Header graphic for print

Employment Law Worldview

Form or substance? – the relevance of grammar in recruitment

By David Whincup, London on Posted in Hiring

Reports on the BBC News On-Line last week suggest another “return to old fashioned values”, the Government’s stock response when all else fails.   This time it is in relation to teaching English grammar at primary school, the first time in a while that such focus has been placed on this foundation of the language at that level.

Top marks, in my view.  I cannot be alone among employers in grinding what’s left of my teeth through the stilted prose of hundreds of job applications, each doing its own small violence to the English language – “like” instead of “as if”, nouns wavering about uncertainty between singular and plural, “people that …” instead of “people who …”, adjectives as adverbs, etc.

I hear all those cries that it does not matter so long as you can understand what it means and that language has always evolved and always will.  No doubt Shakespeare took many liberties with the English of the early 1600′s, and so on.  Of course there is something in all those sentiments.  However, I am looking at a job application from someone who wishes to be a lawyer with this firm – someone who wants to impress me with his attention to detail, his ability to express himself clearly and his intelligence – and for the most part I am coming away unimpressed.  Am I wrong to think that this matters?  After all, the novelist Kurt Vonnegut Jr. advised people to avoid semi-colons altogether on the basis that “all they do is show you’ve been to college”.    Even if that were right, am I not entitled to want the firm’s clients to know that they are paying for that sort of quality?   For solicitors, as for many other professionals, good English should be as much a part of the uniform as the doctor’s white coat – not absolutely essential in a tight corner, but very reassuring the rest of the time.

So at the recruitment stage, can you use the grammar of the application as a filter?  Or do you just risk claims of age, race or disability discrimination instead?  It depends on the job.  Of course you should not let hiccups in grammar blind you to the merits of the rest of the application, especially where writing plays only a very small part in the role.   London Underground came unstuck in an indirect race discrimination claim many years ago by requiring job applicants to possess standards of English quite irrelevant to the requirements of a Tube driver, thereby statistically prejudicing those with some other native language.  Age is probably not an issue – a tendency to slovenly writing is in no sense the preserve of the young, however it may seem.

Absent that, however, scattering commas and apostrophes over your application as if by blunderbuss and including grammatical errors which would be perfectly obvious if the writer had just taken the time to read the form to himself even once, can certainly be a deal-breaker.  Remember that recruiters make judgments about candidates all the time for more or less superficial reasons, and basing such assessments on the use of language is at least a rationale more objective and more easily demonstrated than most.   But one small tip – if you do reject an application on that basis, do make that there are no errors at all in the letter telling the candidate of that decision!  Especially if the candidate is from a minority, any such carelessness on your part is a clear message to the Tribunal that you are not as bothered by these things as you have claimed, and therefore that the real reason for the rejection is potentially something more sinister and less lawful.

Henry Fowler, author of the Dictionary of Modern English Usage in 1926 (yes, I know, but it was at the time) wrote that those who neither knew nor cared what a split infinitive was “are the vast majority, and are a happy folk”, to be envied by the rest of us.  Apply that to grammatical niceties generally and that’s okay only if you are content with “Ignorance is bliss” as your company’s vision statement.   If you would prefer something a little more aspirational for your clients and workforce, however, then fear not – it seems that your hour is nigh.

“DSM-5 Anxiety” May Be New Disorder For Employers Trying To Navigate ADA

By Ryan A. Sobel on Posted in Discrimination

Last Friday, the American Psychiatric Association (APA) published the fifth edition of what is considered the “bible” for diagnosing mental disorders, the Diagnostic and Statistical Manual of Mental Disorders, or “DSM-5.”  While much of the DSM-5 reclassifies already-recognized disorders or fleshes out diagnostic criteria, the APA recognizes several new disorders that could make life even more difficult for employers that are still trying to get their arms around recently-expanded disability discrimination laws.

The ADA Amendments Act of 2008 (ADAAA), which became effective January 1, 2009, significantly broadened the definition of “disability” under the Americans with Disabilities Act of 1990 (ADA).  The implementing regulations from the Equal Employment Opportunity Commission (EEOC), published March 25, 2011, raised more questions than it answered regarding what mental impairments constitute a “disability,” and made it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.”  According to the EEOC, “[u]nder the ADAAA, the focus for establishing coverage is on how a person has been treated because of a . . . mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person’s impairment.”

  • Social (Pragmatic) Communication Disorder, a “persistent difficulty with verbal and nonverbal communication that cannot be explained by low cognitive ability,” is marked by “difficulty in the acquisition and use of spoken and written language as well as problems with inappropriate responses in conversation,” and can limit “occupational performance.”
  • Mild Neurocognitive Disorder “goes beyond normal issues of aging” and “describes a level of cognitive decline that requires compensatory strategies and accommodations to help maintain independence and perform activities of daily living.”

Additionally, the DSM-5 has flagged a potentially-new disorder for further psychiatric study, which could find its way into future DSM editions: Internet Use Disorder.  Yes, that’s right, Internet Use Disorder.  More commonly known as “Internet Addiction Disorder,” this problematic or pathological internet use could be linked to currently-recognized disorders such as depression, and may result in decreased work performance.

So is it time for employers to panic?  Not necessarily.  According to employment-law blog Law360, Chris Kuczynski, acting associate legal counsel for the EEOC, has stated that he expects most disability-discrimination charges to continue to involve previously-recognized conditions.  And the fact is, just because a disorder is recognized in the DSM does not mean it automatically meets the definition of “disability” under the ADA, even under the ADAAA-broadened definition.

But that won’t stop resourceful attorneys from trying out new disability theories based on the DSM-5—inevitably, an employee’s inappropriate workplace comment will be attributed to a newly-diagnosed “social communication disorder.”  It certainly will give some employers pause to consider the potential risk for an administrative charge before proceeding.  It also makes it that much more important for employers to communicate clear and comprehensive job duties and performance expectations.

Only time will tell whether “Employer DSM-5 Anxiety” finds its way into the DSM-6.

UK unpaid internships: new guidance from BIS

By Angus Ackroyd, London on Posted in Wage and Hour

The Department for Business, Innovation & Skills (BIS) has released new guidance as part of a “more aggressive” stance to tackle employers using unpaid interns to avoid the requirement to pay the national minimum wage.

According to The Guardian, the guidance has been issued to coincide with the end of the academic year, when students are expected to start hunting for work experience placements/ internships as they take their first tentative steps into the world of work.

The purpose of work experience and internships is to provide the opportunity to gain experience for a professional career over a limited period.  The focus should be “shadowing” work, not actually doing it.  However, a number of employers have been accused of getting this balance wrong.  An extreme example may be Goal.com, a football news website.  In December 2012, Goal admitted having 30 unpaid interns file its match reports and write content for its UK edition.  With only 22 “proper” employees, it is easy to see why the interns’ roles may be thought to go beyond shadowing.  HMRC is currently investigating the matter further.

The line between an intern on the one hand and an employee or worker entitled to the national minimum wage on the other is not always a clear one.  The guidance includes some useful examples of interns who should be paid the minimum wage, even where they are arguably not carrying out work!  These include:

  • where an intern is promised employment at the end of an internship (this is likely to be viewed as training as part of the employment); and
  • unspecified expenses, for example “travel expenses”, which are paid irrespective of whether the intern has incurred any travel costs (this is likely to be viewed as a financial reward for work done, and as such must comply with the national minimum wage).

It is difficult to see how the guidance supports a more “aggressive” position towards employers who misuse interns to avoid paying for work done.  This may just be wishful thinking and propaganda by BIS.  However, it is undoubtedly useful guidance both for potential interns, in order to understand their rights, and for employers considering how to structure their internship programmes.

Squire Sanders UK Business Immigration Breakfast Seminar

By Annabel Mace, London on Posted in Immigration, Seminars & Events

On 6 April 2013 new UK Immigration Rules put into place the changes outlined in an earlier Home Office Statement of Intent affecting the Points Based System.

This seminar (commencing at 9.00 am) will provide an overview of what the new rules mean for Sponsor Licence holders, with an in-depth look at the different restrictions which employers will need to take into consideration when recruiting migrant staff under Tier 2 General and Intra-Company Transfer.

Join us in our London office on 18 June when Annabel Mace, Supinder Sian, Kate Gamester and Shanti Faiia from Squire Sanders’ UK Business Immigration team will consider the practical implications of the new Immigration Rules, including changes to:

  • the list of skilled occupations
  • salary requirements
  • the Resident Labour Market Test
  • cooling-off periods

This seminar (for which there is no charge to attend) is suitable for HR professionals within organisations that hold a Tier 2 Sponsor Licence and other professionals who have, or will have, responsibility for managing sponsored migrant staff.

The seminar will last approximately 90 minutes.

Registration

Online registration is now available.

Questions?

For questions related to the event, please contact Kirsty Tod at +44.20.7655.1789.

RESILIERE: “to leap or spring back”

By David Whincup, London on Posted in Leave

It is not news that stress is a leading cause of ill health, absence and spiraling healthcare costs in both the NHS and the private sector. Research conducted by QCG Consulting found that work-related stress has increased over the last 2-3 years suggesting that in 2011/12 of 27 million days lost to sickness, nearly 23 million were for work-related stress.  The actual figures could be higher as stress is amongst employees who worry that acknowledging it risks their job security.

An increase in work related stress is probably an inevitable consequence of the cost cutting measures that businesses have had to implement in recent years. All employers and HR Directors want a fully engaged staff performing at their peak and ready to face challenges when the going gets tough.  But do you know the scale of stress in your own workforce?  How would you feel about asking them?  Would you introduce a specific measure such as a stress audit?

The 2012 “Health and Wellbeing Supplement” of HR Magazine discussed how resilience to stress can be nurtured to face the manifold challenges in our modern lifestyle. Personal resilience is clearly an important issue and there can’t be a ‘one-size-fits-all’ approach because everyone reacts differently to different problems. We all know of cases where previously resilient managers have suffered from a reduced ability to cope at work due to family changes or have had difficulties at home during organisational change.

An element of stress or pressure can be described as enjoyable or motivational for some but it is bad news for all of us when not properly managed. Anyone who has been subject to chronic stress or has a physical condition that can worsen during stress, knows it can take a toll on emotions.  This will affect our ability to think clearly, our memory and ultimately our performance and lifestyle.

Atrium Synergies recently asked the HR Director of Legal and General about awareness within large corporations of the importance of developing a level of personal resilience among the workforce, with this response:

“Trying to tackle personal resilience on its own is new. People reactively do stress management. They also focus on giving managers skills and techniques for performing well. But it’s all about how we do our jobs better rather than focusing on the individual. So the idea about personal resilience is not new but it doesn’t fit one of the traditional interventions. When we’ve got a problem we reach out for a solution. But using it to prevent a problem or just enhance performance is not common.  

Stress is such a loaded term that still today most managers won’t use it, but come on, who can honestly say they never suffer from stress, they never hunch or lean over their keyboard”. 

Despite the potential cost of stress to an organisation (there are varying views on the actual cost to UK industry, the QCG survey putting it at £3.7billion), how many companies have a budget available specifically to support a policy on the prevention of stress? Work-related stress is often only measured once it has become an issue and a significant cost.  However we are seeing that the return on investment for pre-emptive resilience programmes is increasing with each report.

There is a buzz about the word “resilience” right now and there is just one question that every organisation needs to consider: “How well are your employees able to spring back from a disappointment or reversal?”  I’m going to be contributing some more original blogs on Stress and Resilience for Squire Sanders so would like to hear what you think and feel on this topic.

Atrium Synergies is a coaching and consultancy business specializing in performance enhancement and personal resilience for corporate clients and individuals.   To illustrate how matters of personal resilience can successfully be brought into the workplace as part of your broader duties of care to your staff and your business, Atrium Synergies and Squire Sanders will be hosting an event on the topic later this year. To register your interest please email us on events@squiresanders.com.

When managers bite back – even obvious grounds for dismissal require fair process

By David Regan, London on Posted in Misconduct

Every morning I get the Times on my iPad.  By the time I’ve eaten my breakfast, I’ve read the Sport section and can then use my train journey to look at the rest without having to master the “commuter fold”.  Usually the Times tends towards a sombre recording of events, reporting even the most salacious stories in the sort of faintly disapproving tone that reminds you of a prep school teacher faced with a joke he should not find remotely funny but actually does.  However, last week, one headline caught my eye – “Suspension the bottom line for manager accused of bite”.

This headline (changed later in the online version to “Female Council boss suspended ‘for biting male worker’s bottom’ ” – what did I say about the Times’ tone?) led off with the paragraph “A woman council manager has been suspended after claims that she bit a male colleague’s bottom so hard that he bled.  The incident…was said to be one of a series of office pranks that got out of hand.”  Out of hand?  Surely not.  The article then proffered the information that the male employee had been taken to hospital for a tetanus jab “as a precaution”, presumably against the manager being rabid not just behaviourally but also medically.

Aside from a few cheap laughs at the poor victim’s expense, what does this incident have to do with employment law?  Well, you may question why the manager was only suspended, as opposed to immediately sacked.  The bottom line is that it is always important for employers to ensure that they have the full facts before acting.  If the employer had been over-zealous, taken the bit between its teeth and simply sacked the manager without an investigation, this may not have been fair and the employee may have had a claim for unfair dismissal, particularly given the history of lesser pranks in the department seemingly going unpunished.

So, how to avoid ending up as a newspaper headline?  Firstly, have a robust handbook and policies in place – having fun at work is fine, but employees should know where the line is.  That said, it is hard to believe that a Tribunal would be too hard on an employer which had inexplicably omitted reference to biting your colleagues as unacceptable behaviour.  Secondly, enforce that handbook and those policies – it’s no good having a policy that looks great on paper but which is never enforced in practice, as you will not be able to rely upon it when you need to.  Thirdly, remember that the test for whether or not a dismissal is fair requires you to conduct a reasonable investigation – in this case, that may simply be asking witnesses “Did the manager bite her employee on the bottom?” (and as a last resort, “If she didn’t, who did?”).   [I am assuming here that the existence of the injury was taken as read without the need for inspection].  Finally, if you ever have to ask that question (do try not to laugh when doing so) and the answer is “yes”, then it’s probably fair to consider dismissal as a likely sanction.  The point is simply that however obvious the grounds appear to be, you cannot simply leap to that point.  The manager’s defence in this case would have to be a thing of beauty indeed – provocation? self-defence? automatism? – but she must still be given the chance to run it before a final decision is seen to be made.

Webinar: ‘Spotlight on Key Labour and Employment Issues – Germany’

By Robert Davies on Posted in Webinars

Squire Sanders presents a series of webinars focussing on the key labour and employment issues in various countries throughout Europe, Asia Pacific and the United States.

On 22 May 2013 at 5.00 pm CEST (11.00 am EDT, 3.00 pm GMT, 4.00 pm BST (UK)), the featured country is Germany.  Martin Falke and Nico Jaenicke from Squire Sanders’ Berlin office will focus on some of the important issues facing employers in Germany when seeking to reduce their workforces. The discussion will feature:

  • the timeframe for making reductions.
  • the role of works councils and the unions.
  • calculating redundancy costs.
  • how to correctly terminate employees, including compliance with the Dismissal Protection Act and other legal requirements, notice periods, special dismissal protection, and dealing with termination litigation.

The main webinar presentation will last 45 minutes, followed by a 15 minute question and answer session.  It will be conducted in English.

Register

Variety no Longer the Spice of Life for Mel B

By Dominique Hartfield on Posted in Employment Contracts

 In a recent New South Wales decision, the Supreme Court of Australia found that television company Seven Network (Operations) Limited (Seven) was entitled to final injunctive relief against UK former Spice Girl Mel B(rown), who sought to work on a competing television talent program in breach of her contract to provide exclusive services to Seven in Australia on the X Factor.

Seven argued that it had exercised an option in Mel B’s contract, under which she was committed to provide her exclusive services to Seven until 31 January 2014.  However, it allowed her to provide these services in a more limited form after learning that her children’s visa issues would affect her ability to remain in Australia for the extended period required for the filming of the series.

Mel B, in move ironically reflective of her lyric, ‘Yo, I’ll tell you want I want, what I really, really want’, sought to walk away from her obligations to Seven and through her husband’s management company entered into a written agreement with rival network Nine to act instead as a celebrity judge on Australia’s Got Talent in 2013.  Mel B argued that following discussions between her husband and Seven’s Director of Production:

  • there was no promise to extend the agreement; and
  • even if there was, as a result of various exchanges in February 2013 it had been terminated or discharged; or
  • if it had not been terminated/discharged, the agreement was a restraint of trade and so unenforceable.

Seven was successful in the first round of judging by the Court, obtaining an Order restraining Mel B and her husband’s company from performing any agreement with any person other than Seven for her to appear on television in Australia at any time before 31 January 2014.

In the Grand Final hearing for a permanent injunction for the term, Mel B was told to ‘Stop right now, thank you very much’.  The Court found there was no evidence of a release of obligations and the agreement had not been terminated.  Further, there was a binding agreement based on terms which went no further than to release Mel B from physically coming to Australia to perform the role as originally contemplated before the visa issues arose, and did not extend to permitting her to engage in television work in Australia other than via Seven.  The Court found the proposition that this limited agreement was a restraint of trade to be untenable. Hammerschlag J found that were Mel B to perform under the agreement, Seven would be obliged (and it had expressed a willingness to) pay her in accordance with the contract.  However, if Mel B was not ready and willing to perform she was not entitled to remuneration under the contract.  “It is all in her own hands”, he said, with some understatement.

This decision confirms the importance of including well drafted exclusive service clauses in contracts to prevent key personnel from being poached or developing conflicting interests which compromise or prevent the performance of their duties during the contract term, particularly in competitive industries.  While this case involved a contract for service, the case also has application to employment contracts.  Although every employee in Australia is subject to the common law duty of fidelity, it is recommended that employment contracts give this duty express contractual force by including an exclusive service clause.  Similarly the written contract here was slowly buried under a pile of oral and email “clarifications” and misunderstandings, caused by the failure of both parties, Seven in particular, to keep their eye on the ball and to keep reiterating the key points – that if Mel B were going to be on television in Australia, it could only be via Seven.  In the end, Seven got to lift the big prize (ensuring that Mel B did not appear on any Australian television variety show unless one of its own) but only at very significant cost and uncertainty all round.  People say that lawyers’ insistence on reducing obvious points to writing in employment and consultancy contracts is unnecessary.  Here is proof positive that when counter-allegations and real or engineered “miscommunications” are in play, nothing beats a decent document.

Fraud, Bribery and Corruption – Just Another Day in the Office

By David Whincup, London on Posted in Employment Policies, Misconduct

Are you the person responsible for compliance with the UK’s Bribery Act 2010 in your office?  If so, you might not want to read this.  Just step away from your screen and whistle a happy tune, and that way you will never see the results of the annual fraud survey published by Ernst & Young earlier this week.  There, isn’t that better?

If you are still reading, then it is grim news indeed.   Of the 3,459 survey respondents, 48% admitted that they saw offering cash, entertainment or personal gifts and services to win or retain clients as justifiable, and/or that it was acceptable to misrepresent deliberately a company’s financial performance.   Okay, you may say, but they must surely all be low-level cannon fodder of the sort that has always flirted with moral or legal sharp practice and always will?  Sadly not – many employees at board and senior management level admitted that sales or costs numbers had been “manipulated” in their employer.  Even if that is not in all cases strictly unlawful – the equivalent of the difference between tax avoidance and tax evasion, for example – you have to balance that against the likelihood that anyone asked to tell a major accounting firm about their own financial malpractice is likely to understate it, rather than not.

The survey makes particularly painful reading for multinational companies with actual or proposed operations in the emerging markets – nearly twice as many employees there saw bribery and corruption as normal than in the developed countries.  In Kenya, for example, there were only a very few employees canvassed who did not see them as routine business strategies.  Since the Bribery Act has extra-territorial reach, special care to put in place the “adequate procedures” (preventative measures) required by section 7 of the Act is obviously required where the risk of conduct offending the law is so high and so overt.

Then we get to the question not of complex webs of corruption but of good old self-serving dishonesty for personal gain.   54% of survey respondents in India thought that the financial performance of their subsidiary was exaggerated in reports to HQ, with Russia a little way ahead (behind ? – not sure that this is a good table to do well in) at 61% and Nigeria at 68%.  The report puts a clear message to the parent companies of such operations – “These businesses have good reason to look critically at what is being reported back to the centre from other jurisdictions,” it warns.

And to conclude, the survey report fixes on the single most likely cause of all this: “Typical remuneration mechanisms are likely to encourage the unethical choice; employees rarely get a pay rise or promotion simply for complying with policy“. Overall, one in six employees surveyed believed that following their employer’s compliance policies to the letter would hamper competitiveness, so when you are compiling your suite of adequate anti-bribery procedures to comply with section 7, do be sure to give some visible thought to rewarding behaviours as well as results.

Bullying Managers must be told their behaviour is unacceptable AND that it could lead to dismissal

By Elissa Thursfield, Manchester on Posted in Misconduct, Termination

The EAT recently reiterated the importance of a well worded warning in JJ Food Service Limited v Kefil, providing a clear and rather depressing reminder of the importance of not taking for granted the knowledge of management in disciplinary proceedings.

Mr Kefil was described as overly authoritarian manager who relied on bullying and intimidating behaviour.  It was accepted by the Tribunal that any constructive dismissal claim by one of his long- suffering employees would have been difficult to defend, and that they had been subjected to bullying, unlawful discrimination, harassment and threatening behaviour.  Even violence was alluded to. His behaviour was so bad that his workers collectively signed a letter of complaint against him.  His employer warned him about this, making it clear that his behaviour was unacceptable.  He did not respond as hoped for to this warning (or at all, really) and was dismissed.

The Employment Tribunal found that dismissal, despite the incontrovertible awfulness of his conduct, to be unfair.  It took the view that although Mr Kefil had had a shot across the bows in relation to his management style, JJ Food Service was at fault because it had not told him in terms that a continuation of his behaviour would lead to his dismissal.  That meant that at the vital moment, termination fell outside the range of reasonable responses, so making it unfair.

The employer claimed that a man in Mr Kefil’s position should have known full well that his behaviour was unacceptable and that the warning he was given was sufficient, that he ought to have known that if he continued he would be dismissed. The EAT was sympathetic but not wholly convinced.  Mr Kefil had not been trained to manage and therefore could not be expected to know that he could be dismissed, even though he had been warned formally and informally about his behaviour several times and had been a manager for a number of years.   This was clearly a case that the EAT, left to its own devices, would have decided the other way.  But its powers are limited to correcting errors of law, and although the Tribunal’s decision was rather odd, it was not so inexplicable as to become perverse and therefore appealable.

So the lesson to be learned? It would be hoped that managers don’t need to be taught that it is unacceptable to threaten their workers, bully them and subject them to intimidating behaviour, but had this been the case for the employer here, the result could have been very different.   So warnings should be clear, in writing and set out the consequences of a failure to heed them. It is a sad day when people who have been managers for years can still claim that they are entitled to continue objectively unacceptable behaviours until told that they are for the high jump if they do, but that is the conclusion here.  It is also a sad day when a Tribunal holds against an employer its failure to train a manager formally that bullying, harassment, threats and discrimination are not best practice.  Come on, really?