In 2005 the former Equal Opportunities Commission (now the Equalities and Human Rights Commission) conducted a formal investigation into pregnancy discrimination. Their final report found that the main areas of unfair treatment during pregnancy were denial of a pay increase, refusal of promotion, having to take lower-paid work, being excluded from training and refusal of time-off for ante-natal care.
The Equality Act 2010 introduced protection from discrimination related to pregnancy and maternity leave. To show discrimination a woman does not have to compare herself to how a man might have been treated. She must show that ‘but for’ her pregnancy she would not have been dismissed or treated less favourably. All employees, casual workers, agency workers, freelancers and self-employed women are protected by sex discrimination law from day one of their employment. Employees are also protected from detriment or dismissal on the grounds of pregnancy or maternity leave in accordance with the Employment Rights Act 1996 and Maternity and Parental Leave etc Regulations 1999.
An employer must not:
Treat a pregnant woman less favourably for a reason related to her
pregnancy, pregnancy related absence or absence on maternity leave. It is
discrimination to dismiss, make redundant or otherwise treat her less favourably,
eg in relation to a pay rise, promotion, training;
Select a woman for redundancy for a reason related to her pregnancy, the consequences
of her pregnancy or absence on maternity leave;
Select a woman for redundancy because she is working part-time or flexibly unless there
are very good objective reasons;
Treat a pregnant woman less favourably because of pregnancy related absence
Women who are pregnant or on maternity leave also have the right to health and safety protection and the right to reasonable paid time off for ante natal care along with 52 weeks maternity leave and maternity benefits if the woman qualifies.
However despite the steady stream of legislation to protect women’s rights in this area, it seems things have not changed. According to a recent report conducted by Working Families, pregnant women continue to be discriminated against. With the economic downturn has come a rise in the number of calls to the organisation from women facing maternity or pregnancy discrimination such as:
being singled out for redundancy
not being offered suitable alternative employment as part of the redundancy procedure, being dismissed from employment on the day they inform their employer of their pregnancy, or very soon after,
being selected for redundancy with the suggestion that pregnancy is the reason,
wishing return to work part time but have to leave employment instead because their employer refuses to allow them to work part time
finding their jobs have gone on returning from maternity leave
One woman contacted the organisation who was 28 weeks pregnant and was told she would be made redundant the next month. She was the only one of seven staff to be selected for redundancy and was given no reasons why. When asked why she thought she had been selected she said “My employer doesn’t want to pay SMP” (Maternity pay).
Another organisation, Maternity Action, have reported that pregnant women or those on maternity leave have been given no reason why they have been selected for redundancy or were given reasons that were tantamount to discrimination such as preferring full time employees. Others were not offered health and safety protection during pregnancy or maternity leave.
A recent high profile employment tribunal case further highlights the issues. A female employee of the company that was the first employer of the Duchess of Cambridge, alleged that when she told her male boss that she was pregnant for the third time in three years, she was told “it really isn’t ideal.” Furthermore she alleged she was “vetoed” for the position of chief financial officer on the same day she announced her pregnancy. She claimed sex discrimination, unfair dismissal and discrimination on the grounds of maternity.
Alan Sugar, the influential business leader, has publicly commented that he feels maternity laws have gone too far, which does not help matters.
However protecting women who are pregnant or on maternity leave encourages women’s participation in the workplace and adds to diversity and the talent pool – it therefore makes good business sense. Discrimination exposes employers to the threat of legal action with unlimited compensation in an employment tribunal as well as the risk of a damaged reputation.
Effective HR is vital to the successful running of any business, as an independent HR consultant advising small businesses, I should know. As well as the HR processes of managing payroll and holiday allocation there is recruitment, performance management, grievance and disciplinary, dismissal, sickness absence, maternity and family friendly processes, payroll and holidays.
All processes that relate to staff management should be supported by robust paperwork. Employees should be given an employment contract within eight weeks of commencing employment ideally coupled with an employee handbook that contains lots of policies providing guidance on employment procedures within the business. Everyone should have a regular payslip.
The employee handbook should be the “bible” in how things are done in the management of employees. If closely followed, the procedures offer protection against costly employment tribunal compensation.
For example, a procedure for managing sickness absence improves efficiency by providing clear guidance on holding meetings, undertaking investigations, monitoring and ultimately making a final decision on dismissal if things do not improve. Managing sickness absence can be costly and time consuming if not handled well and without a procedure. Similar guidance for managing poor performance is essential as most small businesses can ill afford to put up with its negative impact on productivity.
Grievance and disciplinary situations need to be carried out quickly to avoid low morale setting in, which can indirectly affect profits. Efficient recruitment provides quality staff, which can make a business successful and profitable and should follow a written down structured procedure that will avoid discrimination. Effective redundancy procedures ensure efficient downsizing cuts costs quickly yet within the confines of employment law.
If HR has a strategic focus, it can help to support the business’s long term aims and encourage efficiency.
Efficient HR processes can save a small business time and money helping to support demonstrable growth and profits.
According to a recent CIPD report the vast majority of employers offer some form of flexible working which can include part time working, term time working, job sharing, flexitime, annual hours, working from home, mobile/tele working and career breaks.
The term flexible working describes a working arrangement that has some degree of flexibility on how long, where and when employees work. However, it is reported that only 63% provide the right to request flexible working requests, yet in accordance with the Families and Work Act 2007 they are required by law. Working at home is the most commonly offered option. Large organisations are more likely to be able to accommodate requests compared to SMEs and flexible working is more common in the public sector. Women are more likely to use flexible working compared to men with most taking up part time hours.
Some factors contributing to the increased interest in the use of flexible working include:
Its potential value as a recruitment and retention tool in a tight labour market.
The changing profile of the workforce (for example, with more women in the labour market and an ageing population it is increasingly common for workers to have caring responsibilities outside the workplace).
Advances in technology (facilitating, for example, remote working and hot desking arrangements).
An increasing need for businesses to be able to deliver services to customers on a 24/7 basis.
The economic situation – some organisations have offered part-time working or sabbaticals as a method of avoiding or minimising redundancies.
The increased demand for an effective work-life balance.
The benefits of flexible working can be much improved organisational performance, however, there can be barriers to its implementation. The main one appears to be operational pressures. Other barriers that feature highly are a need to maintain customer/service requirements, inability to effectively manage flexible workers, existing organisational culture and the attitudes of senior managers. It appears there are more barriers for larger organisations than micro businesses. The biggest obstacles can be the nature of the work and little relevance to the work.
When making a flexible working request an employer may refuse it for a business-related reason which includes:
the burden of additional costs
detrimental effect on the ability to meet customer demand
the inability to reorganise work among existing staff
the inability to recruit additional staff
where it will have a detrimental impact on quality and performance.
Having a flexible working request refused can be quite a shock to those who put in a request so employers should consider how to effectively communicate and implement flexible working. The following tips may help:
Establish a clear process for how flexible working works in the organisation.
Ensure that there are clear roles and responsibilities for employees, line managers and HR.
Assess the current levels of support offered to line managers and ensure it is sufficient.
Invest in ongoing communication and awareness raising.
Assess how conducive the organisation culture is to flexible working – and take action accordingly.
Make use of pilots (when introducing new initiatives) and trial periods (for individual flexible working arrangements) in order to highlight potential problems with flexible working arrangements.
Build in opportunities and mechanisms to monitor and evaluate progress with flexible working.
In addition, by providing a flexible working information pack that is given to employees containing lots of useful information on the process, provides further useful written communication. The pack should contain a flexible working application form that allows the employee to describe the existing working pattern, the proposed changes, the impact the change would have on the role, workplace and colleagues with suggestions of how the impact could be dealt with. This allows the employee to think through the implications for their request and to possibly overcome any rejection.
In 2014 the government plans to extend flexible working practices to everyone and is currently consulting on this, therefore, it is really important, that employers get their act together and look at effective implementation as it is a powerful tool for staff commitment and retention.
Today, 21 March, is Eliminate Racial Discrimination Day. The United Nations’ (UN) International Day for the Elimination of Racial Discrimination is observed with a series of events and activities worldwide on March 21 each year. The day aims to remind people of racial discrimination’s negative consequences. It also encourages people to remember their obligation and determination to combat racial discrimination.
Racial discrimination is an unpleasant activity that can take many forms.
This occurs when someone is treated less favourably because of racial reasons. colour, nationality, ethnic or national origin. eg racist abuse or excluding someone because of their race or colour etc.
This occurs when someone is treated less favourably because of criteria that is imposed in relation to race/colour/nationality that can not be objectively justified eg a shop that insists on female workers wear a skirt and overall. Muslim women must cover their legs and can not comply with such a condition.
A person harasses another on grounds of race or ethnic or national origins when he or she engages in unwanted conduct that has the purpose or effect of violating the other person’s dignity or creating an intimidating/hostile, degrading, humiliating or offensive environment.
This occurs with unfair treatment of an employee who has made a complaint of race discrimination.
In the UK all of the above are unlawful in accordance with the Equality Act 2010. Employers should have an equal opportunities policy in place, training for managers and employees and monitoring processes to ensure compliance.
Employees who feel they have been discriminated against may complain in an employment tribunal.
Reflecting on the many HR issues I have helped my clients with I have noticed a common theme of basic mistakes many employers make. They are quite simple to put right, but can be costly if they are ignored.
1) Not issuing an employment contract and employee handbook
Many businesses that employ staff still fail to provide employment terms and conditions within eight weeks of a new employee starting in accordance with the Employment Rights Act 1996. A contract (employment terms and conditions) can contain basic policies such as grievance and discipline so an employee handbook may not always be necessary if there are only one or two members of staff. However if there are five or more employees it might be a good idea to develop a small employee handbook to provide guidance on various HR procedures. It is important to remember that if an employer ends up in an employment tribunal and has not issued a contract then should the employee win their case an award can be made of up to four weeks pay for the lack of this document.
2) Not undertaking a thorough investigation
With many HR issues it is really important to do a thorough investigation to avoid a miscarriage of justice further down the line. An investigation may be necessary in relation to disciplinary matters, capability, bullying & harassment and sickness absence. An investigation should uncover the full facts that will inform a decision of whether to take action against the employee or not. If an employer has dismissed an employee for gross misconduct without undertaking a full investigation they could end up losing an employment tribunal.
3) Failing to take action with bullying and harassment
Let’s face it dealing with bullying and harassment in the workplace is not pleasant and many employers turn a blind eye to the plight of employees who speak of being bullied and harassed. If an employer does not ignore the problem, many pay lip service to undertaking a full investigation and dealing with any perpetrator. Whilst bullying per se can not be pursued in an employment tribunal, employers need to be aware that if the harassment can be pinned on a protected characteristic and proven in an employment tribunal, an employer may lose their case.
4) Failing to manage poor performance
This is another issue that employers tend to shy away from. Perhaps it is because they would prefer not to sit down with the employee and speak about the performance issues face to face and they fear possible conflict. Us British are not very comfortable with delivering bad news. However, poor performance is a financial cost to businesses – direct costs are loss of productivity and profit and indirect costs of morale of those employees who watch the poor performer not being dealt with.
5) Failing to manage sickness absence
Intermittent or long term sickness absence is not easy to deal with. With intermittent absence it is important to watch out for trends eg Monday/Friday syndrome and nip things in the bud before they get out of hand by having an informal conversation to begin with about the problem. With long term absence many employers don’t think they can intervene when their employee sends in a sick note that means they will be off for weeks. However it is important to deal with the situation as soon as possible by meeting with the employee to find out what is happening. After all an employee is being paid to come to work so an employer needs to know the prognosis for the future and how quickly they will return to work, if at all. They may need the support of an occupational health advisor preparing a report that will help an employer manage the situation. Research shows that the longer an employee is allowed to remain on long term sick without it being dealt with the longer they will be absent. If an employee is off so long they eventually exhaust sick pay an employer may consider termination.
6) Failing to manage a disciplinary situation
Disciplinary situations in the workplace can range from misconduct to gross misconduct, but nevertheless need to handled and quickly. If the situation is gross misconduct, then the employee may need to be suspended to get them out the workplace, prevent any conflict or further wrong doing. A thorough investigation should then be completed as quickly as possible followed by a fair hearing allowing the employee to have their say with the right to a companion. The outcome should be confirmed in writing with the right to appeal. The disciplinary situation needs to be fair and reasonable to avoid a compensation award in an employment tribunal.
7) Not consulting in relation to a redundancy situation
Consulting about redundancy is part of the legal process and consultation should be meaningful. The number of staff at risk of redundancy will dictate how long the consultation period should be. From April 2013 if there 100+ staff the consultation period shall be 45 days. With 20-99 staff the consultation period is 30 days and less than 20 employees there is no set time frame. However with the latter the consultation period needs to be reasonable and I would advise that at least a week is provided between the last consultation meeting and notification of dismissal depending on the number of staff to be consulted with. Failing to consult will attract a protective award in an employment tribunal.
The Catholic church has just announced the name of the new Pope, Pope Francis. As he starts in his new job perhaps consideration might be given to providing him with a good induction procedure so that he can familiarise himself with his new workplace using a variety of methods.
Induction is an important process following on from recruitment and needs to be effective to avoid the “induction crisis” which is where employees do not feel comfortable with their new surroundings and decide to leave which incurs another recruitment cost for the organisation. In recent years the term “onboarding” has crept into the language of HR and is a US term for the induction process.
The length of the induction period and methods used to provide information to the new employee will vary depending on the size and nature of the organisation and the role. However it is really important that all organisations have a well thought out induction programme. This may need to be tailored for certain members of staff, however, eg promoted staff – such as Pope Francis, graduate trainees, senior appointments, technical specialists, temporary staff, job sharers etc.
Without a good induction programme certain problems may arise – poor integration into team, low morale, loss of productivity, failure to reach potential none of which are acceptable and damaging to the business.
Various members of staff could be involved in the process. The line manager is very important as they will manage the employee on a day to day basis. An HR representative, if appropriate, could ensure that certain admin duties are performed eg bank details are collected and the employee knows what to expect from induction. The health and safety officer may explain health and safety issues appropriate to the workplace. With large organisations often senior management do a presentation to groups of new starters on the organisation, its history, mission, values and structure. The training officer will outline any training activities that will take place. There may be union representatives that meet with the new employee if the organisation is unionised. Also there could be a “buddy”, an existing employee, who is assigned to provide the new employee with informal information about the company to help them settle in.
A good induction programme contains the following elements:
a clear outline of the job/rolerequirements
explanation of terms and conditions
orientation (physical) – describing where the facilities are
orientation (organisational) – showing how the employee fits into the team and how their role fits with the organisation’s strategy and goals
an awareness of other functions within the organisation, and how the employee fits within that
meeting with key senior employees (either face to face or through the use of technology)
health and safety information – this is a legal requirement
details of the organisation’s history, its culture and values, and its products and services.
The process should be conducted gradually over a reasonable period of time trying to avoid “information overload”.
Ideally there should be an induction checklist drawn up that covers all the areas that a new employee needs to know about indicating which staff member will be responsible for each area. It can then be signed off once each area is completed then held on the employee’s personnel file.
Hopefully, the new Pope will quickly settle into his new role with a well thought through induction procedure. www.sjbealerhconsult.co.uk
A recent newspaper article http://www.bbc.co.uk/news/uk-wales-21753342 wrote about a project manager, Paul Marshallsea, who came home from a trip to Australia to read in a letter that he had been sacked by the charity, Pant and Dowlais Boys and Girls Club, for which he had worked for ten years.
Apparently he had been seen on TV saving some children from a shark attack – deemed to be a hero. However, whilst doing this he was, at the time, on sick leave from his job. The charity stated that they had lost all confidence in him. Whilst the charity may have done so, the action they have taken could lead to legal recriminations in an employment tribunal and they should have thought twice before taking such hasty action.
When suspecting an employee of misconduct or gross misconduct it is important to undertake an investigation first. In this instance the charity should have invited the employee by letter to a disciplinary hearing with the right to a companion. During the hearing the charity should have given him time to explain the situation faced with the video evidence of his trip to Australia, this would be part of the investigation process.
The cause of his sickness absence was stress. An employee off with stress does not necessarily have to sit at home feeling sorry for themselves. Sometimes on doctor’s advice they are encouraged to have a change of scenery and what a change of scenery Australia is when the UK is in the depths of winter. As part of the investigation into the situation the charity should have gained medical evidence from the employee’s GP or more preferably, an independent occupational advisor to establish whether the trip was part of a recuperation plan.
The hearing should have adjourned pending the receipt of medical information to inform the situation along with consideration of the facts provided by the employee of his conduct.
Only then should the charity have communicated their decision in writing being sure that they were making the right decision having analysed the facts, to him providing the right to an appeal against dismissal.
This procedure follows the ACAS Code of Practice and an employee at risk of dismissal is owed the basic right to explain his actions and have them investigated to avoid any potential miscarriage of justice.
By acting in haste, the charity may come to rue the decision it took in January to dismiss by letter. The price of its reputation with this now high profile news item may be too much. That is without any unfair dismissal compensation should Mr Marshallsea and his wife pursue an employment tribunal claim and win…..
11-15 March 2013 is National Apprentice week. It is the time when all eyes are on apprenticeships and it’s all about raising the profile amongst employers, individuals, teachers, parents and the media.
Apprentices earn a wage and work alongside experienced staff to gain job specific skills and nationally recognised qualifications. Established sectors are manufacturing, construction and engineering however the fastest growing areas in recent years have been IT, childcare, accountancy, health and retail. An apprentice can take between one and four years to complete and is fully funded by the government. Apprentices are good for business. They bring productive enthusiastic people into an organisation and demonstrate an organisation’s commitment to investing in young people. Furthermore apprentices will be the workforce of the future so it is essential to start investing now.
Over 100,000 employers offer apprenticeships in England, however the government has plans to increase this number and is setting aside funding whereby small businesses will be paid £1500 to take on an apprentice. However, it will be important that the young people are provided a structured programme of education to ensure this initiative is a success.
The UK is plagued by youth unemployment which is a potential ticking time bomb for the future if not addressed. In the UK youth employment is around 22% and increasing all the time. Young people who have been unemployed for a long time will earn less throughout their lives. They will be less unemployable as they won’t have the skills business needs. They are more likely to have long term health problems as well. So hopefully a growth in apprenticeships will help to solve this ever increasing problem to benefit the both young people and the UK economy at the same time.
Today, 8 March, is International Womens Day where women and their achievements are celebrated all over the world. It has been observed since the early 1900s annually with lots of events taking place – political rallies, business conferences, government activitie and networking events that inspire women. The battle for emancipation and equality began in the early 1900s and us women have come a long way since then with female astronauts and prime ministers. Women are accepted in all walks of life, they can choose to go to university, work and have a family at at the same time.
Today there are more women in the boardroom, greater equality with legislative rights and women visible as impressive role models everywhere. However, women are still not paid equally to that of men despite the introduction of the Equal Pay Act in 1970 and globally women’s education, health and violence against them is worse than that of men. Furthermore we still have a long way to go to smash the infamous glass ceiling that continues to exist in the UK.
A recent report published by Counting Women In entitled Sex and Power: Who Runs Britain claims that women’s grip on positions of power in politics and public life is slipping away. It has covered evidence that women are losing representation across politics, the judiciary, police, media and other areas. In the police 90 percent of police constables and police crime commissioners are men; 2/3 of local councillors are male.
Other statistics show:
· UK women have slipped from 33rd to 57th place since 2001 in international power rankings
· 22.5% of MPs are women
· 17.4% of the Cabinet are women
· 11.1% of UK bank CEOs are women
· 5% of Editors of national daily newspapers are women
Apparently France has the greatest number of women board directors. There representation has been boosted by quota legisation. This has also vastly improved women board representation in Norway, Spain, the Netherlands, Iceland, Italy and Belgium.
Other countries use other systems to raise the number of board seats. Finland introduced gender and board diversity in its corporate governance code.
However China, the United States and Japan do not have proactive strategies and have the lowest percentage increase in women board members.
A European draft directive is calling for a minimum 40% female non executive directors on the boards of listed companies with 250 or more employees by 2020. Currently 85% of European non-exec board members and 91% of executive board members are men.
However, the UK is opposed to using quotas claiming that diversity is improving of its own accord. Ministers have called upon firms to aim to have one woman director for every three man by 2015.
So women in the UK please celebrate International Women’s Day. Do your bit to ensure that the future for girls is bright, equal, safe and rewarding.
Make a difference!