Employee self-defence

Employee self-defence

I have been meaning to write an “employee self defence” manual for a while now, and something came across my desk today to remind me of this ambition. Here’s mine off the top of my head.

  • Always reply to management in writing and in good time.
  • Know where your contract is, make a good .pdf copy of it and keep a copy of any variations particularly if you work for a business unit that has been subject to a TUPE agreement, you’d be surprised how careless some managements can be in keeping good records. If you opt out of the working time directive or refuse to, keep a record.
  • While contracts can be varied unilaterally i.e. imposed, it depends on the wording of the original contract, if you object to the changes, let management know in writing, it can’t stop it but it may be relevant for future grievances or disciplinary processes.
  • Keep a contemporaneous diary and keep it off your employer’s IT; they can deny it to you when you need it or worse, amend the record.
  • See your Doctor when needed and take their advice, don’t make them look a fool. If signed off sick, make sure your appropriate management know and they have the appropriate documentation.
  • Tell your management if you are disabled or chronically sick, they won’t make reasonable adjustments unless they do.
  • Know your grievance and whistle blowing policy so you know who to talk to when you need it.
  • If you think it’s a grievance, lodge it, the least that will happen is that your case is in writing, actually shit managements might retaliate but your case is in writing and if they’re bad, it’ll only get worse anyway.
  • Know the IT use and record management policy of your employer; don’t break them and complain if others try and get you to do so too, by for instance, using personal phones or emails and whatsapp or twitter to discuss work matters. If an employee, don’t use your own phone for any work business; they have a duty to provide one if you need it for work.

That’s it for the moment but I know there’s more. …

Workers rights for Maternity and the EU

Workers rights for Maternity and the EU

This article is a quote from the TUC’s “UK employment rights and the EU“, it relates to maternity rights and the EU acquis.

The EU Pregnant Workers Directive 1992 led to substantial improvements in the health and safety protections for expectant and new mothers in the workplace. It gave women paid time off for ante-natal appointments and placed duties on employers to assess risks and to adjust working conditions, transfer a pregnant or breastfeeding worker to alternative work or suspend them on paid leave where harm is identified.

While the maternity leave entitlement in the UK already exceeded the EU minimum of 14 weeks when the Directive was implemented, case law from the ECJ has had a positive impact in tackling the disadvantage and discrimination that many women face in the workplace when they become mothers. For example, it made clear that treating a women unfavourably because of pregnancy or maternity leave was direct sex discrimination and that it was not necessary to identify a non-pregnant comparator in similar circumstances to prove discrimination. This ended years of women potentially being defeated in discrimination claims because the employer argued that they would have treated a man who had to take a substantial period out of the workplace in a similar way.

Sex discrimination law in the UK was amended to create a separate category of pregnancy discrimination, which is now defined as unfavourable treatment because of pregnancy or maternity leave in the Equality Act 2010 with no need for any comparison with a non-pregnant employee. This change in UK law was achieved following a case taken against the UK government by the old Equal Opportunities Commission relying on EU law.

ECJ case law has also extended protection from dismissal on grounds of pregnancy or maternity leave to fixed-term workers. And, since 2008, women on additional maternity leave have had access to the same contractual rights as women on ordinary maternity leave as a result of ECJ case law. This means, for example, that employers are obliged to make contributions into occupational pension schemes for longer than the first 26 weeks of leave.

ooOOOoo …

Brexit and workers rights

Brexit and workers rights

Is EU employment protection laws better than the UK’s? Here’s the TUC, and here’s the Institute of employment rights.

The IER says,

Brexit is forever, and an honest appreciation of history should alert us to the dangers, just as optimism about a Labour government should temper our concerns. It is worth noting that UK labour standards tend to be more robust – and more or less on a par with European standards – in those areas presided by EU labour law instruments (e.g. working time, equality law, business restructuring). Whereas they tend to fall below European standards in areas such as unfair dismissal where, as noted in 2011 by the Beecroft report ‘[t]here is no EU concept of “unfair” non-discriminatory dismissal, so there are no other EU constraints on what the UK can do in this area’

i.e. so much for the power of the organised working class, and interested in what they say about unfair dismissal as it’s underwritten by an article in the Charter of Fundamental Rights yet protection seems weaker, primarily because the UK requires workers to have two years longevity but this is important evidence that the employee rights are stronger where there’s EU Law as is the case for working hours, equalities and health & safety.

They conclude,

… we provide an account of the constitutional foundations of European labour rights in the United Kingdom, as well as the extent to which British labour law is informed by mandatory European standards. It is unquestionably the case that without the EU influence, British labour law textbooks would be very much thinner, lighter and cheaper.

The IER concludes by pointing out that the Govt. proposals now avoid the commitment to keep a level playing field on worker’s rights and that the need to sign an FTA with the USA will be a driving force to weakening these rights.

The TUC document says,

“There has been some recent concern that the European Commission’s social policy agenda has become increasingly restricted. For example, recent European Court of Justice (ECJ) cases have limited the ability of unions to organise industrial action in cross-border disputes, and in some Eurozone countries the Commission has actively undermined sector-wide collective bargaining agreements.

However, set against these concerns are the significant employment rights gains that continue to accrue to UK workers as a result of our EU membership. These are wide ranging in scope, including access to paid annual holidays, improved health and safety protection, rights to unpaid parental leave, rights to time off work for urgent family reasons, equal treatment rights for part-time, fixed-term and agency workers, rights for outsourced workers, and rights for workers’ representatives to receive information and be consulted, particularly in the context of restructuring.

They conclude

“While recent EU-led improvements in employment protection have been more limited than in the past, and some EU activities have served to reduce the existing settlement, the overall contribution of EU employment rights to the UK workforce is substantial. The gains UK workers achieve as a result of our membership of the EU include improved access to paid annual holidays, improved health and safety provision, rights to unpaid parental leave, rights to time off work for urgent family reasons, equal treatment rights for part-time, fixed-term and agency workers, rights for outsourced workers, information and consultation and significant health and safety protection. Given these benefits we conclude that EU membership continues to deliver wide-ranging protections to UK workers. Furthermore, evidence also suggests that in the years ahead, remaining in the European Union may provide significant opportunities to extend employment protections for working people.

The conclusion is obvious. …

Employment protection & Johnson’s deal

On Johnson’s deal with respect to workers rights, the current withdrawal agreement unlike previous one’s makes no commitment to maintain those rights, i.e. those commitments have been removed. The TUC opposes the agreement, particularly on Worker’s Rights but also on its general crapness.

The current fear from some, is that Johnson will get his deal approved by parliament, thus negating/satisfying the Benn Act and then fail to bring the implementation legislation, written but secret, as are the legal text and impact analyses to Parliament and thus crash out on 31st with no deal. Much of the social protection legislation is implemented by SI and would be jeopardised by this manoeuvre i.e. the Law that mandates these rights is EU law.

Lexiters should also note that the withdrawal agreement maintains the state aid restrictions and there will be no Article 50 escape clause. Even Costas Lapavitsas is pointing at these flaws. Any agreement will be a treaty which to exit, would be under WTO treaty terms or the Treaty of Vienna. So much for bringing back control and freeing the country to pursue a socialist programme. …

Zero day right to justice

Jeremy Corbyn and Laura Pidcock made speeches to the TUC which covered the Party’s commitment to fairness at work. They commit to a worker’s protection agency to enforce the minimum wage and the necessary ban on zero hour contracts.  To these two critical reforms the need to reduce the employment service qualification for access to Employment Tribunals should be added.

I have made a proposal to Labour’s Policy Forum to this effect, although I might be a bit moderate in that I suggest a 3 month period where others are asking for Day Zero. Absolutely, the 2017 manifesto was to implement Day 1 rights as it should be. You can login and vote it up if you like. …

Bosses & CCTV

I wrote a piece on my linkedin blog called, “Reusing CCTV in employee relations“. I rang the ICO and was told that employers can reuse CCTV, “if they come across something they cannot reasonably ignore”. The linkedin article looks at the ramifications of this and points to the ICO document, “the employment practices code“, which states that cameras may not be covert and may not be used for general monitoring. …

The Right to Work

At the Tory Party conference, the Chancellor, George Osborne proposes legislation that will allow employers to “buy” employment protection rights in exchange for shares.

Better read and experienced economists than I are writing about how the threat of dismissal will lead to talent leaving; it’s always the confident and good that go first. The Trade Unions are also quick to comment. I just want to mention four points which might otherwise be missed.

Will the difference in treatment between the very highly paid and those less well paid remain? At the moment, senior staff required to leave, sign a compromise agreement and walk into their next job laughing all the way to bank? I can’t see Osborne having made life more difficult for these people, and the preferential treatment of senior staff is an act of collusion between the Boards, the CxO and the remuneration committees. Empowering management is not going to change any of that. The fact is that one company’s board of directors, is another company’s remuneration committee is part of the problem of massive overpayment to CEOs.

I can’t see a small company wanting to dilute its shareholding, and most small companies are not quoted on an exchange i.e. they have no value! Furthermore, where small, particularly patron run companies pay significant dividend payments for tax efficiency purposes, they’ll now have to share these dividend payments with their workers. Those companies whose initial and second stage growth are funded by venture capitalists will also not want their ownership stakes diluted in this way.  Large companies don’t on the whole want to behave unfairly, its the redundancy commitments they don’t want to meet, although it seems that redundancy rights are included in what’s being “bought”. However, large companies have other strategies for the avoidance of paying for employment rights. Large companies avoid redundancy and other rights by outsourcing and employing contractors.

The attitude of both sides of this deal will depend upon if the employer is a succeeding or failing company. As suggested above a succeeding or growing company is unlikely to want to dilute its shareholding or share the dividend payments and needs to be a quoted company or will need a public offering plan to make their shares of interest to employees; but a succeeding company may be able to make this work. A failing or even a stagnant company which may be more likely to want such a deal will be much less attractive to the employees. If a stagnant or failing company is quoted, the risk on the value of the shares is high. i.e the sale price of the employee rights is uncertain, because the likely direction of the share price is downwards. In a failing company, this is a deeply unattractive deal. Also it is in the case of failing companies, that the opportunity to dismiss people for individual performance related causes, rather than undertake redundancy programmes becomes more likely; although on reading the speech, Osborne also plans to allow companies to shirk their redundancy commitments, so there’s no need.

In the Guardian article, John Cridland, director general of the Confederation of British Industry, is quoted as saying,

“In some of Britain’s cutting-edge entrepreneurial companies, the option of share ownership may be attractive to workers, rather than some of their employment rights. But I think this is a niche idea and not relevant to all businesses.”

We are fortunate however in that we have a prototype for this policy.

Companies today can contract wholesale business functions from other companies, such as security, catering and/or cleaning. Some companies outsource large parts of their HR function to specialist companies, although in the UK, this is often poor value. Basically, management theory suggests that you should outsource non core competency work where the transaction cost is less than the internal management cost. In addition, we permit individuals to incorporate themselves and sub-contract in competition with wage earners. There has been some controversy about how the public sector is using these contracts, but in the public sector the primary purpose at the moment is to avoid their grading commitments in their collective bargaining agreements. These contracts allow them to pay more than they have agreed the job is worth. In both the private and public sector, these contracts do not attract employer’s national insurance, although they do attract VAT, if the quarterly fees are above the VAT threshold. Both sides use the NI relief to fund the enhanced pay rates. Contractors, with limited terms, and no accrued rights are invariably paid more than staff with rights. They are paid more for each day worked. These rights are not bought on the market for a risible option price of £2,000 worth of scrip. Bottom line, employers that offer only ‘rights free’ jobs for less than the going rate may find it very hard to fill them.

For most small companies this isn’t an issue, if they want to get rid of someone, they just bully them into leaving, or fire them on notice. NB No one with under two years service has rights anyway and it takes two years to earn minimum redundancy rights greater than 1 month’s notice pay.

This is the “Same Old Tories, reprising the nasty party!”, and it was a Tory that first called them that!

The Daily Mash and News Thump have also now commented,

Your boss doesn’t see ‘what the problem is’

Nation’s workers excited to retain financial ties to companies that sacked them


I’d be interested in comments from others on the balance sheet effects of this proposal, and the impact on an IPO of having an outstanding share grant liability. …