Editorial
Problem employees. It’s rarely easy to pick the best person for a job. On the other side of the pond the USA is about it make its latest appointment to the biggest job on the planet. If you were taking on a new employee would you pick Donald or Hilary? What issues might you have if they already worked for you? In this issue we consider that and look at what lessons might be learned.
October normally sees a number of changes to employment law. However this year, possibly because of Brexit some matters have been put on the back burner, for instance regulations relating to the gender pay gap. What effects Brexit will have on employment law still remains to be seen. The House of Commons briefing paper produced on 12 October 2012 is a useful review of the situation.
Meanwhile, Brexit or not usual the minimum wage levels have risen from 1 October, (though not the living wage which only came in in April 2016) see details below. Otherwise there is a reminder to the employers amongst you to make sure you have sorted out pension auto-enrolment.
New Appointment – Donald or Hilary?
Who would you rather have as an employee or work colleague, Mr Trump or Mrs Clinton? Whatever your political views the news stories about both of them suggest that neither may be ideal; but who is? What do we want in a colleague? Efficiency loyalty, camaraderie, honesty, integrity reliability? With years of allegations and counter allegations it’s impossible and frankly tedious to try to analyse all the potential flaws these two may sweep under the table as they present themselves to the biggest job interview panel in the world applying for arguably the world’s most important job.
Experience – Review of skills and track record
So who would you appoint? This is not an application to be an apprentice. Both have years of experience but that also amounts to years of history which can be the problem. We have probably all seen the Barclay’s Bank LifeSkills adverts. Advice to young people to be careful about what they say on social media and what e-mail name they choose; a bad choice can come back to haunt them. Did anyone ever advise Donald and Hilary about these?
Candidate 1 Issues – IT skills and confidentiality understanding
A significant allegation against Mrs Clinton is that she used her home e-mail system to send official and classified communications in violation of State Department protocols and procedures. She had signed a non-disclosure agreement that sensitive material should be handled as classified even if not marked as such. However it’s been suggested that she, Mrs Clinton, wasn’t IT savvy enough to understand how to mark and secure them.
Most employers have (and all should have) e-mail policies, though to be fair most deal with employees not sending personal e-mails on work systems rather than the other way around. Employees aren’t usually keen to clutter up their own systems with work data. However accessing office data from outside is an issue. Today businesses are dependent on IT and many people running businesses have had no training even in recognising the risks and weaknesses. An article in The Atlantic commenting on Mrs Clinton pointed out that she was “unschooled in the rules of classification and not especially concerned about getting trained; but also technologically dependent on aides in the way that many 60-something executives likely are, with little understanding of how the technology they use every day fundamentally works”. I wouldn’t limit it to just those over 60. IT is complicated and just like you need a skilled mechanic to keep a car running you need IT experts to install and maintain a business’s systems.
Needed – IT procedures and Data Protection Policies
However just like a driver has responsibilities to drive safely and do routine maintenance so business owner’s need to review what they do and the processes they follow in relation to IT. While outside attack is a significant risk the greatest weakness may come from within. At one extreme it may be an employee using an obvious password. At the other extreme it may be the disgruntled employee (or fellow director) who is the only one with the admin password, leaving without disclosing it and paralysing the business.
If employees then actually do bring their own devices to work (BYOD) for work purposes employers do need additional rules surrounding security, loss of data and professionalism. It’s a down side for employers wanting to save on providing kit and relying on employees’ enthusiasm for buying the latest devices.
How would an employer feel if it finds that an employee has been failing to keep secure its pricing information, personal details of other staff, new product specifications or expansion plans? Exposure of personal information can lead to data protection breach claims. Rival firms knowing secrets or planned moves can lead to loss of revenue and even failure of the business. Of course when it comes to the world of international politics the stakes are far higher; lives are at risk.
So what would you do with such an employee? Is it gross misconduct? Is it criminal? Should she keep the job, had she been properly trained? Were the right policies in place? Should she get a final written warning? The FBI report on Mrs Clinton produced in July seems to have concluded that she was “very careless” but that no charges should be brought. As with much political scandal the allegations are still there and further enquiries may be underway.
Candidate 2 – Interpersonal skills and discrimination issues
Mr Trump brings a different set of potential employee problems. His attitude and conduct towards women is being questioned and challenged. When it’s in the workplace accusations brought by one employee against another are a nightmare for an employer. Who is telling the truth and even if you establish that, is the conduct acceptable and what do you do about it?
The characters in such situations differ. Employers need to remember that, whether they fit an employer’s stereotype or not, all cases should all be reviewed carefully. Maybe you have a case of an older male employee who’s been with the business a long time and worked his way up to a very senior sales position. Rumours have gone the rounds on and off about how he treats female staff, customers and even those just visiting the building. The allegations start this time with an overheard conversation which is reported to senior management. It’s glossed over; forget it, it’s just old X again with his “locker room talk” (such talk being denied by many athletes who frequent locker rooms). He’s great for business, over the years he’s secured many contracts. Then an outsider raises an allegation, at a sales conference for the industry she says he got her drunk and groped her. Back at the office a young junior shyly or slyly accuses him of coming on to her in the lift.
What does the employer do? Has it turned a blind eye for too long? Will the employer have claims against it for discrimination or even less obvious things? For example employers can be vicariously liable under the “Protection from Harassment Act” originally introduced to provide protection against stalkers.
Needed – Equal Opportunities Guide – Grievance and Discipline Processes
What policies has the employer got in place? Are there clear guidelines about how staff should behave? Most people may feel that it shouldn’t be necessary to point out that this conduct (if true) is not acceptable but it seems that some people think it’s “ok”. With the recent successful appeal by a footballer against a rape conviction the issue of “consent” has been brought to the front page again. Even if deliberate harm isn’t intended misunderstanding can lead to unexpected consequences. For most employers it will never get as far as allegations of rape but remember football clubs are employers. Now many are holding “consent” workshops for their young players to help them exercise better judgement. Similarly many universities have compulsory consent events for all new students in fresher’s week. Knowing how to draw the line and how to recognise it seems essential.
From the ordinary employers point of view the principle is the same. They need to show where they stand and how they expect employees to act or not. It also helps those making the accusations to understand that if they are genuine and honest they will be supported. The employer has made it clear that certain conduct is out of line and provided processes and grievance procedures for complainants to follow.
The potential miscreant then also knows what is expected and the potential consequences. Every employer should have disciplinary and grievance procedures. While the law defines discrimination and harassment, policies which set out the employers position emphasising that this is serious, are valuable and could be vital. Some employers may need additional specific policies, for example guidance on lone working if sales reps visit customers premises alone, perhaps at unsociable times or in less safe or out of the way places. In other cases do staff attend events such as weekend sales conferences where the normal working day might blur into sociable evening entertainment? Employers can be vicariously liable for their employees’ actions if someone is injured in the course of employment. This might extend beyond what many employers might consider normal work situations and there may be a fine line between work and play. Policies can then be particularly important in helping employers stop matters getting out of hand or deal with them if they do.
Allegations can be false; a complainant may have an ulterior motive. Policies can remind employees that there can be consequences if they aren’t genuine. Such a policy can discourage false reports in the first place and act as a reminder to someone not to overegg a genuine issue. Giving an accuser a further copy of the policy and procedure when the grievance is raised, can remind them of this without overtly pointing it out and raising cries of the employer being biased against them.
When an accusation is made the employer needs to deal with it. An employer isn’t the police and if the accusations are of potential criminal activity they need to be involved. But if the accusations are not at that level it’s down to the employer to investigate and act. It’s not always easy, if fact these issues are never easy. Either party may be right or even both to some extent. We can help but it’s likely to be easier to deal with if there are proper policies in place and the employer hasn’t spent months or years ignoring the warning signals.
When it comes to Mr Trump the allegations are out there but so far the only court cases talked of are defamation claims by Mr Trump. More important to him is the view of the national jury, his prospective employer.
Make your mind up time – Clinton or Trump
So on an international scale who’s going to get the job? I wouldn’t like to predict; pollsters haven’t been too successful so far this year. On a local scale? Well there are potential problems out there for employers whether it’s from publication or loss of data, allegations between employees or a whole host of other things. You can’t guarantee that there will never be a problem you just have to takes appropriate steps to be prepared.
Minimum Wage. New Rates from 1 October 2016
| Worker | Old rate £ | New rate £ |
| 16-17 (past compulsory school leaving age) | 3.87 | 4.00 |
| 18-20 | 5.30 | 5.55 |
| 21-24 | 6.70 | 6.95 |
| 25 plus | 7.20 | 7.20 (stays the same) |
| 1st year apprentice or under 19 | 3.30 | 3.40 |
| Apprentice after 1st year and over 19 paid based on age |
Pension- Auto enrolment
It’s nearly a year since “Workie” the government’s multi coloured pension monster first appeared in television adverts. Workie is not an identifiable type of creature. Maybe the idea was to highlight that the new pension rules will also cover many people who you might not easily be identified as worker for pension purposes. Therefore it’s important for anyone who pays someone to work for them to check out whether the new rules apply to them.
Secondly this isn’t something you should sort out at the last minute. For most small employers they will have already been given a staging date or, if no exceptions apply, it will be 1 April 2017. Therefore time is running out.
All employers even those with one employee will need a pension scheme; either a new scheme or an old one which fits the required criteria. Small employers should remember that not all the big players in the pension market will be interested in offering them a scheme. On the other hand just letting employees fall into the default providers schemes may not be in the employees’ interests or the employers. Employers do have a duty to consider what is appropriate for their staff.
So what do you do? Take a look at the Pension Regulators website and talk to your accountant or own independent financial advisor now. Delay could mean you have fewer options and higher costs.
| Edit 45. This newsletter looks at new cases and employment related matters, which are likely to be of interest to many. However specialist advice should be obtained before taking or refraining from taking action based on comments in this newsletter, which is only intended as a brief note. For more information or if you have specific concerns phone me on 01233 714055 or e-mail.kirsten@moon-and-co.co.uk. To unsubscribe to our newsletters e-mail kirsten@moon-and-co.co.uk |