Not able to do the job?

Recently a client of mine came to me saying they had just received a solicitor’s letter claiming that someone they had hired and dismissed within two months was dismissed because he suffered from a disability. They wanted to reach a settlement. The truth was that he was dismissed because he had claimed at interview that he had a certain set of skills, and it had become abundantly clear that either he had lied at the interview or he had not appreciated what they were asking for (it was a technical job).
The problem was they hadn’t told him that. They just told him he wasn’t up to the job and told him to clear his desk. Unfortunately, there was no record of this conversation, and unknown to the management there had been a bout of office “banter” a couple of days before which the employee felt was having a go at people with his particular disability.
A perfect storm really and I have to say the cost of settling was much less than the cost and disruption that would have resulted if a claim had been made. So that’s what they did. So why when they had a perfectly good reason to let him go, did they not fight the case?
They didn’t know about the office “banter” and they also didn’t know about the individual’s disability (although it could have been argued that they should have realised). The point is from the ex-employee’s point of view he had not been told what he was doing wrong and just a couple of days before he was sacked he had been upset by some comments in the office which he felt referred to him. So, he had put two and two together and come to the conclusion that the dismissal and the comments were related. Actually, if you put yourself in his position it was not an unreasonable conclusion to come to.
The legal situation was also pretty worrying. If someone has less than two years’ service you are allowed to dismiss them for any reason you like provided it is not one of the “protected” reasons. For example making a health and safety complaint, asking for a payslip, having a protected characteristic under the Equalities act (sex, race, marital status, sexuality, religion, disability etc.), in short being dismissed in contravention of, or for asserting a statutory right.
The other legal point is that if someone makes a claim under Equalities legislation, it is for the employer to show that the employee had not been discriminated against. If they cannot then the tribunal is entitled to find in the employee’s favour. In this case our assessment, based on the facts, was that the employer would lose the case if it came to a hearing. Also the cost of settling was less than the cost of defending the case not to mention the disruption that would have been caused to a small company.
The message here is simple, in most cases even if someone joins you and quickly shows themselves unable to do the job you have employed them to do, they should always know what they are doing wrong and be given time to get it right before they are dismissed. You should also keep a record of them being told. It’s actually common sense really, but it can get lost in a busy workplace.
It also would have helped if they had called us before dismissing this employee!
By the way the picture is just a nice scene to help you feel good, it’s also where I wrote this blog so I can feel a little bit smug!

What could I do better, a response to a c*** up

When things go wrong often the first reaction is to point the finger and say “Well if people didn’t go off sick I would have a full complement of staff, and deliveries would go out on time”. Or “ If that nurse wasn’t so short with patients, we wouldn’t get those complaints”.
I know I’ve done it myself countless times and the result was the same, nothing changed. I recently recalled an interview with a player for the all-conquering Liverpool football team in the 70’s and 80’s. He said “After every game, win, lose, or draw we would analyse our own individual play and work out what we could have done better”.
They didn’t point the finger after a loss to point out another players failings, nor did they heap praise on someone who had played well after they won, they just looked at their own game and sought to improve. That way they all looked to improve and as a team they all took responsibility for their own game.
This applies equally to other areas of work. As a manager there is always something you could have handled better. For example, could you have managed sickness more effectively or could you have picked up the nurse’s comments before they led to a complaint. Could you have coached team answering the phone to make every caller feel important.
If this all sounds a bit like self-flagellation, I would paraphrase a book that I have turned to on many occasions for wisdom “ No one among has achieved perfect adherence to our principles, we claim progress rather than perfection”. In short no-one is perfect but we can all keep learning.
I have just read an interesting book called “Extreme Ownership” written by a couple of US navy Seals. Whilst I have to admit I didn’t find the testosterone fuelled nature of the writing to my taste, the messages in it made a lot of sense.
It is the job of leaders/managers to own an issue, so if a member of staff did something wrong, could you have done something different? In fact, if someone higher up the organisational hierarchy seems to be blocking you, could you “manage upwards” more effectively?
More on managing upwards in another Blog.


How do you make sure that job applicants have the right to work in the UK? This can be a confusing subject and the official Home Office guidelines use some strange terminology so I have tried to give you the basics in a straightforward way.

As an employer you are obliged to check, before you take someone on, that they are entitled to work here. If you don’t do this, and retain evidence of what you checked and when, you can end up being fined up to £20,000 or even imprisoned. Make sure that whatever you do is done routinely to all applicants to avoid any allegations of discrimination.
The best way to do this is to ask everyone who is invited to an interview to bring their passport and birth certificate with them. Have a look at their documents-you MUST see the originals and do so in their presence. If they were born in the UK, just photocopy the birth certificate-as long as it’s a full one, not the short version-and keep it on file if you employ them, destroy it if you don’t.

If they were not born in the UK, but hold a passport from any European Economic Area (EEA) country then they have a right to live and work here. If you decide to employ them you don’t need to do any follow up checks but you must retain a clear copy of what you saw when they started.

If they are from a country outside the EEA have a look inside their passport as any stamp (the Home Office call them ‘vignettes’) or visa’s/ letters which give permission for them to work here may be inside it. Also ask to see their Biometric Residence Permit (BRP) which contains all the necessary information. The BRP started being rolled out in April 2015 and should have been issued to everyone entitled to hold them by July but we understand this may not yet have happened. If they cannot provide any evidence that they can work here you are taking a serious risk if you employ them. Once you employ them you need to check their documents annually.

If you see and retain a copy of evidence of the right to work here and do the necessary follow up checks, you have what is a called a ‘statutory excuse against a civil penalty’ if they do turn out to be here illegally. Check the documents carefully but you are not expected to go beyond that –some forgeries can be very clever.

The Home Office offer a document checking service if you have any concerns. You can get more details from their web site where you will find ‘An employers’ guide to right to work checks’ which is detailed and comprehensive along with other useful guidance documents. There are also online interactive tools to help you understand what documents are valid depending where an applicant is from.

If you want advice on getting a safe recruitment procedure set up please give us a call on 0161 850 1122

Pulling a sickie

In the days before stress, back injuries were often cited by the unsympathetic as the malingerer’s disease of choice because they were difficult to diagnose. Now stress tends to make employers eyes roll with disbelief when they see it on a sick note. I’ve lost count of the number of times I have heard an employer say I don’t want to go through a procedure because he/she will just go off with stress and I’ll be stuck.

Personally I’m not sure that people used these as an excuse for days off half as much as some employers would have you believe (24 hour flu was much more prevalent in my view). However, I have experienced people going off with stress when threatened with a disciplinary hearing, so it does happen.

The point is that if someone has too much time off work, you can dismiss them and there is nothing in law that says you have to keep employing someone who is not at work. It’s not a matter of whether their illness is genuine or not (and that is often very difficult to prove), it a case of whether the business can support a large amount of sickness absence.

Of course you have to go through some procedures and checks for example getting a report from their doctor or a specialist, and seeing if there are any reasonable adjustments you can make to make sure they can attend work (and the word is reasonable here). But if at the end of the day they cannot work for you in a reliable way you are perfectly entitled to dismiss them.

More importantly however is the reluctance to deal with a disciplinary matter because you think that the employee will just go off sick. First if they go off sick you merely start the procedure for dealing with sickness absence, which makes it clear to the employee that the issue will not just go away. But secondly you also demonstrate to the other staff that the problem you were dealing with was important and that as an employer you are able to ensure people work in the way you want them to.

If you employ someone whose absence record is causing you problems give us a call on 0161 851 112

Relationships and work

One of the unusual things about employment law is that it regulates a relationship that can be very personal. For example a good loyal member of staff may become a problem because they are not doing what you want them to do. Now this could be a performance issue, if they have moved to a new job for example. Or it could be the result of a previously good relationship breaking down. In these circumstances employment law is a lot more like family law than contract law. There are loads of reasons the relationship can go sour, sometimes it’s as small as forgetting to get this person an anniversary card even though you were an usher at their wedding, whilst at the same time remembering to ask a much shorter service member of staff how their son did on his first day at school.

Habits that you developed when dealing with someone as a receptionist may have a completely different meaning if they are the office manager. For example you may take a message and fill in the message book and the receptionist thinks you are just trying to save them some work. If you sort out a staff absence problem for a manager, you may be seen as undermining them. In both cases you may have been just trying to be helpful, but the results are quite different.

If you have a long standing member of staff who is just not coming up to scratch, it’s often worth finding out if, there are any underlying relationship issues before going down formal capability procedures. The formal route involves hearings and evidence and may just set everything in concrete, with the net result that you end up having to replace a perfectly good member of staff with a complete unknown. The point is that when family issues become difficult, applying the law usually means the position is irretrievable. This is often the case with employment relationships, once you go formal the die is cast.

Not in the right place

What do you do when you are talking to a manager about how you can help them do their job better and they spend 80 minutes of a 90 minute meeting in tears?

Clearly the opportunity to help them do their job is limited as in between the snuffles and sobs they tell you that everything is OK and in fact it’s getting better. Really, so how do you behave when things are really bad?

Well some people are just in the wrong job and for whatever reason they will not accept this. At this point the Directors have to take a hard decision. Problem is that if you are in one of the public sector arenas you have been tied down by endless procedures and policies that just prolong the torture. Plus if you go down the procedural route it’s quite likely that the manager will get combative and you not only have a performance problem, you also have a growing antagonism between the directors and their manager, not good for the organisation or for the rest of the staff.

Whenever I post something like this on Social media I am usually met with the response that  you can avoid problems like this by always treating people with respect, agreeing an “action plan”, reviewing it on a weekly basis, giving the person achievable targets and getting their “buy in” to the solutions orientated process that has been set up. All very well as long as you’re happy to ignore the staff that have to fill in for the underperforming manager while you go through this process – who are becoming increasingly frustrated by your lack of care for their predicament.

Getting the manager’s cooperation in working towards an “action plan” can be a good way to deal with things when the manager takes up the position; but most of the time we are brought in long after things have gone wrong. If you want to make an analogy, it’s a good idea to teach people how to swim when they are in a training pool and supported, if you see them drowning you don’t spend time coaching them, you pull them out of the water.

So in short as a director or senior manager you have to think of all your staff when dealing with issues not just the one who is having a problem, which sometimes means making hard decisions.

Employment Appeal Tribunal decision opens up a whole new area of claims

In the case of Mr G Abrams vs EAD solicitors, the company owned by Mr Abrams made a claim against EAD that they had discriminated against them as a company by refusing to pass work on to them because Mr Abrams was older than EAD solicitor’s normal retirement age. Whilst the merits of the actual claim have not yet been decided, one issue has been ruled on that could have wide ranging implications for the way we do business in the UK.

The specific issue is whether company A can make a claim against company B for discrimination if the company B acted in a way that was detrimental to Company A because of a characteristic covered by the Equalities Act 2010. The Appeal Tribunal ruled that it could. What this means can best be described by way of an example.

Let’s say an evangelical Christian organisation wants to let a contract to repair the roof of their church. They put out an invitation to a number of local companies who bid for the work. One of the companies that puts in a bid is run by someone who is in a same sex relationship and well known in the community. The church holds strong views on this subject and decides not to award the contract to this company because of these views. The roofing company could then make a claim against the church that they discriminated against them because of their association with someone who is gay and this is unlawful under the Equalities Act.

There are two other issues that add a bit of spice to such a claim:

  1. There is no limit to the amount that could be awarded for such a claim so if the contract was for a few hundred thousand pounds that could be the award.
  2. When a claim like this is made, it is for the respondent to show that there decision was not based on a protected characteristic (in this case the sexuality of the company owner), not for the claimant to show that it was. i.e. the respondent has to prove a negative.

Whilst the possible ramifications of such a decision are essentially unknown, there is one that is almost inevitable. Local and central government procurement processes will become even more mind numbingly bureaucratic as they try to write a tendering process that stops them being subject to a claim under equalities legislation.

Whilst my gut reaction to this is that discriminating against a company because it has an enlightened approach to appointing staff and directors is just wrong. I can’t help feeling that this decision may have consequences that are equally distasteful, and actually create an environment that has the opposite effect to that intended by the legislation. I do not have the wisdom to know the right way out of this problem, but I would be happy to hear from anyone who has any thoughts.

Two Easters in one year

Does your new holiday year start on 1st April? If so then you need to read on because in the 2015-16 holiday year there will be 2 Easters and therefore 10 bank holidays whilst in 2016-17 there won’t be an Easter at all and so only 6 bank holidays.

In the absence of any guidance from the Government (maybe they have other things on their mind!) you need to agree with your workforce how you are going to handle this. The law says everyone gets 28 days holiday in a full holiday year-pro rata for part timers-which is split into 20 days to take as agreed between you and your staff and 8 days for bank holidays.

First of all, check what your contract says and talk to your staff. If you give more than the statutory minimum holidays or have staff who have accrued additional holiday entitlement due to length of service then you need take no action with them.

If you give the statutory 28 days, you can stick with that as it fully meets your legal obligation but will mean that in the coming holiday year staff have only 18 days to take when they want to but next year they will have 22. You could agree with staff that they take 2 days of next years’ bank holiday entitlement in the coming year so they still get 20 days to take when they like plus 10 bank holidays this coming year and only 6 next year. If you were feeling generous, you could award all your staff 2 extra days holiday this year but there is absolutely no obligation to do this.

If you want to talk it over please give us a ring and we will help you sort it out.

The minimum Wage and Care

I read Roy Lilley’s “almost” daily postings on the Health Service avidly.  There is so much I agree with and sometimes his writing is profoundly moving.  But …..

I have to take issue with his article on care and the minimum wage.  Don’t get me wrong I think paying minimum wage to the people who look after our loved ones (while a former Home Secretary asks for £5000 a day) is bordering on the criminal.  I also think the people who express indignation at the iniquities of Health and Social Care but at the same time think tax cutting is a moral necessity need to wake up and smell the bedpan.

However there are many people in the care sector who provide commitment, professionalism and not a little love for £6.60 an hour.  Yes, if you paid a realistic wage of £14 or £15 an hour there would be more of them but equally there would be plenty of people earning that much who would treat their residents, workers, patients or whatever like the contents of the aforementioned bedpan.

Increasing wages is vital, but is will not work unless the management of these services undergoes a radical overhaul.  When a culture of hiding behind job descriptions, avoiding responsibility and incessant moaning saps the positivity of even the most witless optimist, the outcome is obvious.

Politicians and the media share some responsibility for this state of affairs, but that’s another area that I have no idea how to change.  To be honest we need to have professions like these so that we have somewhere to put the idiots, so we can keep an eye on what they are up to!

What I do know how to change is the management of people and that’s where we should start.  Don’t suck people into large monolithic organisations where managers are forced to spend much of their time playing politics and day to day management is hived off to the dreaded “HR” department.  Match local delivery to local needs and encourage staff to make their bit of the Health Service better.

I’m reminded of a story about John F Kennedy walking round NASA in the 1960s.  He came across someone who was sweeping up rubbish and was obviously a cleaner.  He asked him what his job was and the answer came back “I’m helping to put a man on the moon”.  The story may not be true, but the message is valid.

The receptionist in your GP surgery is helping you have a healthier life – shouldn’t their manager tell them so, and shouldn’t we all cut them a little slack?

Management Style

There is no right or wrong way to manage staff, any style of management will tend to attract those people who work best under that style. Those that do not like the style leave. Even the bullying style and blame culture that is usually associated with autocratic management can be successful. Indeed one person’s bullying behaviour is another person’s refreshing challenge (within reason!).

The problems start when there is either inconsistent or no management. The key to avoiding this is to make sure the style of management is aligned with both the company’s values and the personalities of the managers. Get either of those alignments wrong and the result is demoralised staff and accusations of hypocrisy.

At KHES we don’t waste time moralising about right and wrong, we:

  1. Design practical solutions to help you manage your business.
  2. Support managers in their dealings with staff.
  3. Design Employment documentation which is both legally compliant and consistent with your aims.

We also take care to define clear boundaries for staff, there is plenty of well researched evidence that a lack of boundaries increases the sense of insecurity amongst staff as they do not know what is expected of them, and I have to say that often the ones that moan most about not being allowed the freedom to do their job are often the ones who are looking for an excuse!

So say good bye to policies and procedures that nobody reads, stop worrying about whether HR advisors will let you do what needs to be done and give your employees the tools to make your business successful.