Is #Priti #Patel a bully?

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It won’t surprise you that the question in the title is not one I am going to get into.

Firstly, just as I would be reluctant to label a child as a ‘naughty child’ just because they occasionally did something naughty, so I am reluctant to label any individual as being a ‘bully’ just because they may have displayed bullying behaviours.

Secondly, the concept of bullying means different things to different people and is somewhat difficult to define.

In a recent CIPD survey 20% of organisations reported an increase in negative conflict such as bullying and harassment in the workplace.  This is not surprising given the current covid related situation with so many people having to work in difficult circumstances.

Bullying and harassment are frequently complained of when employees are put under pressure in some way.  Their work is criticised, they are under the threat of redundancy, or their attendance is being reviewed are three typical examples.  This is not to suggest that it doesn’t also occur because some people intentionally or otherwise seek to intimidate or dominate colleagues.

In Priti Patel’s case, leaked reports in The Times suggest that she told civil servants that they were ‘f***ing useless’, and even the brief findings of the full report by Sir Alan Allan, reproduced in The Guardian, refers to ‘occasions of shouting and swearing’.

What is bullying?

The definition of bullying poses challenges, and I covered the similarities and differences between bullying and harassment in a previous blog about sexual harassment.

There are lots of different definitions of bullying (unlike harassment which has a legal definition in the Equality Act 2010), with the definition by #ACAS as the most frequently referred to

‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.

The Civil Service have their own definition quoted in the report about the Home Secretary’s recent behaviour

‘intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down’.

Interestingly, the Civil Service guidance also makes this helpful comment

‘legitimate, reasonable and constructive criticism of a worker’s performance will not amount to bullying’.

How will I recognise it?

Helpfully, in another publication, ACAS give us a few examples which include

  • someone has spread a false rumour about you
  • someone keeps putting you down in meetings
  • your boss does not let you go on training courses but they allow everyone else to
  • your boss keeps giving you heavier workloads than everyone else
  • your team never lets you join social events

Sometimes physical intimidation can be involved such as when a boss stands or sits on their desk towering over an employee whilst addressing them, or invades their personal space.

Does intention matter?

Priti Patel said ‘I have never intentionally set out to upset anyone’.  Sir Alan’s report acknowledges that the bullying behaviours may not have been intentional and that the Home Secretary was ‘frustrated by the Home Office leadership’s lack of responsiveness’.  But, that’s not really the point, it’s more the effect that is important!

Unlike harassment (which is similar, but on the basis of some form of discrimination), bullying in itself can’t give rise to a claim in front of an Employment Tribunal.  In most cases bullying gives rise to a claim for constructive dismissal, and it is for the Tribunal to decide whether the behaviour complained of was so serious as to breach the implied duty of trust and confidence that should exist between an employee and their employer.

They may decide this in relation to Sir Philip Rutnam’s constructive dismissal claim against Priti Patel after he resigned in February alleging bullying and whistleblowing.

The intention of the perpetrator does not matter (it’s not an excuse).

Being the subject of bullying behaviour can make some people ill with stress/anxiety etc. and give rise to a personal injury claim, and it may even be a breach of an employer’s ‘duty of care’ in health and safety terms, particularly if nothing is done after a complaint.

What do employers need to do about bullying?

  • A clear Harassment and Bullying Policy (and the best will give examples so that employees understand the types of behaviours that are unacceptable) will be important in large organisations, but they are not everything.
  • What will be far more significant will be leaders challenging bullying behaviours, setting an example themselves, and providing guidance to individuals when unhelpful behaviours are observed. Remember, that for some people, it will be unintentional, and a quiet word will ‘nip it in the bud’.
  • Don’t forget that your responsibilities will also extend to events outside work, but that are reasonably connected to work – this could include the pub next door where everyone goes for a drink after work on Friday.
  • Either in work or connected to work in some way, don’t fall into the trap of thinking that if nobody complains I don’t have to do anything. ‘I can’t do anything unless you put it in writing’ never has been an appropriate response in this area.
  • Encourage leaders to be proactive and create an environment where people feel it is safe to raise issues and that their concerns will be treated with appropriate confidentiality.

Above all, remember that colleagues do not perform at their best in an environment where bullying is allowed or condoned.  It rarely gets the best out of people, so there is a cost to the business.

Given the outstanding Rutnam case mentioned above, we have not heard the end of this matter.

For me, it’s provided a nice opportunity to write about something other than covid related employment matters.

Stay safe.

Ken Allison | 25 November 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Questions for the ‘New Normal’…. 5 questions I’ve been asked in #CEO groups in the last fortnight.

During the last fortnight I’ve given my presentation, ‘The F Word’, to about 200 #CEOs of #SME businesses, most of whom have been grappling with getting their businesses fit for the future and maximising the benefit of the CJRS to conserve their cash flow as we get the country back to work.

Here are 5 of the most popular questions I have been asked.

1.  If an employee doesn’t want to carry out their role if you bring them back from furlough can you leave them on it?

Not all my answers are so long (!) but this really is an important issue at the moment.

Although not wanting to carry out their role is different from not wanting to come back to work, you can leave an employee on furlough as long as you like and as long as the scheme is available, but just remember that it looks as if from August employers will have to contribute towards the 80% wages costs.

Grappling with the ‘reluctant returners’ is one of the most difficult issues being faced by employers at the moment.  Despite the fact that ACAS say that ‘If an employee refuses to attend work without a valid reason, it could result in disciplinary action’, any action should be preceded with dialogue.

That dialogue should endeavour to address the anxieties of staff, and in particular, the steps you have taken to make the workplace safe.

I have covered what the various anxieties might be in a previous blog, and emphasised the need to be able to demonstrate that you have complied with the Governments 5 steps to a covid safe working environment:-

  • Carried out and shared the results of a covid 19 risk assessment
  • Have cleaning, handwashing and hygiene procedures
  • Helped people to work from home wherever possible
  • Taken steps to maintain 2m distance at work
  • Where not possible to maintain social distancing, done everything practical to manage the risk

Following these steps and communicating them to employees will go a long way to removing their anxieties and preventing a claim that they reasonably perceived that they were in imminent danger if they came to work, which is most likely to be their claim if action is taken against them.

Ultimately, if someone is refusing to return to work, that could lead to a dismissal, but it is a situation where you will need professional advice.

2.  We have terminated the contract of someone with less than 2 years’ service. Notice expires end June. She wants us to keep her on furlough until it runs out. Could we or should we do that?

Someone with less than two years’ service can be dismissed without a reasonable process.  That’s not to suggest that you behave unreasonably, but you do have more flexibility with these colleagues when faced with having to make redundancies, and this is probably the context of the question.

You can extend her notice if you wish to, but take care that does not lead to her accruing the two years necessary to claim unfair dismissal.  Also note that she will accrue more holidays, so require that they be taken during her notice.

3.  Can we alter the furlough agreement re holiday clause?

Yes, employers have always been able to require that holidays be taken at specific times.  Many do it at Christmas, and some have measures that ensure holidays are evenly distributed throughout the year (phased holidays).

If you have not provided for holidays in your original furlough agreement  here’s an example of something you could add:-

‘We require you to use all accrued holiday by the end of July, and if we extend your furlough further, any more holidays accrued must also be used by the new end date for furlough.  If you have any doubts about the rate of holiday accrual, please discuss this with one of us, but basically most of you will have a total holiday entitlement of 32 days including public holidays which accrue at the rate of 2.66 days per month.

You should book your holidays in the normal way, and you may want to choose dates that you definitely would prefer us not to call you back into work’.

You do not have to follow this exactly; a lot might depend on where you are in your holiday year.  Clearing at least 50% of your accrued leave might be another option.

4.  I understood employees can carry holiday over for 2 years due to Covid, is this right?

This is only partially correct.  The Government has passed legislation which allows the carry forward of annual leave where the employee has been prevented from taking it – normally carry forward of 4 weeks of the statutory 5.6 weeks holiday is not allowed.

It is only really for situations where an employee wants to take their leave in the current year, but cannot because you are, for instance, too busy.

The Government has published guidance on the topic, which includes on the rate of pay for holidays during furlough – although, frankly, they simply quote complex regulations which are rarely followed to the letter anyway.

The consensus amongst legal commentators is that whether on furlough or during a temporary period of reduced salary or hours, holiday pay should be at the ‘normal’ (100%) level for salaried staff.  There are different rules where pay varies.

5.  If an employee agrees to resign, rather than be made redundant, can they give a resignation notice to expire at the end of July, and if they do, can they withdraw it before that time or can it be enforced?

They can give you notice which is longer than required in their contract and you can refuse to allow a withdrawal of notice.  There are circumstances in which you need to take care in refusing.

For instance, if a resignation was given in haste, such as after an argument.  Then it might be reasonable to allow a withdrawal.

A resignation under pressure might also lead to an unfair dismissal claim – for instance, a situation where you put it to someone to resign or else, we will make you redundant!

These questions were also interspersed with lots of others about the challenges of managing colleagues who are working remotely.  I covered this briefly in my recent #LinkedIn blog and I intend to return to this theme in the future.

Watch this space.

Ken Allison | 28th May 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Nothing in this article should be relied on as a substitute for taking professional advice about your particular situation.

 

 

 

Has sexual harassment in the workplace increased?

Here’s my take on one of the most covered employment related news topics this year, and answers to some key questions.

With the amount of press coverage given to the behaviour of politicians, aid workers, business leaders, film producers, and large companies such as #Google and #Uber involved with allegations in the last year, you could be forgiven for thinking that #sexualharassment in the workplace has increased.

It probably hasn’t, but there is little doubt that there has been increased reporting as various campaigns (#MeToo, #TimesUp etc) have drawn attention to this issue.  Despite all this attention, only 30% of respondents to a recent ACAS Survey thought that sexual harassment had decreased in the last five years and only 24% thought that recent international media coverage had improved their workplace culture.

We appear to have an endemic problem which in the past has not been reported.  In their ‘Ending sexual harassment at work report’ (2018) the Equality and Human Rights Commission found that approximately 50% of respondents had not reported harassment due to fears of consequent victimisation and a feeling that senior management was ‘untouchable’.

OK, so that’s the big picture, but what are the everyday questions that key decision makers in businesses need to understand.

What is sexual harassment?

It’s a form of discrimination, and there is a statutory definition found in the Equality Act 2010.  ACAS summarises it like this:-

‘Unwanted conduct related to ‘sex’ (editor), which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

The definition includes behaviour that might not be specifically aimed at one individual (for instance circulating offensive material of a sexual nature) and treating someone less favourably because they either accepted or rejected conduct of a sexual nature (someone gets overlooked for promotion because they rejected a sexual advance).

What is the difference between harassment and bullying?

People often claim these two things together.  There is a distinction, but it is quite a fine one!

Bullying is behaviour that has similar effects as harassment but is not on the basis of sex or any other characteristic that is protected by equality legislation.  It usually involves an abuse or misuse of power.

Bullying is not discrimination, but an aggrieved employee can resign and claim constructive dismissal, and if their health suffers, for instance because of persistent intimidation, they may well have a personal injury claim on the basis of the employer failing in their health and safety ‘duty of care’.

On the other hand, someone who suffers harassment can go to an Employment Tribunal and claim discrimination, for which compensation is uncapped.

Is it my responsibility to take action even if nobody is complaining?

Employees may be too scared to report this type of behaviour, but this does not mean you should ignore it if you know it is going on.

It will often be affecting performance, productivity, absence from work, and unnecessary staff turnover. It will be costing your business money, not to mention huge reputational risk.

The least you should do is investigate.

Do I need an anti-bullying and harassment policy?

If you have heard one of my #ceo briefings, you’ll know that I am not a great fan of solving things via a policy.  It rarely works.

Formal or informal (a quiet word) education and training and setting an example yourself, are likely to be more effective.

There is a big ‘however’ here though.

A policy (and the best will give examples so that employees understand the types of behaviours that are unacceptable) that is effectively reinforced may well prevent bullying and harassment, and if it doesn’t, it may still lead a Tribunal to conclude that an employer had taken reasonable steps to prevent these behaviours and thus not be liable.

If you are a small organisation without a policy, a Tribunal would take the size and resources of your organisation into account and is very unlikely to penalise you for not having one.

In summary, my advice would be if you have a staff handbook, then add a policy if you don’t already have one.  If you don’t have a staff handbook, don’t get one just for this reason.

Is telling someone what to do bullying or harassment?

Employees often claim bullying or harassment when they are told to do something they don’t like doing, or they are given critical feedback.

If you are asking someone to do something, and you would not ask someone of the opposite sex to do that, it may amount to harassment.  Similarly, if the manner you speak to someone is different because of their sex.

Ordinarily, just telling someone what to do or giving critical feedback is well within the expectations of an employment relationship, and I would make this clear in any policy with a statement such as:-

‘Legitimate, reasonable and constructive criticism of your performance or behaviour, or reasonable instructions given to you in the course of your employment, will not amount to bullying on their own’.

Stories of sexual misconduct have caused considerable political embarrassment this year, and it is a shame that it takes this to encourage further action, although whilst the Government is otherwise distracted (sorry Bob – Bored of Brexit – I had to mention it!) we may see nothing more than promises.

There has been talk of :-

  • creating a mandatory duty to prevent sexual harassment (which would presumably require an employer to do something about an incident even if the victim did not want it pursued),
  • a ‘code of practice’ similar to those we have for discipline or flexible working,
  • the reinstatement of protection against third party harassment (various surveys have estimated that 15 to 20% of sexual harassment has been perpetrated by customers or clients)
  • extending Employment Tribunal claim limits from 3 to 6 months for sexual harassment cases,
  • banning redundancy during pregnancy, maternity leave and for six months afterwards (in 2015 54,000 women lost their jobs as a result of pregnancy discrimination) as is already the case in Germany,
  • extending protection from sexual harassment to volunteers and interns, and
  • making ‘gagging’ clauses illegal in respect of sexual harassment.

The moral here is not to wait for legislation.

Take some of the steps outlined above.  Investigate concerns, set an example yourself, have a preventative quite word where necessary, and get and promote a policy (surprise, surprise, we can provide one if you want).

 

Ken Allison | 28 November 2018 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

 

Bonuses: why pay ’em

Earlier this year Eric Daniels (the one-time CEO of the Lloyds Banking Group) successfully sued his ex-employer for an unpaid #bonus of £1.3 million worth of shares.  Litigation of this type outside the financial services sector is thankfully rare, but bonuses do often lead to disagreements, particularly when people leave.

I remain amazed how documentation is often drafted casually, if at all, and how bonus arrangements continue year after year with very little thought about their effectiveness.  If this rings bells for you – read on.

What are bonuses?

Bonuses have long been a part of the pay landscape, with very little evidence about their effectiveness as a motivator.

Wikipedia describes a bonus as ‘an extra payment for doing one’s job well’, and supporters will argue that they reinforce desired behaviours such as a focus on profitability or sales.

In reality, many bonuses are only loosely linked to individual performance, and critics will argue that unless there is a clear ‘line of sight’ between the objectives (levels of profitability, sales, effecting change etc.) and the contribution made by individuals, the prospect of a bonus will not influence behaviour in the job.

They are often little more than a deferred payment.

Detractors will also argue (following in a Maslow/Herzberg tradition) that it is the intrinsic value of the job that motivates, and quote numerous studies where reward comes well down the list of priorities as a motivator. For employees they can be unpredictable, often don’t count towards pay for the purposes of obtaining a mortgage, and they are usually non-pensionable.

On this latter point, care should now be taken to ensure that any bonus, regardless of what it says in the contract of employment, will be pensionable if the employee’s pension does not otherwise reach the upper earnings limit of £46,384 (2018/19). If you are offering a final salary pension scheme, you also need to check the scheme rules to ensure that they don’t require bonuses to be pensionable.

How popular are they?

The CIPD Reward Survey reveals a steady reduction in the number of employers using bonus schemes of one sort or another.  Overall 48% of employers used them (43% of SMEs) in 2017, although the decline is probably largely due to the capping of bonuses in the financial services since the 2008/9 crash.

The figures illustrated below show the decline and also that, outside of financial services (Rest of Economy), bonus payments make up about 5% of total pay compared to 20% in financial services (used with permission).

What are the different types of bonuses?

Very often bonuses are related to profitability or sales, meaning that they are only paid if the organisation can afford it, and managers can (within limits – see later comments) exercise some discretion over pay outs.

Typically, bonuses relate to individual, team or overall organisational performance (in the latter case usually profit) and can be ‘tiered’ to reflect different levels of achievement.  At one time there were tax incentives for schemes that paid all employees a bonus based on profitability, which was thought to encourage an overall focus on the purpose of the enterprise being to make a profit.

In Eric Daniel’s case some of the bonus apparently related to the successful integration of HBOS into the Lloyds Group – sometimes known as a ‘project bonus’.

Commission is a type of bonus usually contractually paid on a regular basis in relation to individual sales performance.

Bonuses are often paid in cash, but in the US, non-cash incentives such as a holiday for the top sales person, or retail vouchers play a prominent part in reward, and share options are often used for senior executives, such as in the Eric Daniels case.

What are the legal implications?

Despite the unlikelihood of litigation (outside of the financial sector), here are five tips for ensuring that things go smoothly.

1. Be clear about the the contractual/discretionary nature of the bonus.  Outside the financial services sector, contractual bonuses are rare, although they may sometimes be given when an employee joins you, and you guarantee a level of bonus for the first year.  The most common bonus arrangements reserve some level of discretion on behalf of the employer, either to award a bonus at all, or to award subject to agreed performance criteria.

2. Avoid acting in an inconsistent manner. Employee’s should be able to trust their employer, and tribunals/courts will be unsympathetic to random or perverse decision making regarding the payment of bonuses, even if discretion has been reserved in the contract.  Discretion is not unfettered.

Also, unless you reserve the right, you cannot withhold bonuses for other reasons such as the employee being subject to disciplinary action or because you cannot afford it.  In instances where substantial bonuses relate to financial performance, companies can reserve the right to clawback payments in the event of it needing to restate its accounts or discovering material wrong doing on the part of the employee.

3. Regularly review bonus schemes so that an employee can’t argue that a particular payment has become contractually binding.  Business priorities change over time, and bonuses should reflect changing priorities.  The best way to achieve this contractually is to give a right to participate in a discretionary scheme which the Board may vary from time to time.

4. Be clear about what happens on termination (the most frequent cause of arguments!).  Commonly, well drafted bonus provisions make it clear that there will be no right to a bonus if the individual has left or is under notice at the time the bonus is payable.  Note, the normal payment date may be different from the, for instance, end of the financial year to which it relates (sometimes referred to as the ‘due’ date).

There is an argument that if someone has earnt a bonus, they should be paid it, but this is a moral or motivational issue, rather than a legal one.

There is certainly the possibility of unintended consequences when it comes to this type of non-payment clause.  It can lead to ‘team moves’ where groups of employees leave together as soon as they have received their bonus, and to less effort and interest when someone is working their notice without needing to maintain performance levels previously motivated by the prospect of a bonus payment.

5. Make sure you are fair towards employees on long term leave.  This is a complex area, which some employers (although unusually) try to overcome by having an ‘active service’ clause which says that you have to be in service (i.e. not on maternity, parental, long term sick leave etc.) at the time the bonus is payable.  The law is not exactly decisive on these types of issues, but generally an employee should not have their bonus affected by being on sick leave (it could give rise to a disability discrimination claim), but it is broadly accepted that bonuses can be ‘pro rated’ for women on maternity leave (and probably men on Shared Parental Leave).  Unless you have stated it clearly in the contract, you should take advice about this.

6. Watch oral promises, they may be binding.  Whilst Tribunals accept that promises made under the influence of alcohol at the office Christmas party cannot be relied on, other promises where they are quantifiable and clearly intended to be binding will be enforceable.

You may not have the €400 million bonus pool exposure that Dresdner Kleinwort had when they were found to have orally promised that amount to employees in 2008, and then tried to rein in the promise by introducing a ‘material adverse change’ clause that had not existed before. In the SME sector agreements are often made orally, so take care.

If you currently operate a bonus system, you are unlikely to achieve much by removing it, but you might want to review it to ensure that it is fit for purpose.  You may conclude that it is merely a deferred payment, but you may also see opportunities to align it more effectively to the strategic goals of the company.

At the very least, you might want to ensure that bonus terms are clear and unambiguous.

Ken Allison | 03 October 2018 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone-based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

 

Is #Carrie Gracie a 21st Century Dagenham Lady?

In the same month (June 2018) as the 50th anniversary of the ‘Dagenham Ladies’ strike, the BBC gives £280,000 (according to The Telegraph) back pay to Carrie Gracie following her complaints about #equal pay.

On the same day as the #BBC publishes it’s 2018 list of top earners I take a look at what this case was really about, and what can be learnt from it.

In 1968, a strike by sewing machinists in the Ford plant in Dagenham, became a focal point that led to an intervention by the then Employment Minister, Barbara Castle.  Many credit this with leading to the Equal Pay Act 1970.

Fifty years on, we still have a national gender pay gap of 18.4% (worth noting that the BBC reported less than half the national average at 9%), we see the first publishing of gender pay gap reports by companies with more than 250 employees, and there is a major row between female presenters and BBC management.

What does the law say?

The right to equal pay is now enshrined in the Equality Act 2010 (and supported by a Statutory Code) and has the effect of incorporating into every contract of employment the right to the same terms and conditions as a comparator of the opposite sex in the same organisation providing they are doing ‘equal work’.  ‘Equal work’ means ‘the same or broadly similar’ (like work), work rated as equivalent by a job evaluation process, or, work of equal value in terms of the demands made such as the effort, skill and decision making involved.

Is it always unlawful for people to be paid differently for equal work?

No. There can be many reasons why differentials exist, the key is that they must not be to do with a gender difference.  For example, differences may exist because of past performance, length of service, geographical location, or even because of a genuine mistake.

What are the risks?

Equal pay claims are complex, and for this reason they are usually brought before a Tribunal on a collective basis by Trade Unions, or by highly paid individuals such as broadcasters. A Tribunal has the power to award up to six years back pay.

The effect of these judgements can be huge.  Currently before the courts are claims against major retailers such as Tesco, Morrisons and Asda, where employees on check-out tills are claiming equal pay on the basis of their work (largely done by women) being equal to the work in distribution warehouses (largely done by men).  In one of these (Tesco) the award may be the largest ever claim at £4billion.

Was Carrie Gracie’s case really about equal pay?

In her open letter to the BBC, Carrie Gracie says:-

“The BBC belongs to you, the licence fee payer. I believe you have a right to know that it is breaking equality law and resisting pressure for a fair and transparent pay structure.”

The BBC may have been resistant to transparency, but I’m not sure that it was breaking equality law.  Carrie claimed that two male international editors were being paid at least 50% more than the two women editors (Katya Adler is the other women whose salary has now also been adjusted according to today’s BBC 2018 top pay list).

Now, the BBC may well have had a reason for these differentials which was not to do with gender.  It could, for instance, have argued that John Sopel occupied the top international job as the Washington editor, and Jeremy Bowen effectively worked in a war zone.  In other words, there were other differences largely to do with geography or political significance.

The real reason why this case has been settled, and we may never know the detail, may be more to do with Carrie’s understanding that when she accepted the job in China, she had secured pay parity with these other male editors.   Her argument may really have been a contractual claim that she did not get what she was promised, and when the BBC published figures in 2017, all was revealed.  With some justification she may well have a case that the lack of transparency masked a wider approach which rewarded men more highly than women without justification, but the crux in her case may still be that she was promised something she did not get.

Is a promise like that, even if only verbal, enforceable?

Yes it most probably is.  An oral promise that she would be paid the same as others, particularly if it was given in the context of a recruitment discussion, could amount to a contractual undertaking.  A Court may well uphold it provided it was satisfied that the fact that it was said is not contested (the BBC admitted it), that it was clearly quantifiable, and intended to be a binding undertaking.

What can be learnt from this situation?

  • Be careful about oral promises.  They can be as equally binding as the written word.
  • Have a look at the pay differentials in your organisation.  If people are doing equal work, can the differences be explained by factors which are not due to gender differences.
  • Having an overall gender pay gap (see ACAS Guidance) may not be unlawful but may be indicative of other structural issues that need attention.  For instance, is their unconscious bias towards men when making senior appointments.  Some organisations are attempting to overcome this by banning single sex selection panels.
  • If you are nervous about employees finding out about what each other are paid, ask yourself why.  It may well be because you can’t justify it.  Worth remembering pay secrecy clauses, which were very common in the financial services sector, are now, effectively, unlawful.
  • Review how you handle issues that affect the career progression of women, such as returning from maternity leave and flexible working.

Carrie Gracie is undoubtedly passionate about the issue of equal pay.  She insisted on it when she took the job, resigned when she found out that promises had not been honoured, and is donating her back pay to the Fawcett Society (an organisation that campaigns for women’s rights).

On top of all that (I think!) she is a great journalist, but, is she a 21st Century Dagenham lady?  Yes and no!  She is clearly passionate about the same issues, but her actual circumstances were probably more about a failure to honour a contractual undertaking than they were about equal pay.

Essentially, Carrie appears to have been compensated for the failure on the part of the BBC to honour a contractual undertaking that she would be paid the same as someone else, this does not mean that the BBC was breaking equality law, as it may have been able to justify the difference in pay.

In their statement on the matter, the BBC said:-

The BBC acknowledges that Carrie was told she would be paid in line with the North America Editor when she took the role of China Editor, and she accepted the role on that understanding……..The BBC acknowledges the specific circumstances relating to Carrie’s appointment, apologises for underpaying Carrie, and has now put this right. 

Despite these specific circumstances, it has been acknowledged by others including Clare Balding, that she has been fighting the cause for all women.  With only 2 women in the top 20 earners in today’s list, there’s still quite a way to go.

 

If you have enjoyed this blog, and would like to read another recent one, go to http://bit.ly/10documentsyouneed

Ken Allison | 11th July 2018 | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

How useful is graphology in recruitment, and how to improve your hiring success rate?

In a recent survey published by The Academy for Chief Executives respondents indicated that recruiting, retaining and developing of quality people was the No 1 concern for SME leaders in 2018, beating even the uncertainty of #BREXIT!

This struck me, as the suggestion is that most SME’s pay attention to compliance issues, and other aspects of managing people often take second place – see People Skills: building ambition and HR capability in small UK firms.

Compliance is my area of expertise, and you may have heard me presenting, training or writing about employment law related topics, but this is not because I think it is the most important part of people management.

So, I thought I’d write about recruitment for a change, because this is probably the most important area where a few simple steps can significantly improve an organisation’s performance at getting the right people the first time.

Recruiting staff is an expensive and risky process, and is the area that professional HR advice can often make significant improvements producing an immediate return on investment.

Three questions that will help you improve your recruitment processes.

Firstly, do you know whether you recruit well or not?  Put another way, is there a problem you need to solve?

If recruitment activity is taking a lot of your time, it can be caused by:-

  • speed of growth,
  • skills shortages in your sector or geographical area,
  • reward package,
  • approach to learning and development – you’re not developing people enough,
  • ‘time to fill’ – your process is just too slow and people go elsewhere (in a 2016 survey 41% of respondents said this had lost them candidates in the previous 12 months), or
  • the lack of clarity about the people characteristics you want.

There is a measure which will help you understand how you are doing compared to others.  In 2016 (link for CIPD members only), the median rate for labour turnover was 16.5% – Number of leavers p.a. / average number of employees X 100.

The median figure relates to 8 people leaving each year in a 50-people organisation and other evidence suggests that most of these leave within their first year.

This median figure has risen in the last few years, and may not be reliable as a long-term indicator.  My own guidance is that if turnover exceeds 10% p.a., you need to understand why.

Secondly, do you understand clearly what you are looking for?  Getting this right is the number 1 thing that can help you reduce turnover.

It’s very hard to undo a mistake we make in recruitment.

Many of us get recruitment wrong because we don’t know what we are looking for, so we make our recruitment decisions in the first 30 seconds of an interview, and spend the rest of our time trying to justify our initial impression.

The traditional way of defining what you are looking for is the ‘Person Specification’, often detailing the skills, knowledge, experience and other attributes that a candidate needsDon’t go overboard on experience, as it often is not a good indicator of future performance – it’s their skill you should be looking at, not how many years they have done it!

A decent ‘Person Spec’ will work wonders, and if you don’t already do them, take a look at my guide at http://bit.ly/personspecs .

Another way of defining what you are looking for is to think about the behaviours that you would expect a successful candidate to exhibit.  I often ask managers to think of the best performer in a role that they have seen.

Imagine if they were watching a video of them at work, what would they observe them doing.  This is the start of designing what is called ‘competency based’ assessment or interviewing.

Thirdly, having defined what you want, take a look at the design of your recruitment process.

There are estimates that suggest that the average (even well structured) interview is only 50% reliable at predicting future performance.

You can significantly improve this by using the competency based techniques described above, and you can pick up my guide on how to turn the video observations into interview questions at http://bit.ly/competencybasedinterviewing .  Don’t worry, it’s free and you won’t have to leave me an email address!

Also, take a look at this great collection of competency based questions I saw recently on LinkedIn

Try and think about building in other processes.

A client rang me to for some psychometric profiling, after being frustrated at losing two new Marketing Managers in a 6-month period.  The problem appeared to be simply that the new people were just not fitting in to a family business with 50 employees.

Having defined more clearly what we were looking for, we designed a simple intervention to allow us to observe how candidates were likely to fit in.  This involved organising a Q&A session with all the candidates and the marketing team over lunch before the interviews.

The best way to assess future performance is to organise a workplace simulation, and this is precisely what the Q&A session was (sometimes they are called ‘job auditions’).  An opportunity to observe the candidates doing what they would have to do to succeed at the job.

This was a low-cost intervention.  Others, such as, psychometrics, there personal interests, or the views of referees, may be useful, but the evidence is that length of experience is a less reliable indicator of future performance than graphology (much favoured by the French!).

In 2016, the median cost of recruiting a senior manager was estimated to be about £6000, but since this includes internal promotions, the real cost for many is likely to be double that.

At this level of investment, it is obvious to see how spending time being clearer about what you are looking for and designing your selection process around that, could help you get the right people first time, and reduce the very expensive cost of people who leave in the first year.

 

Ken Allison | 19 September 2017 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.