress that organisations must expect there to be significant consequences for not ensuring that their employees are able to take up this right, which is something they intend to look into further.  Organisations should therefore take steps now to ensure that they are  conversant with the existing provisions for paternity leave and that appropriate communication mechanisms are in place, so that their employees are fully aware of their paternity rights.

This newsletter was curated by Nicole Squires, MA, Chartered MCIPD, an Executive Consultant at People Based Solutions. People Based Solutions is an HR support company that specialises in supporting small and medium sized businesses meet all of their HR commitments. If you want to know how People Based solutions can help you meet your HR and Employment Law obligations click here for your free HR Health Check. Alternatively, you can call us on 01925 425 857, send an e-mail to enquries@peoplebasedsolutions.co.uk or Click Here to visit our website.

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