Mark Serby, Head of Employment Law at Wake Smith in Sheffield looks at issues facing employers thirty years ago and today and poses the question: how much have times changed?
Thirty years ago, the country was covered in a blanket of thick snow, the UK was in recession, strike action was taking place across the country and Thatcher was in the news. Are things so very different now?
Employment law, I am pleased to say has moved on a great deal since the late seventies. So too have employee relations, generally. This week however, the country seems to have slipped back 30 years, having entered a strange hole in time and emerged in those dark days of 1979.
A snowball effect
For employers, there are some important lessons to be learnt and some potential pitfalls to avoid. The immediate issue has been the snow that has brought the country to an almost crippling stand-still over the past week. Employers have been plagued by the absence of employees who are unable to physically get to work or who have been caught out by closed schools or public transport problems. What the reasonable employer will do and what employers are entitled to do may be two very different things, but it is for every employer to consider its position and stick to it, evenly and fairly across the whole of the workforce. It might be that absence is treated as unpaid leave, to be taken as holiday or that the hours are to be made up over the course of the following weeks or months. What employers should not do is make assumptions without investigation on an individual basis or treat employees differently from one scenario to another.
Striking action
The European debate has re-opened, this time around culminating in "wildcat" strike actions across the country. Thirty years ago, James Callaghan, the then Prime Minister was vehemently defending his position and proclaiming that the country was not in chaos. Strikes across public bodies, from dustmen to ambulance drivers threw the country into misadministration; striking lorry drivers brought the industry to a crippling standstill and strikes and marches were attracting support and headlines in the major capitals.
The wildcat strikes at refineries and power stations, colleges and universities and numerous sympathy protests across the country have again attracted the headlines, vying for front page space with the unusually wintery conditions. Employment relations between employers, employees and trade unions are frequently susceptible to breakdowns. The needs of a business don't always sit comfortably aside the expectations of employees. Some obligations are governed by legislation, some rights are protected, but the striking employees in Immingham have taken issue with 90 foreign employees who have been brought in by an Italian contractor. The conclusion appears to be that a further 102 jobs have been created for British workers with no foreign employees losing their employment. The logic behind this is unclear, but at a time when unemployment is on the rise, 102 extra jobs has got to be a good thing - even if those jobs eventually turn out to be short-term.
From a number of news reports, viewers might be mistaken into thinking that the unofficial refinery strikes were really about the number of workers coming into this country from within Europe. The freedom of movement across member states is protected under EU law. Despite the numbers of foreign workers in the UK easily outnumbering the number of British workers working outside of the UK, we need to remember that immigration and labour within the EU is still a two-way street. Employers must ensure that however high temperatures may rise, racism and any form of discrimination must not be tolerated in the workplace.
Thatcher: then and now
And so it is that there is once again a Thatcher in the news. This time it is the turn of Carol. The "leaks" that led to Thatcher Jr being fired from her roving reporter duties on BBC's primetime One Show revolved around her childhood recollections of the Robertson's "golliwog" and its resemblance to an unnamed Tennis star. All of this took place off camera, perhaps in the company of several journalists and co-presenters. Several headlines further down the line it seems the leaks referred to may not have happened, the initial racism slur has been considerably diluted and the real issue is over the mixed messages the BBC is sending. With its multi-million pound star Jonathan Ross back on the screen following his well documented fall from grace and 12 week suspension, has Auntie been too quick to judge Ms Thatcher and has it used the same yardstick?
As with any disciplinary matter, the key to avoiding future claims is procedure and investigation. Unfortunately for the Beeb, the public are often baying for blood but are rarely fully aware of all the facts. A little information, we all know, is a dangerous thing. Let's hope that the BBC hasn't been too hasty and that it has followed the 3-step procedure otherwise the nest headlines will be instigated by Carol followed by a very public Employment Tribunal hearing.
The 'R' word
And finally to the recession. With unemployment expected to exceed 3 million by the end of the year it is no surprise that employment lawyers are becoming well rehearsed in redundancy procedures and the intricacies of lay-offs and short-time working. What employers may not account for are the hidden costs of redundancy and the consideration they should give to ways to avoid it.
It has been estimated that the 'real' cost of redundancy can be more than £16,000 per employee. This takes into account minimum statutory payments including notice and redundancy pay, together with time spent in consultation, resources devoted to the same and costs of recruitment, retraining and retention once the economic upturn arrives. So it may be time well spent considering where it is best to focus what money is available and plan for the future. There are some key opportunities to conserve funds without resorting to cutting employees in the first instance, two examples of which are lay-off and short-time working. Some other alternatives, such as limiting the use and availability of overtime and curtailing the use of temporary staff will not even require any contractual changes. However, other cost-reducing measures do require contractual changes and this is a minefield of procedure which every employer must ensure they get right from the start.
Varying terms of employment, whether that be changing hours, pay structures, benefits or places of work, will often be a fundamental variation requiring, wherever possible, the written agreement of both employer and employee. Where an agreement cannot be reached, some difficult decision may have to be made. A unilateral variation to fundamental terms of employment in the most extreme cases can lead to claims of unfair dismissal, a loss of experienced and valued employees and the inevitable damage to morale.
Consultation is key. Honesty in employee meetings can often pay dividends. There are daily news reports of economic doom and gloom and employees, as a rule, would prefer some job security over joining the back of an expending unemployment line. With gentle persuasion, your employees will stand by you through the dark times, so long as they also benefit during the boom.
So, 30 years on, have things really changed? The outlook may be bleak, but there may be a new government on the way, another technological revolution to change the way we communicate and, once again, some warm and happy summers.
For further information please contact Mark Serby at [email protected] or on 01142666660.
