Employee Relations and Employment Regulations

“Conflict in the working environment has its place. It can be good if it is focussed on resolving business issues, allowing people to air their views and argue their position(s) with the aim of improving business outputs or the operating environment. However, conflict can….. suck the life blood away from any organisation. It diverts energy away from the achievement of key organisational tasks towards the need to repair relationships and address grievances. Effectively and appropriately managing working relationships (using both formal and informal mechanisms) from the outset to direct such energies appropriately - and therefore minimising the opportunities for such conflict - is just good business”.

(Bratton & Gold, 2007: 488-489)

1.0 INTRODUCTION

All individuals are different from each other in terms of their attitudes, beliefs, preferences, character and motivation. When someone is offered an employed position, this is usually done so on the basis of a sensible selection process - they closely match the requirements outlined in the role profile, job description and person specification (see Chapter X - Recruitment and Selection).

However, despite the best efforts to create the perfect match between the employer and the employee, the person turning up for work does not just bring the qualities that led to the offer of employment. They also bring everything with them that makes them a unique individual (although psychological selection processes can provide an early indication of these traits) (Currie, 2006). This therefore creates a need for any company to understand the motivation and drivers of their staff in order to ensure that they are satisfied in the workplace. People are one of the key corporate resources and if it is accepted that maximising the use of resources is the best way to maintain an enduring competitive position and achieve organisational objectives then effective engagement is essential for business success.

Work motivation is about being able to create an environment whereby staff are willing to apply their efforts towards the achievement of corporate goals whilst also/concurrently ensuring that individual and group needs are satisfied (Armstrong & Taylor, 2014). The challenge for both the employer and the employee is that in seeking to create this environment there are also legal and regulatory stipulations to consider which govern the way in which these relationships need to be managed and structured.

This chapter will seek to outline the major factors shaping and defining the employer-employee relationship. In doing so, it will first discuss the concept of the employee before moving on to provide an indication of the formal frameworks that need to be considered. This will then provide the essential context needed to review the broader (and sometimes more informal) area of employee relations.

LEARNING OUTCOMES

To be able to:

  1. Understand the business need to develop and maintain good working relations with employees.
  2. Appreciate formal and informal frameworks that can be used to improve employee engagement.
  3. Understand the key legislative and regulatory frameworks surrounding the employer-employee relationships
  4. Understand the basic elements of a contact of employment.

2.0 WHO (OR WHAT) IS AN EMPLOYEE?

The employment status of an individual has significant implications for both the person concerned and the ‘employing organisation’ - being regarded as an employee gives a number of rights whilst also creating mutual obligations (Leatherbarrow & Fletcher, 2015). From a legal perspective, an employee is working under a ‘contract of service’ which is rooted in the ancient servant-master relationship. A non-employee (such as someone who is self-employed or working as a sub-contractor) is deemed to operate under a ‘contract for services’ (Torrington, Hall, Taylor & Atkinson, 2014). To put things more simply, all employees are workers, but not all workers are employees! (Leatherbarrow & Fletcher, 2015).

A challenge arises when attempting to define the term ‘employee. UK law defines an employee as being an individual who has entered into or who works under a contract of employment (UK Legislation, 2016a). However, this is clearly open to significant interpretation and further UK Government guidance suggests that if they an individual meets the following then they are likely to be an employee:

  • Required to work regularly, unless on leave.
  • Required to work a minimum number of hours and expect to be paid for that effort.
  • Work to a manager or supervisor responsible for directing their workload.
  • Cannot send someone else to do their work.
  • Have tax and national insurance deducted from their wages
  • Receive paid holidays.
  • Entitled to sick, maternity or paternity pay (contractual and/or statutory).
  • Can join a company pension scheme.
  • Corporate disciplinary and grievance procedures apply.
  • The business provides a place of work and/or tools, materials and equipment.

(UK Government, 2016)

Possessing a written contract of employment clearly helps to set the required parameters for the working relationship when it uses terms such as ‘employer’ and ‘employee’. However, it has to be accepted that there is still significant scope to challenge such interpretations given the flexibility of the modern workforce. For example, even without such contracts, some personnel employed under a contract for services (see above) have been able to claim employee status and transfer their tax and national insurance obligations to the employing organisation (Leatherbarrow & Fletcher, 2015).

Discussion Point:

How would you define the term employee? Can you identify a number of different situations where people are working under either a contract for service or a contract of service? What are the key differences?

2.1 CONTRACT OF EMPLOYMENT

UK employment legislation (discussed later in this Chapter) provides the framework within which the relationship between the employer and employee should be conducted. This can be encapsulated within an employment contract which is formed on the basis of a clear and unambiguous offer from the company, an unconditional acceptance of that offer from the individual and some form of consideration (usually pay and associated benefits) (Beardwell & Thompson, 2014). There must also be an intention between both parties to form a binding contract (i.e. it shouldn’t happen by accident!) and the terms and conditions agreed generally fall into three areas:

  • Express. The clear terms are usually outlined in the contract of employment itself, but can also be set out in other corporate documentation such as staff handbooks. The provisions are recognised by all concerned (employer, employee and any representative bodies such as Trade Unions and Staff Associations) and should address minimum legal standards (such as minimum wage provisions, rest breaks and holidays).
  • Implied. UK Common Law assumes that both the employer and employee will be ‘fair and reasonable’ in their dealings with each other. Consequently, although they may not be outlined in any written contract, it is ‘fair and reasonable’ to expect all parties to maintain things such as a healthy working environment. The focus is on co-operation, acting honestly and with integrity whilst exercising reasonable care in the workplace. (Common Law is essentially ‘judge-made’ where the Courts have sought to provide further clarity, set rules or define principles).
  • Statutory. Employers and employees must abide by statutory legislation. This is a challenge as statutory provisions continue to grow as the Government seeks to capture many previous rights, obligations and expectations which were covered by common law (i.e. implied requirements) requirements. Key statutory aspects are addressed later in this Chapter.

(Redman & Wilkinson, 2009).

Discussion Point:

Is an unplanned/unannounced strike by railway workers a breach of their implied conditions of contract? The strike is being held to express concerns relating to mandated working practices which the workers believe undermine the safety of passengers.

3.0 EMPLOYMENT REGULATIONS

Within the UK, there is a huge range of legislation and associated arrangements that seek to regulate the relationship between the employer and the employee. Whilst historically, the UK has sought to minimise state interventions preferring to take a minimalist approach, this has changed considerably in recent years. Whilst much of the new legislative arrangements have grown from the UK’s membership of the European Union, this also reflect national desires to create a new industrial relations landscape (such as controlling the role and power of Trade Unions) (Price,  2007).

Over the past forty-five years, the UK has passed over thirty Acts of Parliament that shape the legal relationships between employers, employees and employee representatives (e.g. Trade Unions) (Bratton & Gold, 2007). The aim of this section is to present the key issues captured by some of the most fundamental and important legislative frameworks in order to inform the subsequent discussion of employment relations. However, further reading is advised as the UK now possess one of the most highly regulated labour markets in the world - which reinforces the importance of a good, well qualified Human Resources Department for any successful business! (Torrington et al, 2014).

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3.1 EMPLOYMENT RIGHTS ACT 1996

One of the most important and powerful pieces of primary legislation addressing employment law, the Employment Rights Act 1996 set out numerous minimum standards that an employee now has a right to expect. Perhaps most challengingly for businesses, the inclusion of amendments to this Act (from the passing of the Children and Families Act of 2014) means that this legislation now seeks to address more social issues traditionally seen to be outside of the concern of employers. For example, parents now have the right to request shared parental leave (Armstrong & Taylor, 2014).

The Employment Relations Act 1996 stipulates that employees have a legal right to receive a detailed statement covering their terms and conditions of work within two months of joining the company. Any changes to these terms and conditions require consultation (i.e. they cannot be imposed unilaterally) and importantly employees are now also empowered to request changes to their contract terms (Foot & Hook, 2008).

Other key provisions of the Act include:

  • Rights to ‘time off’ including parental leave, public duties (e.g. membership of the Reserve Forces), Trade Union activities, care for dependents and seeking/preparing for alternative employment if served with a redundancy notice.
  • Minimum notice periods for the termination of employment

(Leatherbarrow & Fletcher, 2015).

3.2 THE EQUALITY ACT 2010

The importance of operating in a non-discriminatory manner was examined in the previous chapter. The Equality Act 2010 has extended anti-discrimination protection to people with certain characteristics including race, disability, sex, sexual orientation, religion (or belief), age, pregnancy and marital status (Armstrong & Taylor, 2015).

As a consequence, almost any form of direct or indirect discrimination (intentional or unintentional) can be legally challenged. Under the provisions of the Act, those experiencing harassment and victimisation (e.g. by other colleagues) can also claim that they are experiencing discrimination (Taylor, 2014).

The Act established the Commission for Equality and Human Rights who can be approached directly by any individuals or entities to consider apply sanctions on a company. The Commission also has the power to initiate its own prosecution procedures should it consider that discrimination is taking place (Marson, 2009). Whilst these powers are extensive, the creation of the Commission does at least bring together the monitoring and enforcement effort for all relevant anti-discrimination legislation in one place (i.e. the Sex Discrimination Act 1975 and the Race Relations Act 1976) (Equality Act 2010, 2015).

One example of where the wide-ranging remit of the Act can be highlighted relates to pay. Clear stipulations are outlined in terms of pregnancy and maternity pay as well as provisions addressing the need to maintain equal pay between men and women. An employment contract cannot contain clauses that prevent an employee disclosing or sharing details of their pay and both private and public sector organisations must publish statistics highlighting any gender pay gaps that may exist (Leatherbarrow and Fletcher, 2015).

3.3 HEALTH AND SAFETY AT WORK

A large number of laws and regulations must be considered when managing the employer-employee relationship including:

  • The Health and Safety at Work Act 1974.
  • Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 1995.
  • Health and Safety (Consultation with Employees) Regulations 1996.
  • Management of Health and Safety at Work Regulations 1999.
  • Corporate Manslaughter and Homicide Act 2007.

(Leatherbarrow & Fletcher, 2015)

Not surprisingly, the Employment Rights Act 1996 also contains a number of provisions addressing the need to create and sustain a safe and healthy working environment. However, in addition employers need to be aware that increasing importance is also being placed on employee well-being and the maintenance of a sensible work-life balance and these legislative frameworks are now being used to address such concerns. For example, the Health and Safety Executive has been used as the mechanism to introduce standards surrounding work-place stress measurement and mitigation measures (Leatherbarrow and Fletcher, 2015).

Significant criminal sanctions can now be applied for any breaches of Health and Safety legislation. However, it should be noted that the various Acts and regulations place obligations and responsibilities on employees. The aim is to remove work pace hazards (both physical and mental) and if they cannot be removed to conduct risk assessments that lead to the creation of a safe system of work (UK Legislation, 2016b). In essence, the employer owes a ‘duty of care’ to their employees, but employees must also do all that they can to remove or at least minimise workplace hazards through their own actions and behaviours.

Discussion Point:

What do you see as being the main causes of stress in your workplace? Whose responsibility is it to resolve these issues?

Who could you contact for support if you felt that you were being asked to work in an unsafe manner?

3.4 HOURS AND WAGES

The 1998 Working Time Regulations introduced the key stipulations of the European Working Time Directive into UK Law. These place limits on working hours (establishing a key right not to work in excess of 48 hours each week unless employees choose to do so) as well as entitlements to rest breaks and annual leave (Armstrong & Taylor, 2015).

The National Minimum Wage Regulations 1998 now makes it both a civil and a criminal offence if an employer does not adjust their pay regimes to reflect the minimum hourly rates set out by the Government (Lockton, 2014).

3.5 THE PUBLIC INTEREST DISCLOSURE ACT 1998

The Public Interest Disclosure Act 1998 supports employees who wish to raise any business performance or ethical issue that provides evidence of any company malpractice or failing that is:

  • Is a criminal offence.
  • Does not meet the legal obligations placed on the business e.g. the duty of care discussed above (3.3);
  • Presents a danger to the health and safety of any individual or group;
  • Damages the environment.
  • Has resulted in a miscarriage of justice.
  • Seeks to conceal any of the above noted failings.

(Fisher, Lovell & Valero-Silva, 2011)

This ‘whistle-blowing’ legislation protects and empowers employees to challenge the business practices of their employer. The intent is to overcome any organisational or cultural pressures that may prevent employees from acting through fear for their future career or current job prospects (Lockton, 2014).

3.6 FAMILY FRIENDLY APPROACHES

The provisions of the Children and Families Act 2014 have already been outlined and this reflects an increasing public desire for employment rights to keep pace with modern family developments. These are only likely to continue with the main requirements being built around extensive leave entitlements and the ability for employees to request a change of contract to better match their domestic circumstances.

However, whilst all employees have the right to request flexible working patterns (and the employer has a legal duty to consider all such requests reasonably), they can be refused if the requirements of the business make it impossible to support such arrangements (Lockton, 2014).

Discussion Point:

What do you think would be reasonable business grounds to refuse a request for flexible working from an employee struggling with their childcare commitments?

3.7 SECTION SUMMARY

As suggested, this section has only been able to touch on the key legislative provisions that you need to be aware of and many others exist that will impose further obligations on the employer-employee relationship. For example, the Data Protection Act of 1998 provides employees with the legal entitlement to access their personnel records along with any other personal information held by the business.

The challenge for business is staggering, particularly as they are likely to face legal action and employment tribunals if they do not comply with the plethora of employment legislation and regulation. Numerous codes of practice also exist (such as those issued by the Advisory, Conciliation and Arbitration Service (ACAS)) and whilst they not possess any legal force, they can be used as evidence to support any subsequent claims for compensation should an employee feel that they have been unfairly treated (Lockton, 2014).

This difficult legal landscape is further complicated by the ability of the European Union (EU) to issue new Employment Directives which become legally binding on UK businesses immediately (Painter & Holmes, 2012). Whilst this may change in the future (as this Chapter is being written in 2016 - the year of the UK referendum vote to leave the EU), currently employers must remain aware of this dimension.

Given all of these points, it is therefore vital that employers do all that they can to maintain effective relations with their employees in order to avoid having to face some of these legal complexities. These aspects are discussed below.

4.0 EMPLOYEE RELATIONS

Whilst there is a clear and understandable focus on what must and should be done to safeguard employer and employee interests within the legal and regulatory frameworks discussed, these arguments rarely focus on what a business needs to do! Ultimately, a successful company needs to develop and maintain an enduring competitive advantage in order to thrive and survive (Porter, 2004).

As a consequence, effective employee engagement is simply good business. Conflict and tension between employees and their employers is negative and disruptive and means that the organisation does not function as effectively as it could or should do in order to achieve its business objectives (Leatherbarrow & Fletcher, 2015). This unitarist perspective which has gained significant momentum in recent years has seen the development of employee relations approaches which seek to unify effort, motivating and inspiring employees through systems that aim to foster loyalty and commitment (Muller-Camen, Croucher & Leigh, 2008).

4.1 EMPLOYEE ENGAGEMENT

The concept of employee engagement is seen to be central to such arguments, which is essentially comprised of the need for:

  • Emotional engagement where the aim is to create a working environment where employees have emotional as well as structural ties to their managers and the organisation. In order to do so, employees must feel that their opinions count. Also, employees must also feel that there is a genuine interest in their development needs (expressed both in organisational policies and in the actions of managers/leaders).
  • Cognitive engagement. The formal structures outlined in the previous Chapter and the legal/regulatory frameworks discussed (above) should outline what is expected of employees, their purpose/role and how that relates to the organisational mission and objectives. However, this needs to be developed to include opportunities for the employee to excel and grow as they work within such frameworks, providing information and guidance in terms of advancement and performance improvement.

(Kahn, 1990)

Employee Engagement is a combination of commitment to the organisation and its values. It is about a willingness to help out colleagues (organisational citizenship if you will) that goes beyond basic job satisfaction. It is not simply motivation and it cannot be required or demanded as a part of the employment contract. Engagement is about something the employee has to offer - assuming that the employer can create the conditions to support the employee in making that offer.

(Daniels, 2010)

Returning to the key rationale for most business strategies - to create an enduring competitive advantage that delivers growth and profitability - then the ability to engage effectively with one of the key resources involved (i.e. people) is a common sense approach. However, there are also tangible business performance drivers confirmed through extensive quantitative and qualitative investigations:

  • Significant correlation has been found to exist between levels of employee satisfaction and the performance of a business. When measured using indicators such as productivity, customer response times and profitability, businesses with the highest rates of employee engagement are twice as successful as those reporting the poorest levels of engagement.
  • Poor engagement leads to increased turnover. Given the significant costs (financial and performance) associated with recruitment noted in the previous Chapter this is a critical capability issue for any business.
  • Indicators of employee satisfaction (and resulting performance) can vary significantly between similar business units within the same company. This highlights how employee engagement efforts can directly shape performance (i.e. employee engagement is not achieved through a simple reliance on formal/structural mechanism).

(Torrington et al, 2014)

So, employee engagement is clearly important. Some formal, more structured approaches can help to create the essential working conditions and culture required to foster the commitment and motivation required. For example, the job design processes outlined in the previous Chapter can help to create interest, challenge, variety, autonomy and task significance most people are likely to seek (Armstrong & Taylor, 2014). However, when considering how engagement is likely to be shaped by culture and attitudes to work, then it is essential to examine how less formal interventions can be developed to create the atmosphere needed to build good employee relations.

4.2 EMPLOYEE VOICE

Employee Voice (a term that has only become prominent in the twenty-first century), refers to the varied processes and structures used to enable people to contribute to decision making in their workplace. This could also provide employees with the ability to influence decision making in areas elsewhere within the organisation.

(Torrington et al, 2014: 648)

The chances of delivering sustained business success is higher if employees are given the opportunity to become involved in ‘their’ organisation. If staff better understand what lies behind the objectives they have been set, then they are more likely to work harder to achieve them. Also, the dialogue that results can help the management of a business to gain useful contributions from their people who ultimately understand the ‘nuts and bolts’ of the company. Interestingly, in taking forward any business change programme, the effective and early involvement of employees is often seen as being the critical success factor, as people are (understandably) happier to support an initiative they feel they have helped to create (Kotter, 1996). But how best to go about providing the conditions whereby this essential ‘employee voice’ is nurtured, encouraged and listened to?

4.2.1 INFORMATION SHARING

The sharing of information can be carried out in numerous ways such as team briefings from managers, news sheets, noticeboards, email notifications and corporate publications. However, being told about things does not give employees any voice or influence - the challenge is to create a dialogue that builds a sense of involvement and which provides staff with the mechanisms to articulate alternative (and sometimes better!) solutions to the workplace issues being faced (Currie, 2006).

This has led to the emergence of more interactive team meetings (as opposed to more formal team briefings by line managers). In giving employees greater freedom to express their views and opinions, they feel more valued even if their suggestions are not carried forward. Being listened to is often one of the most effective engagement mechanisms, providing that it is explained to employees why their ideas may not be taken forward by the company (Bratton & Gold, 2007). Such meetings can often have greater impact when they are used as a mechanism to allow workers access to the senior leadership of any organisation through events such as ‘executive roadshows’ and on-line question and answer sessions.

Attitude surveys and staff suggestion schemes (if intelligently managed) also provide a mechanism to capture employee voice. However, unless the emerging findings are properly recognised, discussed and addressed by the company then they can actually undermine employee engagement efforts so it is important to use them carefully! (IRS, 2005).

Many companies have built informal team gatherings that seek to capture a range of opinions utilising the concept of ‘quality circles’.The aim is to create a problem-solving group that involves people from across the organisation (and all levels) to generate ideas, encourage cooperation and drive change (Torrington et al, 2014).

Discussion Point:

What opportunities have you been given in the workplace to share your views and opinions with your managers and leaders? What worked well (or less well) and why?

4.2.2 CONSULTATION

Consultation is generally regarded as being the hallmark of good management and (as already noted) UK employers have a legal obligation to consult with their staff (Torrington et al, 2014: 341).

Where representative bodies exist (such as Trade Unions) then formal consultative frameworks are likely to be in place. Even if this is not the case, then it is sensible to provide employees with the opportunity to express their views and opinions relating to a business change (even if relatively minor) so that they feel their views have been considered and addressed by their managers. However, as previously noted, this ‘voice’ must be genuinely received and considered as staff can quickly become disengaged and cynical if they begin to feel that their views are not really valued or welcome.

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4.2.3 CO-DETERMINATION

It is possible to provide employees with the opportunity to exercise greater autonomy over their work. For example, many organisations allocate team targets and then allow that group to decide how best to allocate work in order to achieve those objectives. The resulting dialogue and the self-organisation that results is seen to deliver greater employee engagement, although careful (if discrete) management and supervision is often required.

Within the UK, the debate over co-determination has reached new levels thanks to concerns of the poor representation of employee rights (such as pension protection) within large corporate entities. At the time of writing (2016), various proposals suggesting the inclusion of employee representatives at Board level are being considered by Parliament.

4.3 INDUSTRIAL RELATIONS

Industrial Relations is not just another term for Employee Relations, as it denotes a significant change in emphasis. Concern with industrial relations developed when the focus was on collective relationships within an industry such as engineering, agriculture and teaching. Each business within the ambit of that industry observed the terms and conditions between employers’ representatives and Unions, which bound every employer. In contrast, employee relations have little regard for industry criteria and focus on collective arrangements within an individual business.

(Torrington et al, 2014: 648)

Many (dated) texts considering employee relations focus on the formal, structured relationships that exist between Trade Unions, associated bodies and Employer Representative groups (such as the Confederation of British Industries - CBI). However, as can be seen from the arguments presented in this Chapter, modern attitudes to employee relations take a much broader perspective.

Even so, the dynamic between employee representational groups and employers (reflecting the more traditional ‘industrial relations’ description) remains a vital component of any employee engagement strategy. Whilst it is much rarer (in the UK) for Trade Unions to be focussed on collective arrangements across a number of businesses they are still actively involved in providing employees with an empowered ‘voice’ through the provision of working guidance, legal advice/support and media campaigns. Often, Trade Union representatives remain the primary formal staff engagement mechanism for business leaders and in areas where the working relationship is good then this also supports more informal engagement networks.

For employee relations, it is important to understand that in many large organisations a Trade Union is empowered to reach a collective agreement with an employer that can shape the terms and conditions of all staff even if they are not a member of that Union (Bratton & Gold, 2007). Whilst not legally enforceable in the UK (until incorporated within a contract of employment), as modern workplaces continue to evolve this raises an interesting issue - do such Union representatives continue to accurately reflect the ‘voice’ of all employees?

Discussion Point:

In the UK, Public Sector Trade Unions negotiate with Government bodies to reach agreement on the terms and conditions of service for civil servants. If Trade Union membership has fallen below 50% in the Public Sector, is this still right? If not, how else should the Government engage with civil servants when considering a change to their terms and conditions of employment?

5.0 CONFLICT RESOLUTION AND DISCIPLINE ISSUES

As noted in the opening statement in this Chapter, conflict in the workplace can be useful. If through engagement staff feel able to openly express their point(s) of view and share their frustrations then this can be used to help improve business processes and redefine corporate objectives (Leatherbarrow & Fletcher, 2015). However, giving employees a voice and working out suitable programmes of engagement will not necessarily be a harmonious process.

Expressions of dissatisfaction with business processes and/or management policies may lead to open conflict or even industrial action (e.g. in the form of authorised or unauthorised strikes, withdrawing goodwill such as refusal to work outside the specific remit of a contract etc.) (Armstrong & Taylor, 2015). This is more likely when the formal and informal engagement mechanisms used have not proven to be useful (or even trusted) further reinforcing the importance of genuine and open dialogue (see 4.2 above).

5.1 MEDIATION

In the UK, mediation is seen as a means of avoiding a reliance on costly and time-consuming formal processes to resolve work-place grievances. This informal and flexible approach to reaching consensus is embodied in the recognised and accepted role of the Advisory, Conciliation and Arbitration Service (ACAS) (Bratton & Gold, 2007). Whilst its role in collective bargaining has been removed by legislation (reflecting the changes already discussed), ACAS finds itself facing increasing demands to deal with individual conciliation cases where employee engagement has failed.

In involving a third party in conflict resolution (even on a low-level or simplistic basis such as another line-manager for staff discussions), it is important to understand that the third party does not recommend or decide on any form of settlement (Armstrong & Taylor, 2015). Ownership of the dispute rests with the parties concerned, especially as this encourages all involved to fully commit to implementing any solutions reached. Such conciliation is often used informally throughout organisations.

Sometimes, the third party can be asked to reach a decision on behalf of those in conflict. This arbitration is only effective if all involved have agreed in advance to accept the decision reached on their behalf as being binding which requires significant trust.

5.2 DISCIPLINE

Where the formal and informal mechanisms outlined in this Chapter have failed to ensure that employees meet the required standards and behaviours outlined and agreed for the organisation, then formal disciplinary measures may be necessary. This should be aimed at improving the employee’s behaviours, punishment if necessary through appropriate sanctions and deterring others from taking the same actions (Beardwell & Thompson, 2014).

The rules of behaviour should be clearly set out in writing (see 3.1 above) so that all staff understand the criteria likely to be applied (e.g. what may constitute gross misconduct). Penalties should be scaled and appropriate such as rebukes, warnings, transfers, demotions, suspensions and (if necessary) dismissal (Bratton & Gold, 2007).

Even for minor concerns, a disciplinary process should be formal and recorded. This ensures fairness, allows employees to seek representation if necessary and helps to prevent the organisation being inconsistent in the decisions reached. A stepped and progressive approach (e.g. a verbal warning first, with written warning for subsequent breaches, then suspension then dismissal) also provides adequate opportunities for the employee to correct their failings (Foot & Hook, 2008).

Discussion Point:

Study the ACAS code of practice relating to disciplinary and grievance procedures. How would you manage an employee whose performance consistently fails to meet the standards required? How many opportunities to improve should you give them before you seek their dismissal?

6.0 SUMMARY

This Chapter has only been able to provide you with the most essential overview of a number of complex issues surrounding employment law and employee relations. Further reading is recommended in order to develop your understanding and the texts suggested at 6.1 (below) provide a good start.

The formal legislative frameworks surrounding the employer-employee relationship are extensive. However, an understanding of how to effectively manage employee relationships (and the use of the more informal engagement mechanisms) can help to both maintain an enduring competitive advantage and avoid a potential breach of legislation.

Do you feel that there is too much legislation and regulation surrounding the employer-employee relationship? Would it be better to just focus on the provisions of the contract of employment?

Does conciliation really work or does it just help to hide or delay workplace problems that resurface again later?


EMPLOYEE RELATIONS IN PRACTICE

After a rigorous and challenging selection process, Mark was appointed to a consulting company as Secretary and Executive Assistant to Jane - one of the three senior partners. From the outset, the working pace was frenetic with long hours expected of everyone in the office in order to meet the demands of both clients and the very busy consultants.

Even though he was responsible for managing her work schedules and reports, the nature of the business meant that Mark saw very little of Jane. Apart from a brief introductory chat (as Mark was appointed through a selection centre), most of their day to day interactions were by email, telephone calls and video conferencing. Jane would provide challenging but interesting work demands at the start of each day and these would then be amended or changed as client requirements developed.

Mark enjoyed the work, but did feel isolated as the office tempo made it difficult for him to get to know the colleagues working around him. He was rarely able to take a lunch-break away from his desk and he routinely spent over ten hours each day in the office. Despite this, Mark enjoyed the work - he found it interesting and intellectually stimulating.

After three months, Jane began asking Mark to work weekends to help her write up assignments. Mark declined, stating that this was the only time that he had to himself and to catch-up with friends and family. He offered to work longer during the week if that would be helpful, but this was declined by Jane.

From this point onwards, Mark noted that Jane began to criticise the standards of his work, calling him over the weekends to discuss issues that she felt needed correcting. On the few occasions that she came into the office to discuss things in person, Jane would often use Mark’s apparent failings to blame him for missed deadlines - often in front of clients. When Mark had the chance to raise this with one of the other Executive Assistants, he learned that Jane had a reputation for ‘being difficult’ and that not one of Mark’s predecessors had lasted long - there had been four in the past two years!

Mark tried to speak to Jane about her concerns, but she was dismissive, stating that if he could not meet her expectations then he should just leave. Mark then made contact with the HR Director that had recruited him into the company and raised a formal complaint about Jane’s behaviour towards him. In response, Jane also raised a formal complaint, stating that Mark should be dismissed as he was clearly failing in his duties. The HR Director - Susan, a relatively new member of the team herself - therefore decided to investigate in person.

The results of Susan’s investigation highlighted a number of major business failings that needed to be corrected immediately. In her report to the Board, she covered the following issues:

  • After almost four months, Mark still had no contract of employment. This meant that he was unaware of what he could be reasonably expected to achieve in terms of performance objectives and the standards of behaviour he was required to meet.
  • The absence of any formal induction process meant that Mark was isolated from the outset. As he was unware of who else was joining the company at the same time, he had no access to informal support networks.
  • Jane had not provided any form of job description specific to her consultancy support requirements, nor had any performance agreement (with SMART objectives) been agreed.
  • The absence of any form of corporate documentation (such as an employee handbook), intranet information or noticeboards meant that Jane was unaware of her obligations and responsibilities as a manager. Nor was there any training to cover this role as all development interventions were focussed on improving professional competences (e.g. project management). This also meant that Mark had no idea of the grievance procedures that were open to him.

Susan’s initial report was largely ignored by the Board, who stated that the focus must be on meeting client demands and that Jane was an excellent consultant who needed excellent support. Whilst formal management policies would be useful, they were not a priority for the business at this time…….. Susan therefore re-drafted her report, to point out that:

  • The business was in flagrant breach of the Employment Rights Act 1996 as Mark had not received any contract of employment setting out his terms and conditions - this should have been completed within two months of Mark’s arrival.
  • Assuming that Mark was to receive the standard employment contract issued by the company, then Jane could not force him to start working weekends as such changes cannot be imposed unilaterally.
  • Mark had a very good case to submit a claim for harassment and victimisation under the Equality Act 2010.
  • The pace of work and associated mental stress and anguish that Mark was experiencing could also be seen as a breach of the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. The company was not exercising its legal ‘duty of care’ towards Mark.
  • The company was in breach of the 1998 Working Time Regulations in routinely expecting Mark to work over fifty hours each week without offering him the opportunity to choose to do so.
  • That inaction by the Board (allowing Jane to mistreat her Executive Assistants) increased corporate overheads significantly. Recruiting five Executive Assistants for Jane over the past two years (through the selection centre) was estimated to have cost over £80,000.

This time the Board decided that they needed to act! Susan was charged with developing HR policies, procedures and strategies that would reflect and support the corporate objectives of the company. Mark became Susan’s Executive Assistant, received a contract of employment and a performance and development agreement that was reviewed monthly.

Remaining Questions:

What action could Mark have taken?

What policies are needed?

What should happen to Jane?

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6.1 RECOMMENDED TEXTS

Leatherbarrow, C., Fletcher, J. (2015). Introduction to Human Resource Management: A Guide to HR in practice, 3rd Edition, London: Chartered Institute of Personnel and Development.

Lockton, D.J. (2014). Employment Law, 9th Edition, Basingstoke: Palgrave Macmillan.


7.0 REFERENCES

Armstrong, M., Taylor, S. (2014). Armstrong’s Handbook of Human Resource Management Practice, 13th Edition, London: Kogan Page Ltd.

Beardwell, J., Thompson, A. (2014). Human Resource Management: A Contemporary Approach, 7th Edition, Harlow: Pearson Education Ltd.

Bratton, J., Gold, J. (2007). Human Resource Management, 4th Edition, Basingstoke: Palgrave Macmillan.

Currie, D. (2006). Introduction to Human Resource Management: a guide to personnel in practice, London: Chartered Institute of Personnel and Development.

Daniels, K. (2010). Employee Engagement, London: Chartered Institute of Personnel and Development.

Equality Act 2010. (2015). Equality Act 2010: Guidance. [Online], Available:

https://www.gov.uk/guidance/equality-act-2010-guidance.  [30 November, 2016].

Foot, M., Hook, C. (2008). Introducing Human Resource Management, 5th Edition, Harlow: Pearson Education Ltd.

Fisher, C., Lovell, A., & Valero-Silva, N. (2011). Business Ethics and Values, 4th Edition. Harlow: Pearson Education Ltd.

IRS. (2005). IRS Employment Review (820), London: IRS.

Kahn, W. (1990). Psychological conditions of personal engagement and disengagement at work, Academy of Management Journal, 33, pp. 692-724.

Kotter, J. P. (1996). Leading Change. Boston: Harvard Business School Press.

Leatherbarrow, C., Fletcher, J. (2015). Introduction to Human Resource Management: A Guide to HR in practice, 3rd Edition, London: Chartered Institute of Personnel and Development.

Lockton, D.J. (2014). Employment Law, 9th Edition, Basingstoke: Palgrave Macmillan.

Marson, J. (2009). Business Law, Oxford: Oxford University Press.

Muller-Camen, M., Croucher, R., Leigh, S. (2008). Human Resource Management: A case study approach, London: Chartered Institute of Personnel and Development.

Painter, R.W., Holmes, A.E.M. (2012). Employment Law, 10th Edition, Oxford: Oxford University Press.

Porter, M.E. (2004). Competitive Advantage: Creating and Sustaining Superior Performance, New York: Free Press.

Price, A. (2007). Human Resource Management in a Business Context, 3rd Edition, London: Cengage Learning EMEA.

Redman, T., Wilkinson, A. (2009). Contemporary Human Resource Management: Text and Cases, 3rd Edition, Harlow: Pearson Education Ltd.

Taylor, S. (2014). Resourcing and Talent Management, 6th Edition, London: Chartered Institute of Personnel and Development.

Torrington, D., Hall, L., Taylor, S., Atkinson, C. (2014). Human Resource Management, 9th Edition, Harlow: Pearson Education Ltd.

UK Government. (2016). Employment Status. [Online], Available:

http://www.gov.uk/employment-status/employee  [30 November, 2016].

UK Legislation. (2016a). The Employment Rights Act 1996. [Online], Available:

http://www.legislation.gov.uk/ukpga1996/18/section/230  [30 November, 2016].

UK Legislation. (2016b). Health and Safety at Work etc. Act 1974. [Online], Available:

http://www.legislation.gov.uk/ukpga/1974/37/introduction  [30 November, 2016].


8.0 BIBLIOGRAPHY

Armstrong, M. (2006). A Handbook of Human Resource Management Practice, 10th Edition, London: Kogan Page.

Millmore, M., Lewis, P., Saunders, M., Thornhill, A., Morrow, T. (2007). Strategic Human Resource Management: Contemporary Issues, Harlow: Pearson Education Ltd.


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