Have you got the knowledge?On 1 Jan 2001 in Personnel Today Trainingprofessionals need to take a firm grasp of the knowledge management reinsTrainingprofessionals could be forgiven for getting a feeling of déjà vu, when theyhear the phrase “knowledge management”. Is there really any difference between whatwe now call KM and what a few years ago we described with missionary zeal as“becoming a learning organisation”?No,suggests Christine Evans, an associate at the Roffey Park Institute, whosereport, Developing a Knowledge Creating Culture, was published last summer.“The learning organisation never really took off because it was perceived as ahuman resources need, not a business need. But KM is perceived as a businessneed,” Evans says.Butdon’t despair, and don’t dismiss knowledge management as an IT project orsomething for strategists. IT folk are slowly losing their grip on KM andlearning is now an integral part – which means training managers have to gettheir oar in.Furthermore,experts advise that such projects don’t work if they are left to technicalenthusiasts alone. “The project team should include people from a range ofbackgrounds. It should include marketing, IT, learning and HR people,” Evanssays.Knowledgemanagement is essentially the creating, capturing and sharing of information.On the one hand there is all the explicit information, such as how systemswork, technical and skills knowledge, which can be contained within manuals anddirectories. But beyond that there is the push to capture an organisation’s“tacit” knowledge – the mass of its experience.Muchof the push to set up a knowledge management system has come out of thedownsizing and delayering of the past 15 years. The speed of change, the needto react swiftly to market conditions and competition for scarce skills has putfurther pressure on the need to keep hold of the knowledge base. At the sametime, the development of the Internet and intranets has provided a powerfulsolution.HumancontactButas firms develop their KM systems it is clear that it is not just about databanksand document retrieval. IBM has a fairly well-developed knowledge managementsystem based on levels of knowledge sharing. Much of it does go on via e-mail,says senior consultant in knowledge management at IBM Mark Watkinson, but ithas not, contrary to original expectations eradicated the human contact. “Itdoesn’t all go on over the Internet and there will always be an element ofintervention,” he says.Sowhat can training offer the KM project? To start with there are the basicskills needed to operate the system. This does not just mean technical skillsthat go with a particular piece of software, says head of organisationallearning at BT Marc Auckland. There are other skills implicit in the knowledgeeconomy, such as presentation, managing relationships, networking and otherinterpersonal skills that make the system come alive.Inaddition there is a massive editing job needed on the information that gets onto the KM system – which would benefit from some of the skills of the trainingmanager. Stephen Carlin is business consultant, people and knowledge, at Meta4,a software supplier that is linking its KM systems in with personnel. Carlinhighlights two levels of editing.Thefirst level is basically translating some of the explicit, technical knowledgeinto a document that non-techies will read and understand. InformationoverloadOna more strategic level there is the issue of deciding what an organisationneeds to know and so what goes into the knowledge depository. “There is aserious danger of information overload if there is no editorial control in theKM system,” Carlin says. He argues that an organisation will have more successif it e-mails staff several well-edited documents with the essentialinformation.Linkedto this is the issue of how information or knowledge is delivered. This isabsolutely in the training arena. Training specialists have spent yearsanalysing how people learn and how they retain information in a way that theycan use it. Now is the time to make the most of that experience. As Evanspoints out, trainers “are the experts in enabling learning”.Thisprocess is also about harnessing KM to meet your ends as a trainer. At IBM, forexample, Mark Watkinson says e-learning is very much part of the knowledgemanagement system – an important mechanism for delivering information andskills to the workforce.Buttake care, warns Paul English, head of marketing at e-learning supplierFuturemedia. There are plenty of products on the market, but no one has reallycreated the interface between e-learning and knowledge management systems. “People won’t genuinely be doing this until2002-3,” English estimates.SharingcultureFinally,training has a crucial role to play in terms of the cultural change that isimplicit in knowledge management. As Stephen Carlin points out, knowledge ispower and if you are asking people to share it, you need to create a sharingculture. This has huge implications for your management and communications aswell as reward systems. Training has to be in there with a strategy using alltheir own explicit and tacit knowledge about management and team development.Butbefore you go knocking on the chief knowledge officer’s door, make sure youknow that whatever you are offering is linked to a cultural change strategy.Whyyou need the know-how–Training professionals are driving the dialogue around capabilities,competencies and performance. KM represents an extended dimension to this. –As we shift from classroom-based training towards broader models of learning,the knowledge transfer aspects of KM must be integral to learning delivery, anddeveloped within the extended frameworks of eLearning and e-HR.–Technology approaches to support KM and those to support learning are closelyrelated. –In a market where companies are differentiated by their knowledge workers, HRand training must embrace a larger role. Competency-based assessments and staffdevelopment are part of a broader move towards performance-centric working. KMprovides a set of tools to accelerate this shift and manage its outcomes.Compiledwith the help of David Wilson, managing director of eLearnity Previous Article Next Article Related posts:No related photos. Comments are closed.
Previous Article Next Article Related posts:No related photos. Comments are closed. Report aims to reduce risks from chemicalsOn 1 Mar 2001 in Personnel Today A report setting out a programme to explore new ways in which the risks topeople’s health from chemicals can be reduced has been published by thegovernment. The study looks at how the assessment of human exposure to chemicals can beimproved and offers models to get a better estimate of risks. It has been produced by, and is available from, the Interdepartmental Groupon Health Risks from Chemicals. The report sets out what has been done so far, and what the group’s plansare for the next two years. www.le.ac.uk/ieh
Previous Article Next Article This week’s guruOch no, just checking ma loose changePersonnel director of Corus Allan Johnston was obviously trying to put adifficult few months of redundancy consultation behind him as a delegate on theannual HR jamboree aboard the P&0 flagship, the Oriana. He donned full Scottish regalia – a striking tartan kilt – and drowned hissorrows at the bar until 2am. In trying to pay for drinks, he surprised the waiters when he rummagedaround in his sporran for his credit card. One of his managers at the steelworks in Newport, South Wales, could have donewith a protective sporran. David Horne was zapped in the testicles with a stungun after he told an employee off for sloppy work. Horne clenched his teeth sohard he later needed dental treatment. The father-and-son assailants pleaded guilty in a Cardiff court to theattack.War of words in numbers game Unpopularity is often a hallmark of being a chief executive but Camelot’schief Dianne Thompson has taken it to a new level. She told the 450 HR professionals on the Oriana that after successfullybidding to become the Lottery operator for a second term she started to receivehate mail. One accused her of being a greedy fat cow who should work for nothing,adding that although it was the season of goodwill he wished a plague andpestilence on her. It all came to a head during the recent scandal over the lost Lotteryticket. Thompson was on a treadmill in her gymnasium when she spotted a fellowgym user reading the front page of the Daily Mirror. It showed Thompson wearinga Victorian skullcap with the headline “Mrs Scrooge”. Ah, the joys ofsuccess. High rollers on the high seas E-technology, work culture, staff motivation and effective communicationwere the serious issues of the day on the Oriana. But at one of the tables in the ship’s Oriental Restaurant diners were moreconcerned about how many HR professionals would wear glasses to dinner, howmany would injure themselves on the dance floor and which Beatles hit the bandwould play first. If it moved, the MD and director of one HR IT solutions company would bet onit. The wager? The loser had to drive the other home – not an easy taskconsidering the size of their hangovers. Wanted: school-leaver for dogsbody E-recruitment might be all the rage but sometimes it can make a dog’s dinnerof it. Mike Johnson, author of Winning the People War, told delegates on theOriana that one company managed to offer a job to a 12-year-old schoolboy. Hismother informed the company that he couldn’t come to work that day because hehad a maths test at school. In another case, a headhunter attempted to recruit a dog called Neville.Quite how Neville managed to use a PC is uncertain. His career was short-livedand the office yucca plant has never been recovered. Neville should go to Denmark, where a company called DMZ employs a dog inits reception. When staff feel the urge they can take it for a walk. Comments are closed. GuruOn 15 May 2001 in Personnel Today Related posts:No related photos.
Comments are closed. This week’s guruAmericans shocked at Geneva conventionSo, just as Personnel Today predicted, that slow moving European juggernauton staff consultation was finally agreed. At least now the CBI will have tocome up with a strategy that goes beyond blank denial. But if the CBI is having difficulty coming to terms with it, then UScompanies operating in Europe haven’t got a chance. At a roof-top drinks do in the City, an American chum of Guru’s explainedthat US companies rarely realise the staff responsibilities that come withhaving a European presence. As a legal type he has attempted to warn more thanone American CEO about the dangers of opening a European HQ in Geneva for taxpurposes. “What!” screamed one in his ear, “When I make themredundant after six months, I’ve got to tell them first and pay them a year’ssalary. That’s crazy!” Still seeking the perfect 10 It is not just footballers who deal in clichés. Guru was introduced to lingobingo the other day. Each player gets a card with 10 of the best-loved businessclichés on it. To win you simply have to guess the corporate-speak on otherpeople’s cards. Included in Guru’s list was “Singing from the same hymn sheet, movingthe goalposts, win-win situation, who’s in control of the dancefloor, touchbase, I’ll see if I have a window, it’s a no-brainer, do we have closure?,hyperarchy, step-change, leverage our position, edutainment and learningorganisation”. Unfortunately, Guru lost abysmally to a go-getting consultant in changemanagement who rattled them out like a machine gun. Can anybody come up with a better list of 10? It’s pants when you’re on parade Guru was relieved to hear that Mickey and Minnie Mouse have won the right towear their own clean underwear. Staff who play the cartoon characters at Walt Disney World, Florida, were forcedto wear company-issued jock straps and tights beneath the costumes becausenormal underwear has a tendency to bunch and be visible. But staff complained that the underwear was not cleaned properly, afterseveral caught pubic lice and scabies. Pluto and the gang will now get pantsthey can take home each night and clean themselves, and they’ll all livehappily ever after (except the lice). Will it be chicken feed if they sue?Guru is calling for all disciples to stop taking the rise out ofvegetarians. Not only is it unfair to call them “sandal-wearinglefties”, but it might drop you in the soup (leek and potato, of course).A leading vegan organisation is calling on its members to use the Human RightsAct to defend themselves against discrimination. London Vegans is also demanding that employers treat vegetarianism as areligion. A spokesman said, “We will use the Human Rights Act if we arediscriminated against at work. You can get quite harassed if you are a vegan.”Well, for one Guru has never abused the resident tree-hugging hippy in hisoffice, and he always eats his veal sandwich discreetly. Previous Article Next Article Related posts:No related photos. Americans shocked at Geneva conventionOn 19 Jun 2001 in Personnel Today
Previous Article Next Article S & N R’s Kim Parish has won a seat on the company’s board and israpidly becoming a national voice for people development issues. By LucieCarringtonKim Parish, HR director for Scottish and Newcastle Retail has just joinedthat rare breed of personnel professionals who have made it to the board. Butshe’s even rarer than most, for Parish forged a successful career in training,in and outside S&NR, before becoming a personnel supremo.”It’s a travesty that there aren’t more training people reaching thetop HR jobs, because it’s through delivery of training and development that wecan make the biggest commercial impact on a business,” Parish says.”And the best training people have a business edge to them.”In her current job, Parish is responsible for personnel strategy across the2,300 pubs, bars, restaurants and hotels that make up the retail division ofScottish and Newcastle, with its 45,000 employees.Her promotion to the board is partly the result of a massive upheaval in thebusiness. At the beginning of the year, S&NR announced that it would sell off 642of its smaller local pubs. The sale went through in June and has left S&NRoperating at the top end of the market with an average turnover of £12,000 aweek for each unit, up from £8,000 a week.People are important”By putting a dedicated HR professional on the board, we were sayingthat people are important,” Parish says.Her primary task now will be to help consolidate the restructured business.As far as training goes, she knows that the firm is in a fairly strongposition. “For the past eight or nine years, we have had in the business somevery clear planks and philosophies that have not changed. They have been therefor so long that people don’t question them any more,” Parish says. These philosophies include commitments to career-led training anddevelopment from within, to competencies and to internal training anddevelopment solutions. Controlling costs When the reorganisation was completed at the end of February, seniormanagers decided that the units about to be sold would not be able to embark onany new NVQs or modern apprenticeships. Like any firm about to sell off abusiness, it wanted to concentrate on controlling costs. But there was a backlash from unit managers who insisted training shouldcontinue. It was important to them and how they viewed their jobs as unitmanagers. “As a result, we saw an increase in training activity,” Parishsays. “It’s taken a while, but this showed that within the business, thereis a commitment to training from grass roots.” The disposal should make it easier to maintain this culture because S&NRis now a smaller, more focused business. But it’s not there yet, Parish points out, and like its competitors in thebar trade, it has the problem of combining brand-needs with the centralstrategy. S&NR’s approach to the problem is a mixture of structural and tactical.On a structural level, HR professionals, including training experts, have botha professional specialism and a brand or business role. They report directlyinto their business with a dotted line to Parish and her head office team. “That helps us to be sure that both the divisional and business levelinterests are being met,” she says. Tactically, some training is devised and delivered centrally and some isdelivered locally. But there is a strong emphasis on giving centralisedtraining a strong local branding. Parish cites a fairly recent revamp of bar staff training as an example ofthis. Business managers decided they wanted the training to be customised totheir brands, but Parish disagreed. She and her training colleagues got round the problem by having fourversions of the same programme that individual businesses could own. “Itwas a simple solution to what could have become a nightmare,” Parish says.Unusual career path Parish’s profile, both internally and externally, has almost inevitablycontributed to her rise to board-level director. Internally, she has made some fairly unusual career decisions – for example,moving from management development to business development, and then, a fewyears later, combining the training portfolio with compensation and benefits –usually regarded as “nerds’ corner” in personnel. Outside S&NR, Parish has taken on some fairly big roles in trainingorganisations such as City and Guilds, where she is a national councillor, andthe Hospitality Training Foundation, where she sits on a couple of committees. More recently, she has become the only HR professional to be involvedformally in the national Learning and Skills Council as a member of its youngpeople’s committee. “I believe, and S&NR believes, that as a large company in thissector we should take a broader role. It’s a fragmented sector and we haveresponsibility for improving its image,” Parish says. “We also know from experience that we have the ability to influencepolicy at a most senior level in government if we are prepared to stay informedand get involved.” It’s pretty good for Parish’s own personal development. “It’sstimulating and interesting and you can develop networks and learn about otherways of doing things,” she says. The importance of being in the policy loop is obvious when it comes toapplying NVQs and Modern Apprenticeships to the business. S&NR was one ofthe first firms in the sector to pilot NVQs and MAs, but Parish is concernednow that they are not what the business needs. The MA framework is still firstclass and can continue to deliver somestunning successes, Parish says. But, like other employers, she is worriedabout the impact of recent changes, including the introduction of technicalcertificates and key skills. She believes it is an attempt to impose aninappropriate academic model on workplace training. Getting concerns heard Rather than just bleating on about it, Parish is using her connections withCity & Guilds and the HTF to get S&NR’s concerns heard and keep her earto the ground. She smells success in the air. “There are some indications that theGovernment’s approach is changing and there is a recognition that you can’tdeliver vocational qualifications against an academic framework,” shesays. She is less optimistic about the future of NVQs at S&NR. The businesshas been offering them to staff since 1992/93 and up until the late 1990sParish says they were a good way of showing the wider world that it was abusiness where people could gain accredited training and a career. It was also a way of getting managers to monitor and record training anddevelopment activity to a given standard. “We got a lot of benefits from NVQs in terms of a commitment totraining,” Parish says. But things are changing, and S&NR is in the process of rethinking itsNVQ strategy. “Part of our rationale is that we can deliver somethingbetter internally that is not based on NVQs,” Parish says. Various changes in the business are driving her thinking. To start with,there is fallout from the National Minimum Wage. When it was introduced in 1999, it included an accreditation rate of £3.20an hour for employees who were given the opportunity to acquire NVQs and otherrecognised qualifications. “We believed in the accreditation rate as a way of drivingqualifications in our sector,” Parish says. But their competitors disagreed and offered the full minimum wage. Theaccreditation rate became devalued and instead of being seen as part of acareer path, became regarded as a way for firms to avoid paying the minimumrate. The knock-on effect was that the take-up of NVQs dropped as staff optedfor higher pay instead of training. NVQs were further diluted with the acquisition of the Greenalls estate in1999. Greenalls had not had a very good experience with NVQs, says Parish. Lower profile In addition, Parish feels that the profile of NVQs has dropped. TheGovernment does not seem really committed to them. “I don’t get anysignals that they are at the top of the agenda. I rarely hear people talk nowabout the contribution NVQs make to the economy,” she says. But the real clincher is the drive to push customer service standards everupwards. “In our sector and business, customers are increasingly demandingbetter service and becoming much more articulate about requesting it,”Parish says. “Local community pubs have a loyal customer base, but tradingin the high street is much more fickle.” NVQs don’t provide for this. Parish says, “They deliver competencies ina narrow framework, but that is not what we need in terms of improved customerservice, which is much more about behaviour.” One solution is to divide the workforce into two groups – those who justwant a job and those who want a career. In the meantime, Parish has had some tentative discussions with City &Guilds and the HTF about how to make NVQs more appropriate. S&NR is a long way off ditching NVQs and if it ever happens it will be aboard-level decision. “We are still halfway through the decision-making process,” Parishsays, but she admits to thinking that maybe NVQs have had their time. Career to dateApril 2001 Joined the S&NR board1998 HR director1994 Management development and training director1992 Business development director1991 Joined S&NR as management development directorEarly career with New Zealand employment department, Sutcliffe Cateringand the Hospitality Training Foundation Measures of successOn 1 Sep 2001 in Personnel Today Comments are closed. Related posts:No related photos.
Previous Article Next Article Comments are closed. Related posts:No related photos. Personnel Today presses for changeOn 18 Dec 2001 in Personnel Today Pushing for progress in HR, Personnel Today has taken a stand on issues thatwill make a difference to business and lobbied MPs for government actionTribunals Ground-breaking research by Personnel Today showed that human resourcesdepartments are increasingly under pressure because of a surge in employmentdisputes. Nearly half of respondents said they are more likely to settle out of courtsince the compensation limit was raised from £12,000 to £50,000 in 1999. The sum spent by the 137 companies surveyed on defending cases in tribunalswas at least £1.8m. Firms taking part in the research also paid out anestimated £700,000 on settling cases before they reached employment tribunals. In November, the Government set out new measures to try and reduce theburden on the tribunal system. The new Employment Bill – due to become law nextyear – includes the requirement for employers and staff to use internalgrievance procedures before going to tribunal. The Government also introduced afixed period of consultation and tough penalties for either party if they don’ttry conciliation first. Equal pay Personnel Today strongly supported the Equal Pay Task Force’s recommendationthat employers perform mandatory pay audits. We called for senior staff, linemanagers and employees to embrace the case for fair pay. The Government outlined proposals to streamline the tribunal system forequal pay claims, but claimed it wanted to adopt a voluntary approach tofurther measures to tackle the divide. It appointed the CompetitionCommission’s Denise Kingsmill to undertake a review of employers’ attitudes, toreport in December. This month the Government unveiled new proposals to cut the pay gapfollowing the review. They included the right for women to know what malecolleagues of the same level were earning and called for the publication of paydiversity in annual reports. More radical proposals were ignored, however, such as the overhaul of theInvestors in People kitemark to include sex inequality, a research centre forwomen in employment and public sector board pay being linked to diversitytargets. The CIPD warned that if employers don’t adopt a transparent approachvoluntarily then legislation could follow. Consultation The internal communication of heavy job losses at steel giant Corus and carmanufacturer Vauxhall earlier in the year received widespread criticism for anunsympathetic approach. Former Trade and Industry Secretary Stephen Byers announced a review ofemployers’ obligations to inform and consult staff over business restructuringin the UK. Personnel Today sent an open letter to the DTI to ensure that the views ofHR professionals would be included in the review. The profession was concernedthat the Government wanted a political quick-fix after bad publicity DTI minister Alan Johnson responded and promised a “thorough andwide-ranging review”. But the review was overtaken by events in Europe. In June, the UK Government was left isolated in its resistance to Brussels’Information and Consultation directive and it was eventually agreed that itwould become law. It will ensure that employers with more than 50 staff consult theirworkforce in detail about redundancies and mergers much earlier than is normalpractice in the UK or face harsh penalties. In October, MEPs pushed to make the directive’s implementation and penaltiesless flexible. It is due to be agreed this week. RefugeesPersonnel Today launched a campaign to help refugees andasylum-seekers into employment. Many organisations still face skills shortagesin key areas, and we felt it was in the interest of employers to be able torecruit staff from the widest possible pool. Despite refugees and many asylum-seekers having permission towork in the UK, they face barriers to finding work. Our campaign is aimed atpersuading the Government to do its part in removing those barriers. We set about finding examples of employers which have eitherfaced difficulties in recruiting refugees or are helping refugees into work.Personnel Today’s exclusive story on Oxford Bus Company’s inability to employtwo asylum-seekers because of DVLA red tape has since become a definitive casestudy.In November, the magazine published joint research with theRefugee Council that shows nine out of 10 employers want to take on refugeesand asylum-seekers to meet skills shortages. But many of the 255 employers areput off by red tape and legal fears. Over 60 per cent of the 153 refugees surveyed by PersonnelToday and the Refugee Council have been unemployed in the UK for more than ayear, despite many being well qualified and having work experience.Personnel Today has addressed leading conferences on itscampaign, and has been invited to make a presentation to the All PartyCommittee on Refugees in the House of Commons. We hope the Government will takeon board the campaign aims over the next year, starting with the White Paper onrefugees and asylum-seekers due to be published in January 2002. Personnel Today is asking theGovernment to:– Introduce a standard permission-to-work document for refugeesand asylum-seekers– Commit to cutting red tape for employers who want to employrefugees and asylum-seekers– Develop a skills database of immigrants in the UK– Produce concrete plans to co-ordinate the employment ofrefugees and asylum-seekers
Previous Article Next Article Case round upOn 1 Jul 2002 in Personnel Today Our resident experts at Pinsent Curtis Biddle bring you a comprehensiveupdate on all the latest decisions that could affect your organisation, andadvice on what to do about themPitney Bowes Management Services Ltd v French (EAT/408/00) EAT Company-specific profit sharing schemes transfer under TUPE * * * * Employees of the transferor, Sainsbury’s, had been contractuallyentitled to participate in a profit sharing scheme receiving benefits paid inSainsbury’s shares. Following a TUPE transfer, Pitney Bowes argued it was notbound to continue the scheme as it had no control over it, could not accesscommercially sensitive information relevant to its operation and could notissue Sainsbury’s shares. Both the employment tribunal and the EAT held thescheme did transfer under TUPE. Key pointsOne of the many areas of uncertainty under TUPE has been the extent to whichbenefits intrinsically linked to the identity of the transferor can transferunder TUPE. Do the obligations transfer at all and, if so, what must thetransferee do about terms that are impossible to replicate precisely? In thiscase, whereas the employment tribunal held the obligation on the transferee wasto replicate the scheme exactly, the EAT at least took account of the practicaldifficulties of doing so. Thus employees are entitled to benefit from a‘substantially equivalent’ scheme. The transferee’s obligation under TUPE is toreplicate the features of the scheme as far as it can and substitute anycompany-specific provisions with terms that leave the transferring employees ina comparable position overall. What you should do – Transferees should undertake careful due diligence to identify alltransferring obligations including those relating to bonus or profit sharingschemes. You will need to identify how ‘transferor specific’ elements can bereplaced.l Also, identify the extent to which the transferor has been able tovary or withdraw the schemes, as you will have the same powers. This mayfacilitate the tailoring of the scheme to your business. – Provide for consultation with unions or employees over replacement schemes– the EAT said it would expect to see this. HM Prison Service v Beart (EAT/650/01) EAT EAT gives further guidance on reasonable adjustments under the DisabilityDiscrimination Act * * * Mrs Beart suffered from clinical depression. Following a conflict withher line manager, she took a long period of sick leave. The prison’soccupational health physician recommended she be relocated or redeployed, asthe conflict was a cause of the depressive illness. The prison failed to follow this advice, and Mrs Beart argued it hadbreached its duty under section 6 of the DDA to make reasonable adjustments.The EAT upheld this complaint, even though the tribunal had found it was only a‘substantial possibility’ that she would be able to return to work had she beenrelocated. Key pointsThis case makes it clear that where a disabled person is disadvantaged bycertain arrangements, an employer should not discount taking a particular stepjust because it is not guaranteed to work. The extent to which the adjustment in question is likely to workwill be relevant in assessing whether it is reasonable to make it, but otherfactors such as its practicability and cost must also be considered. What you should do – Where a person covered by the DDA complains that certain arrangements putthem at a disadvantage, give detailed consideration to the full range of stepsyou could take. – Consult the employee as to what steps he or she feels would beappropriate. – Even if the employee has no suggestions, consultation with his or her GPand with disabled charities or other relevant organisations may be appropriate.– Do not discount adjustments just because they are not guaranteed to work.If there is a chance they may work it might be safer to try them, particularlywhere they would be cheap and easy to implement. Hussain v H M Prison Services(EAT/1250/00) EAT EAT clarifies the liability of employers for the discriminatory acts of thirdparties * * * Hussain, a prison officer of Pakistani origin, was subjected to racistabuse on several occasions by various prisoners. He argued the Prison Servicehad not taken sufficient steps to protect him from abuse and had subjected himto a detriment. The EAT upheld the tribunal’s rejection of the complaint andgave useful clarification on how such liability is established. Key pointsThe principle that employers can be liable for the acts of third partiestowards their employees was established in the notorious case of Burton v deVere Hotel Company, 1997, ICR 1 – the so-called ‘Bernard Manning’ case. Thehotel chain was found to have unlawfully discriminated against two of itswaitresses by failing to take steps to prevent them suffering abuse at thehands of the comedian Bernard Manning during his act at a hotel function. In Hussain, the EAT said in deciding whether the employer has subjected theemployee to a detriment through the acts of third parties, several factors mustbe considered: – Did the employer cause or allow that thing to happen in circumstanceswhere he could control whether it happens or not? The key issue is whether theemployer could, by the application of good employment practice, have preventedthe abuse or reduced the extent of it.l Lack of foreseeability or theunexpected nature of the event complained of could be relevant to whether theevent could be controlled. In this case, the Prison Service had clearly warned the prisoners that abusewould not be tolerated. The tribunal had correctly recognised there were limitsto what could be done. What you should do Undertake risk assessments to identify potential liabilities caused by thediscriminatory acts of third parties. This is particularly important in respectof employees who come into contact with the general public or other thirdparties in the course of their employment. – Analyse what steps could be exercised to reduce this potential and whatmight constitute ‘good employment practice’. – Provide clear guidance to third parties that abusing your staff will notbe tolerated. – Give clear advice to employees that harassment from third parties shouldbe reported to managers and ensure managers are trained to recognise and dealwith harassment. British Bakeries Ltd v M L O’Brien (EAT/1479/00) EAT Offences labelled as ‘gross misconduct’ in a disciplinary code may not alwaysmake summary dismissal lawful * * * O’Brien was summarily dismissed for gross misconduct. When he claimedwrongful dismissal, the employer argued that his conduct fell within thedefinition of ‘gross misconduct’ in the employment contract. Key pointsIt is common for contracts, rules or disciplinary procedures to define thetypes of behaviour that would be regarded as gross misconduct. But will suchoffences always enable a lawful summary dismissal? According to the EAT, evenif a contract defines certain acts as constituting gross misconduct, it willnot normally be sufficient (in the absence of clear contractual wording) merelyfor the employer to prove there has been conduct, however trivial, fallingwithin the definition. The conduct must be sufficiently serious to be arepudiatory breach of contract. What you should do – If it is absolutely fundamental that certain types of misconduct shouldautomatically lead to summary dismissal, make sure this is made crystal clearin the employment contract. – Remember, however, that even if a dismissal is lawful (ie permitted underthe employment contract) it may still be unfair. Tribunals are often wary of a‘tariff’ approach to disciplinary sanctions (ie certain types of misconductautomatically leading to dismissal) and may find no reasonable employer wouldhave dismissed. The Scottish Ministers v Dunlop (EAT/1227/01) EAT Variation to contract was ‘dismissal in disguise’ * * * Following an industrial accident, Dunlop’s employer considered himunfit for his current job. He was offered a different job on a lower grade andmuch lower salary. He accepted this, but claimed unfair dismissal. The firstissue was whether he had been dismissed. Key pointsThe EAT rejected the employer’s argument that there had been a consensualvariation to Dunlop’s contract. The contract had been withdrawn. This was anill-health termination and Dunlop could claim unfair dismissal, even though hehad accepted the alternative job. What you should do Always remember the need for a potentially fair reason and a fair procedure.Take care in the manner in which variations are proposed to employees’contracts, particularly where duties or salary are affected. Remember, termination of a contract is a ‘dismissal’ even if the employmentrelationship continues. Case of the month by Jon Fisher EAT declares ‘rolled-up’ holiday payments unlawfulMPB Structures Limited v Munro(EAT/1257/01) EATAnother controversial EAT decision on holiday pay, with potentiallycostly implications* * * * * MPB Structures added anallowance of eight per cent to each weekly pay packet as holiday pay. The EATheld this fell foul of the Working Time Regulations which prevents workers fromcontracting out of their entitlements. In the EAT’s view, the only way the regulations can be met isfor holiday pay to be paid at the appropriate rate, as and when holiday istaken.Key pointsIn a terse judgment, the EAT said the regulations were meant to ensureworkers got appropriate holiday leave. For this, they must have the necessaryfunds. The EAT felt that the employer placing the onus on the workerto save the holiday pay element of the wage did not accord with this aim. Thiswas particularly so where the worker took leave at the beginning of a holidayyear and so had not built up sufficient holiday allowance to constitute wagesfor the holiday period.This is one of a number of recent EAT decisions on holiday paywhich are difficult to reconcile. Most have concerned Reg 16(5) which statesthat contractual payments made for a period of leave go towards discharging anemployer’s obligations under the regulations in respect of that period ofleave: Gridquest Ltd t/a Select Employment v Blackburn, 2002, IRLR 168 forexample, and The College of North East London v Leather, EAT/0528/00.These cases, which were not referred to in this judgment,proceeded on the basis that rolled-up holiday pay is permissible under theregulations.If the EAT is right in this case, employers who pay rolled-uprates will be deemed not to have paid any holiday pay for the purposes of theregulations. The implications of this are particularly serious when oneconsiders the decision in List Design Group v Catley, EAT/0481/01 (see CaseRound up, April), which permitted employees to recover non-payments forprevious holiday as arrears of wages. Employees who have been paid a rolled-up rate could potentiallyclaim arrears of holiday pay going back to 1 October 1998, when the regulationscame into force.What you should do – Given the uncertain legal position, consider whether there isa practical alternative to paying your workers a rolled-up rate.– Keep an eye out for the Court of Appeal’s decision in Gridquest which itis hoped will clarify the legal status of rolled-up holiday payments. Beprepared to act swiftly in changing your arrangements if the Court of Appealfollows this judgment. Comments are closed. Related posts:No related photos.
Our resident experts at Pinsent Curtis Biddle bring you a comprehensiveupdate on all the latest decisions that could affect your organisation, andadvice on what to do about themO’Flynn v Airlinks the Airport Coach Company Limited, EAT Ruling on Human Rights implications of drugs screening * * * * Airlinks introduced a drugs and alcohol policy which included a‘zero tolerance’ policy on drugs. It also introduced random drugs screening of10 per cent of its workforce per year. Miss O’Flynn was screened, testedpositive for cannabis, and was dismissed. The EAT upheld the tribunal’s decision to reject her unfair dismissalcomplaint. Key points Miss O’Flynn claimed her dismissal was unfair because by introducing thedrugs and alcohol policy, carrying out screening and dismissing her for takingcannabis outside of work, Airlinks had infringed her rights under Article 8 ofthe European Convention on Human Rights, incorporated into UK law by the HumanRights Act 1998, which affords everyone the right to a private life. The EAT rejected this argument. The relevant acts took place before 2October 2000, when the HRA came into force, and the Act does not haveretrospective effect. However, the EAT did express tentative views on what the merits of the argumentwould have been had the Act been in force. As Airlinks was not a publicauthority, the Act would not have been directly enforceable against it,although the tribunal would have had to consider it in reaching its decision.Also, the EAT stated the only effects on the employee’s private life were thatshe had to provide a urine sample and that she could not take detectable drugswithout jeopardising her employment. Even if this did constitute a prima facieinfringement of her Article 8 rights, employers can justify interference withprivate life where this is necessary to protect public safety. The EAT indicated if there was a prima facie infringement then the testingsystem, and the employer’s response to an adverse test result, would have to beproportionate to the risks posed by the drug use. An employer should bear inmind the drug taken, the amount taken and the threat to safety this posedhaving regard to the employee’s duties. What you should do – Consider whether health and safety considerations justify alcohol and/ordrugs screening, and whether any screening should be random or targeted. – Set out any screening process in a drugs and alcohol policy. The right tosubject employees to screening should, where possible, be included in contractsof employment, and will normally require employees’ consent. – Clearly state potential consequences of any adverse test result in thepolicy. Ensure any action taken is proportionate to the risk posed by theemployee and the drug levels found. – Watch out for the fourth section of the Information Commissioner’sEmployment Code of Practice, which will deal with the data protectionimplications of drug screening. Coxall v Goodyear Great Britain Limited, Court of Appeal Employers can be under a duty to dismiss employees at risk of injury * * * * Mr Coxall was employed to spray tyres with lubricant paint. Hisemployer had complied with its health and safety obligations in setting up asafe place of work. Nevertheless, the exposure to paint caused Mr Coxall tosuffer with asthma. He brought a claim against his employer alleging it had been negligent inallowing him to continue to work once he had been diagnosed with asthma, eventhough he had insisted. Key pointsThe Court of Appeal held that an employer may be under a duty to stop anemployee doing a job (whether by finding alternative employment or evendismissing him) regardless of the employee’s own wishes, where he is at risk ofinjury if he continues in it. Whether or not that duty arises depends on themagnitude of the risk to the employee’s health. On the facts, Lord Justice Simon Brown found the employer had been negligentin permitting Mr Coxall to continue working (although Mr Coxall’s contributorynegligence in doing so would have been relevant had it been raised). However,Lord Justice Brook held the employer had acted negligently only in failing todiscuss all of the possible options with Mr Coxall. He suggested any duty toprevent an employee from willingly taking a risk would apply only where therewas “a very significant risk of [the employee] being exposed to harm of aconsiderable magnitude”. What you should do – If such circumstances arise, medical advice should be sought. Consultationshould take place with the employee, but the employee’s views will not beconclusive. If the medical advice indicates there is a significant health risk,look at alternative employment. – In cases where the employee’s condition amounts to a disability, rememberthe duty to make reasonable adjustments under the Disability DiscriminationAct. – Consider dismissal only as a last resort and after full consultation withmedical advisers and the employee, as even where the duty applies a dismissalmay still be unfair. Fairchild v Glenhaven Funeral Services Ltd, House of Lords Important personal injury test case * * * * This case dealt with issues of major importance for personal injuryclaimants. The question was whether an employee may recover damages forpersonal injury caused during employment with more than one employer where bothor all employers have breached their duty of care towards him but the employeecannot show at what point his injury was sustained. Key pointsMr Fairchild was suffering with mesothelioma, caused by the inhalation ofasbestos dust. He worked consecutively for two employers, both of whichbreached their duty of care with the result that during his employment withboth parties he inhaled excessive quantities of asbestos dust. However, MrFairchild could not prove, on the balance of probabilities, that his conditionwas a result of his inhaling asbestos dust while with his first or secondemployer or occurred during his employment by both employers taken together. The House of Lords broke new ground by unanimously holding both employersliable for the injury, although the Law Lords were not unanimous in theirreasons for reaching that result. The scope of the principle will be developedincrementally on a case-by-case basis. What you should do – Identify those jobs where employees are at risk of industrial industrythrough cumulative exposure to the job. – Consider carefully whether to adopt the practice growing in the US oftesting recruits for diseases to which people in the job in question aresusceptible. While such tests may assist in demonstrating that responsibilityfor any illness or injury lies with a previous employer, equally if testresults are clear it will be harder to argue you are not responsible for it.The data protection and human rights implications of testing, and the potentialfor disability discrimination complaints from applicants rejected on the basisof adverse results, must also be borne in mind. McNiffe v Redcar and Cleveland Borough Council, EAT Capability dismissal fair despite imminent transfer to less demandingjob * * * Ms McNiffe was dismissed for capability reasons. She complained herdismissal was unfair because, among other things, she had been about totransfer to a less demanding role which she had previously performedadequately, and she had not been expressly warned that she would be dismissedif her performance did not improve. The tribunal rejected her complaint and theEAT rejected her appeal. Key pointsMs McNiffe’s transfer had been deferred to enable her to ensure her reports wereup to date. She had not done so, and had shown no willingness or capability todo so. As a social worker, reporting adequately was a fundamental part of herrole, and it was also a requirement of her new role. She had been told onnumerous occasions her performance was deficient in this area and been given agreat deal of assistance to improve it. In relation to the imminent transfer, the EAT stated the most reliable guideto the employee’s capability was her performance recently, not that in her previousrole over two years ago. The tribunal had concluded the employer had actedreasonably in not taking that past performance into account. On the warning issue, the EAT stated that although only one formal warninghad been given, and no express threat of dismissal had been made, Ms McNiffewas fully aware that reporting was a fundamental part of her role, and that heremployers were very unhappy with the way she was carrying out that task. On this basis, the EAT thought Ms McNiffe was sufficiently intelligent torealise what the consequences of her failure to improve would be. What you should do It would be unwise to rely on this case when dealing with capabilitydismissals. Best practice is to set clear objectives and to give clear writtenwarnings as to the potential consequences of failing to meet them. Blackburn v Gridquest Ltdt/a Select Employment, Court of Appeal Court fails to make general ruling on validity of paying workers arolled-up rate * * * * * This is the latest of an ever-increasing number of decisionsconcerning workers who are paid at a rolled-up rate, which is intended toincorporate an element of holiday pay into regular pay packets. The Court of Appeal’s decision had been eagerly awaited given the apparentconflict between various divisions of the EAT on this issue. For example, inthis case the EAT had directed that the employment tribunal should give creditfor any holiday pay included in the rolled-up rate when calculating what sumsthe workers were owed. But in MPB Structures Ltd v Munro (EAT/1257/01) – seeCase Round-up, July/August – the EAT held such payments were an unlawfulattempt to contract out of a worker’s entitlement under the Working TimeRegulations 1998, and accordingly no credit should be given for them. Key pointsOn the facts of this case, the Court of Appeal held there was no agreementthat payments to workers included an element of holiday pay. The Court made itclear that it was not for employers unilaterally to decide that a proportion ofweekly pay represents holiday pay – without the worker’s agreement on this thesum paid will simply represent contractual remuneration for the week’s work. There was therefore no need for the Court to consider the wider issue ofwhether such an agreement would have been enforceable, and it declined to doso. Regrettably, this leaves employers in a quandary. If the decision in Munrois followed then payment of the agreed rolled-up rate will not discharge theirobligation to pay holiday pay. This means employees who have been paid arolled-up rate could potentially claim arrears of holiday pay going back to 1October 1998, when the Working Time Regulations came into force. What you should do – If you pay at a rolled-up rate, check there is an express term of thecontract specifying what part of that payment represents holiday pay. – Given the continued uncertainty, consider whether there is a practicalalternative to a rolled-up rate. Best practice is to pay workers at the correctweekly rate as and when they take their annual leave. Any other arrangement may not meet your obligations under the Working TimeRegulations. Previous Article Next Article Related posts:No related photos. Comments are closed. Case round upOn 1 Sep 2002 in Personnel Today
War with Iraq may damage businessOn 17 Sep 2002 in Military, Personnel Today Related posts: Comments are closed. Previous Article Next Article Businesses are bracing themselves for the consequences of war in the MiddleEast. A war with Iraq took a step closer following Tony Blair’s call for actionduring his address to the TUC annual conference last week. John Philpott, chief economist at the CIPD, said a war could damagebusinesses and jobs. “If oil prices go up because of a war it wouldincrease costs, and put firms under pressure. “During the Gulf War, people stopped flying as they were worried aboutterrorism. That would have an impact on business, especially long-haulcarriers,” he said. Philpott also thinks inflation and interest rates would increase as a resultof a conflict. Last week, Rod Eddington, chief executive of British Airways, said thataction against Iraq would damage airlines. The TUC Congress passed a motion opposing unilateral military action againstIraq without the United Nation’s authority. Features list 2021 – submitting content to Personnel TodayOn this page you will find details of how to submit content to Personnel Today. We do not publish a…
Comments are closed. Previous Article Next Article This week’s case roundupCan the same facts give rise to claims for both direct and indirectdiscrimination? Jaffrey v Department of Environment, Transport and Regions, EAT IRLR 688 Jaffrey was employed by the department as an administrative officer subjectto an annual appraisal which dictated his rate of pay. Following one such appraisal, he commenced a claim of direct discriminationagainst his line manager (who was white) in respect of how the appraisal wasconducted. He also sought, to challenge the department’s appraisal schemeitself as indirectly discriminatory against ethnic minority employees. Thetribunal agreed Jaffrey’s annual appraisal had been conducted in adiscriminatory fashion and had resulted in a loss of performance-related pay.He was accordingly made an award for that loss of pay, for loss of promotionand £7,500 for injury to feelings. His claim that the appraisal process wasindirectly discriminatory failed, as the court held that the poor performancearose from the direct discrimination of the line manager who operated thesystem unfairly, not from the system itself. Jaffrey’s appeal was alsounsuccessful. Determining jurisdiction is not easy Rogers v Markel Corporation, High Court,  EWHC 1138 This month, the High Court was called upon to clarify the UK’s legaljurisdiction in respect of a tricky, but by no means unusual arrangement. Rogers was employed on an American contract by a subsidiary of a US companybased in the UK. He was British and had always worked here. When his employmentcame to an end however, he wanted to claim additional payments he believed weredue to him. Since his contract arose in the US, did he have to get leave of theUS court to issue proceedings in the UK? The Court concluded that any claim could be heard in the UK. Relevantfactors included that UK lawyers had been involved over many months, interimpayments were not available to Rogers in the US and his costs in bringing aclaim in Virginia, US, even were he to win, would be prohibitive. Related posts:No related photos. Case round-upOn 12 Nov 2002 in Personnel Today