Keeping employment law in context

Over 20 years of providing employment advice to employers, one of the key differentiators I have seen in terms of the maturity of an organisation is its approach to labour/employment regulation.

Employers often bemoan the advice they get from lawyers as to how to approach a situation – the human element of the employment relationship, the ability for the employer and employee to talk openly as human beings who have worked and often socialised together, gets lost amid a raft of formal, formulaic letters drafted by the lawyer. I think there are various relevant factors here.

The first is that a legal advisor is just that, an advisor. You go to a lawyer to tell you the law and to highlight the various risks involved in following particular approaches. In most aspects of our lives, and certainly so for most of the activities of businesses, we seek advice from a whole host of different people and, having gathered the information we think we need, we make our own decision as to how to proceed. If however you slavishly follow the advice of the very person instructed to advise you on risk, your lawyer, is it any surprise that the outcome is so heavily legalistic in nature? HR professionals need to have the confidence to listen to the legal advice but then, having regard to the nature of the organisation, the people involved and the situation, frame an approach that best takes account of the often contradicting factors. Don’t blame lawyers for giving you legal advice.

On the other hand of course there are lawyers and there are lawyers. Different law firms and even different individuals within those firms take different approaches to the advice they provide. While some are more prone to focussing on the risks and keeping the client to a very tight and controlled approach to a situation, others are far more comfortable working with the client to come up with an approach that works for the client, is consistent with the values and approach of the client and reflects the particular circumstances of the case, while retaining an eye on and seeking to minimise the legal risks at the same time. This is more creative, requires greater flexibility and often will require more time, but ultimately will give the client a solution, an approach, which the client feels comfortable using. This means choosing the right lawyer but it also means spending time with the lawyer to allow him or her to understand your approach as a client. You would not for example expect to engage a PR agent to advise on public relations without ensuring the agent absolutely got what you were about – the same is true for your lawyer. It also means building a relationship of trust with the lawyer. If the lawyer feels that at any moment you may turn round and complain about the advice given then the lawyer will want to cover his back at every opportunity. If however you make it clear that you want a more constructive relationship founded on trust then you are far more likely to get the advice you want.

Thirdly, and as importantly, is the attitude of the organisation to the legal framework more generally – is employment law seen as a natural and welcome part of the business environment or an administrative burden?

In reality the vast majority of UK and European employment legislation represents a helpful framework for employers setting out minimum standards of behaviour which if embraced as an opportunity rather than a hindrance can help guide the organisation towards greater maturity.

Take collective consultation on a TUPE transfer as an example. What the law says (among other things) is that before a transfer you need to consult with representatives of the affected employees, i.e. take some time to talk to the affected staff about what is happening, why and what it means for them. Is that really so hard? Is that not what a mature organisation ought to be doing in any event with a workforce that it respects, values and may have employed for many years? And might not that workforce, skilled and experienced as it is, potentially have some valuable input to make? And how much better will relations with that workforce be after the event if the organisation approached the exercise in a mature way based on dialogue, cooperation and openness?

Or take unfair dismissal. The law says that before dismissing someone you have to talk to them about it, explain the reasons, give them an opportunity to consider and respond and in the right circumstances give them a chance to make good the problems that are leading you to consider dismissal. Is this anything more than common sense and human decency to someone you have employed for some considerable time – two years under the current arrangements – and in whom you will have invested quite considerable time and money and who will have invested (one hopes) a good deal of time and effort in you as an organisation? And replacing your employer hat with your employee hat for a moment, is this any more than you would expect from the organisation as and when it wanted to address perceived issues with you?

Of course, how you go about complying with the legal requirements will depend a huge amount on what I said earlier about your choice of lawyer, what you do with his or her advice and the nature of the relationship you have with him or her. Taking the TUPE example, one approach (which you can get pretty much off the peg from a law firm) is a consultation exercise framed precisely around the legislation which looks like, feels like and is nothing more than an exercise in legal compliance. A more mature approach would be to take on board the need to tick the legal boxes but to do so as part of a wider exercise in onboarding and integrating staff, combining legal consultation with induction, with internal PR and all the stuff you want to be telling people about what is going on.

Another attitudinal issue concerns the approach taken to conflict. When an employee raises a concern, a grievance, how do you react? If the response is to turn the issue straight over to the lawyers to prepare a detailed rebuttal of the allegations raised then the whole purpose of the grievance process is lost. What was intended as an informal internal process to try to resolve problems pragmatically immediately becomes an adversarial legal battle and there is rarely more than one place that is headed. Most grievance policies have lovely wording introducing the policy as to its purpose, the commitment of the employer objectively and fairly to consider the issues raised and to work with the employee raising the grievance to resolve the issue. How often is that done in practice? As one claimant lawyer friend of mine put it recently, “will it ever come about that I help a client put together a grievance and the employer upholds even part of it?”

If a client were to complain about something most organisations would want to investigate fully, address concerns, correct procedures and give the client a full explanation for what had happened, a commitment to put right anything that had gone wrong and some kind of recognition (whether compensation or something else) if mistakes had been made. Why is this not the case when an employee complains?

Of course there are grievances which are baseless, just as there are client complaints that have no merit. Those have to be investigated but treated accordingly. In most cases however, there is something behind the grievance, even if nothing more than a cry for help. It takes some courage for an employee to put in a grievance and if they are saying that from their perspective something is seriously wrong then that may well be the case and the sheer fact they are saying so merits concern. Too often any investigation will take the side of the employer in any area of doubt and the grieving employee will have to surmount a huge burden of proof before the employer will accept something is wrong. If the investigation was more open minded, less defensive, then it might be easier to acknowledge that there may be cause for concern, that certain conduct may have been wrong, may have been interpreted badly, that some intervention (a quiet word, some training or whatever else) is appropriate. And very often that would be an end to the matter. The grieving employee is satisfied and able to carry on working, the organisation and any individual implicated will have learned an important lesson and the workplace can be improved for the future as a result with gains for everyone.

Finally, employing people is risky but those risks are far from purely those relating to the employment rights of the employee. There are financial costs in terms of the salary and other direct costs, recruitment and training time, risks around what the employee does, risks to the culture and values of the organisation, reputational risks and many more besides. If you conduct your relationship with an employee solely in the context of the legal risks around their particular employment rights, then this will inevitably be out of balance and will not help anyone (save perhaps the lawyers).

As with much else around this area, this does not sound like rocket science. And let’s face it, the law is there and is not going away so better to accept it and work within it than fight against it or, worse still, ignore it and hope it will go away.

This article first appeared at www.hrmaturity.com