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.

Inverting the pyramid

Many years ago, when I gained promotion to my first management job, I thought it was a case of telling people what to do and making sure the numbers added up.  Pretty soon I was swamped with insecure staff asking my advice, poor performing staff taking up 80% of my time, high staff turnover etc. etc…………. It was all so confusing; if they just did the job the way I used to it would be fine.  After all, I had been promoted on the basis of my performance.  
Outside of work, I had been forced to take professional advice on some personal issues, which resolved most of my problems by downsizing my ego and reducing my own sense of importance.  A great friend and mentor of mine (having listened to a couple of hour of my whinging) recommended that  I apply the same principles to management and passed on a technique for doing this.  He suggested that when I was commuting to work in the morning, I visualised my role as being at the bottom of the pile and that my function was to enable staff to achieve their potential – not get them to do everything my way.  He also suggested that I learn to not react immediately – because my instincts were clearly not working at the moment – so I needed a few minutes to think things through rather than “wing it”.  
Those of you who know me will recognise how hard I found it to take that advice!
By taking this route I discovered the most powerful question I could ask when I was being asked for advice was “What would you do about this then?” I also found that if I received the answer “I don’t know that’s why I’m asking you” the best response was to give them my advice and ask them to complete some other task for me that I had been unable to finish.  This avoided the problem of making people think they couldn’t come to me with problems but they didn’t bother me with trivia. 
The results were immediate and made my life substantially more satisfying.  I also found that by giving all the credit for work well done to my staff, they seemed to enjoy the experience much more as well. 
The other point was that I also had to learn that no technique would work for every member of staff, so I had to adapt my approach to the personality in front of me. Not all of my staff were natural problem solvers, but give them a piece of detailed work to do with clear instructions and they could plough through work and get it right first time, you just couldn’t rely on them to solve any problems.
I can’t say I managed to maintain this behaviour as much as I should, but I managed to do it enough to realise it was a goal worth working for.  So, with a certain smugness I starting passing on this new “wisdom” only to find that John Timpson’s excellent book “Upside Down Management” was already doing so in a far more eloquent way. 
Sometimes my ego is my worst enemy!

Not right for the job

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.

Taylor Report: Sorting out the mess

Initially the idea of the Taylor report was to address issues found in the “gig” economy, where staff were not employees but took on work on an as and when basis. However, in a development that surprised no-one, some of the recommendations affect all employees.  
Back in the good old days when trains ran on time and kids played football in the streets, life was simple.  You were either an employee or you weren’t (with the exception of casuals who did work as and when they were needed).  Then for reasons that are not clear we deemed it necessary to create a new category called a “worker”.  Ever since then law firms have made a decent living arguing over the minutiae of employment status. 
Now in a change that could well have virtually no impact other than a corrective one, these “workers” are to be called “dependent contractors”.  As far as I can see the only effect of this is that some poor soul will have to go through the whole of employment legislation and change the word “worker” to “dependent contractor”. 
 However, in a development that surprised no-one, some of the recommendations affect all employees and therefore all of our clients.  
 The main changes will be: 

  1. Written contracts of employment are expected to include a description of the statutory rights they are entitled to (I look forward to the contract for a male worker which includes  the right to a risk assessment if he becomes pregnant!)
  2. Contracts should be issued on day one of employment or employers could face a claim for compensation.
  3. “Workers” to be treated as employees for tax purposes and provided with contracts on day one.
  4. The definition of “dependent contractor” to include more self-employed people.  I have no doubt this will have a major effect on the construction industry.
  5. Changes to the current situation where the right to send a substitute to do the work is a determining factor on whether somebody has “worker” rights
  6. Holiday pay to be “rolled up” i.e. paid as it is accrued.  It is not clear which who this will apply to, but presumably it will include casuals and dependent contractors. This will certainly make life easier for some of our clients.
  7. Zero hours’ workers to request regular hours after 12 months.  Most of you will know I am no fan of zero hours’ contracts; rather than manage staff effectively, employers simply stop offering work, with the result that a constant stream of ineffective staff flow through the organisation.

The effect of this report will very much depend on what the government decides to do with it.  As our government is quite preoccupied with other issues at the moment, it is not certain that the recommendations will be put into practice in the near future, but it is better to be aware of what may be coming down the line.   
Meanwhile if you have people working for you who have not been given a contract of employment contact us on 0161 850 1122 and we will help you get ahead of the queue on this issue. 

Doing The Right Thing

Sickness absence is one of the most frequent problems we deal with at KHES.  In particular, the employee that says they are unable to work because of stress or depression.
One of the key worries of our clients is that the employee is just “pulling a sickie”.  
I used to manage a group of legal advisors and there were three staff who had a lot of time off for depression or stress related issues. When I took over the department the situation had been going on for nearly 2 years. 
As stress and depression are often self-diagnosed I decided to book each one of them in for a medical assessment with a clinical psychologist.  
The first person was felt to be suffering because he had recently lost 2 close members of his family.  The psychologist recommended a course of counselling and a programme of gradual return to work.  The process was successful and after 6 months we had an effective member of staff who was happily handling a heavy workload.  
The second person immediately refused and claimed that we were treating him unfairly.  In truth, I suspect he was worried that an expert would see through his depression, so he left before he was pushed.  The claim of unfair treatment went nowhere. 
That just left the third person, who returned to work as soon as the second person resigned. We found out that she was only off sick because she was constantly having to cover for the second person, but didn’t want to subject herself to a medical examination. 
The net effect was that we got 2 members of staff back in work and contributing to the company and got rid of the member of staff who was unwilling to address his high absenteeism. 
The lesson in this is that the system works well for employees who have a genuine illness and ensures they are taken seriously and not discriminated against.  From the company’s point of view, it also works just as well for those employees who are “swinging the lead” who discover that their claims of illness will be thoroughly investigated.

Flexible Working Boon or Curse

It all depends, but to steal a quote “I’ll tell you a story”.  
I was managing an employment law helpline when we offered a job to a woman who came highly recommended from a competitor.  We had done it all properly, issued letters with salary details, start date and everything when she phoned me to apologise and say she couldn’t take the offer as she had just found out she was pregnant.  
Two things to remember here.
1.     I did not know this woman
2.     She was an experienced employment law adviser
Quite apart from the fact that it was a large department and I had no problem covering maternity leave, I do feel that women suffer disproportionately in the workforce because of their role as a mother.   It would be a very stupid employment law expert who withdrew the offer of employment on the grounds that the employee was pregnant.  
She joined us and it immediately became clear her offer not to join us was genuine and she was both professional and reliable.  Her concern had been that she was expecting twins and wasn’t sure how she would cope after the birth. In addition, when the children were born it became clear that they had some health problems and this added to the challenges she was facing.  We discussed what work she was able to do, because by then we knew we had a fantastic employee on our books and we didn’t want to lose her. 
In the end, we agreed she could come in during the afternoon and work until early evening.  The effect was amazing. When the rest of the helpdesk were low on energy and motivation after several hours on the phones, she came in at about 3pm and mopped up all the outstanding jobs that had been left on one side.  Giving helpline advice for 8 hours a day is a pretty stressful job so she gave a lift to the entire workforce. 
Now I know that there are many unsuccessful examples of flexible working arrangements but I would argue that properly arranged it can be a positive experience in most environments, especially the service sector. 
This coupled with the increasingly compelling evidence that part-time workers are more productive than their full-time colleagues makes giving it a try well worth the risk. 
One other factor that convinced me of its value; the staff turnover for full time traditional employees was significantly higher than for staff who worked part time or flexibly.  At a cost of approximately £3000 for each recruitment exercise, that can save a lot of money whilst keeping skilled staff on board. 


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.