Russell HR Consulting

Some of our clients are signed up with large companies who offer HR by phone.  The key selling point is that their service is supported by insurance in the case of a tribunal claim.  The advice given is often a bit on the soft side.  As we’re known for our robust approach, what tends to happen is that our clients come to us first for practical face-to-face advice, then phone the companies in question to try to persuade them to apply it.  (They have to do that to ensure they remain covered by insurance).  It can be very hard work and often (to our considerable frustration and that of our clients) they try to avoid taking a firm approach and pussy foot around. 

A client who is signed up with one such company, X, has been trying to dismiss a woman on grounds of capability for almost five months now.  There’s no doubt that the employee won’t be coming back to work, but will Company X act robustly?  Will they heck as like …… after four and a half months of not achieving very much, I had to get very Headmistressy with them last week, and I’m delighted to say that some progress is now being made. 

 While there is no legal duty placed upon an employer to get a doctor’s report, we are expected to do so if at all possible.

We wrote to the doctor in October.  Nothing happened.

We started calling the doctor’s surgery in November.  Nothing happened.

In December we started getting conflicting messages about the report being done/ not being done, being sent/ about to be sent.  We didn’t feel too full of confidence and predictably, nothing happened.

In early January we still hadn’t received anything so we wrote to the employee’s doctor and said we would make our own arrangements for her to see a doctor and there would be no need for her GP to produce a report. 

The lady in question is something of a ducker and diver.  She wouldn’t reply to letters or return phone calls and claimed that hand delivered letters constitute harassment.  Company X accepted this without apparent question;  I don’t agree with the argument.

After several failed attempts to get her to see a medical officer of our choosing, we wrote again and said that if we hadn’t heard from her by close on 9^th February, we would have to hold a formal meeting.  If we couldn’t find a way of making reasonable adjustments for her, this would start the process to dismiss.  She didn’t reply to our letter, but as if by magic, a copy of the questionnaire sent to the doctor and allegedly completed by him, was faxed to us.

We tried to get the original of the report, which was largely illegible, though it did say that the employee could not do certain things required in her job role.

We do tend to complain in Britain that with the first autumn leaves, the trains stop and with the first flake of snow the country stops. You may have noticed the odd flake of snow last week and this time things stopped with a vengeance. Stony Stratford was like a very pretty ghost town on Thursday. By Friday a certain welly booted Dunkirk spirit had emerged, a snow igloo appeared on Horse Fair Green (snowmen are so last year!) and our local Budgens, accessible by foot, did the best trade it’s done in a while.

I quite enjoyed an enforced two days in the office.  It meant that I could catch up with my paperwork, admire the snowy scene and do some long overdue writing for my friend and colleague Tall Paul (I am a contributor to Alchemy For Managers).

The question I have already been asked by client is,  “Does my company have to pay employees who don’t make it to work because of adverse weather conditions?”

Relatively few businesses have an express contractual term setting out what happens in the case of bad weather.  According to some pundits, an employer probably can’t deduct pay.  The rationale is that employees have statutory protection against an unauthorised deduction being made from their wages, so if the employer has no contractual right to deduct pay and if the employee does not consent, deducting pay would be potentially subject to legal challenge. 

I don’t incline to this thinking*.  It’s true that an employer can’t unlawfully deduct wages, but presumably that will be from wages that have been earned and accrued.  If the wages haven’t been earned, then the approach will be different.

My reasoning is this.  As an essential part of their employment contract, employees are under a duty to attend for work. This duty applies even where extreme weather conditions make the journey to work difficult.  If they don’t come into work, then they have not carried out their side of the contract.  It is therefore open to an employer to refuse to pay an employee who cannot make it into work because of the bad weather.

Before you say “goody!” and snap the cheque book shut, think  about alternatives to manage the situation and maintain employee morale.

The options available will be heavily dependent on your business, but if it’s possible, it may be worth giving employees the option to work from home in these circumstances. For many businesses, this is becoming increasingly practical as more and more employees have access to a laptop or a home computer that allows them to fulfil their duties from home.

If that’s not possible, an alternative is to allow employees to take the days off as part of their annual leave (it is perfectly legitimate for an employer to do that), or pay them, but make it clear that they must make up the time at a later date.

This should neatly cover any problems.

* And here you can see in action the well-established principle that when you have ten different legal minds tackling a problem, you may well have ten different opinions as an outcome!

From The Telegraph 1^st February 2009

I thought this was rather a sad comment on our times ………

A committed Christian, has been accused by her employers of failing to demonstrate a “personal and professional commitment to equality and diversity”.

The employee says she has never forced her own religious beliefs on anyone but politely inquired if the elderly patient wanted her to pray for her – either in the woman’s presence or after the nurse had left the patient’s home.

It seems that the patient had said she was not offended by the prayer offer but argued that someone else might have been.

The nurse was suspended in December and faces disciplinary action over the incident.

Many employers offer bonuses and commission on a discretionary basis. But in some cases the discretionary element hardens and can become a contractual entitlement.  This is what happened in a recent case.

Mr Small was a warehouseman who worked for Boots the Chemist.  He claimed that his employer had made an unlawful deduction from his wages when he was not paid performance related bonuses to which he claimed he was entitled.

Boots’ Staff Handbook said “After a qualifying period of service, there are additional discretionary benefits, such as bonuses… However, they are not intended to be contractual”. 

The Employment Appeal Tribunal concluded that the bonuses had become an entitlement for three reasons.

(i) The word “discretionary” could be referring to the provision of an overarching bonus scheme, to a decision each year to operate a bonus scheme, to the method of calculation of bonus, to the threshold which triggers a bonus, or to whether a percentage of salary (and if so, what percentage) will be paid. 

(ii) The bonus had been regularly paid over a long period of time and the vital question was whether any contractual entitlement had arisen.

(ii) Case law shows that in exercising its discretion as to the provision of a particular bonus, Boots had to act rationally and in good faith, something the original tribunal failed to consider. 

If your bonus scheme is giving you the blues, call the Russell HR Consulting team on 0845 644 8955 for practical advice.