BBC Radio Wales 21/04/22

 

Listen now to BBC Radio Wales broadcast from 21/04/22 where Elissa Thursfield ⚓ Employment Law Solicitor ⚓ HR Anchor Director ⚓was the expert contributor on Behnaz Akhgar‘s advice hour.

Listen back now to hear

– P&O sacking of 800 employees

Question’s posed to Elissa

– How to ask for a pay rise (5m51s)

– How employers need to keep employees safe with the reduction of Covid restrictions (13m 15s)

– Home working/flexible working rights (15m 10s)

– Vehicle tracking for employees in company vehicles (18m 51s)

– Can you be sacked for being off sick for a long time? (22m 01s)

– Relaxed dress codes in the office (25m 26s)

 

Transcript

 

Work takes up a great deal of our life. If you’re full time you can clock up over 2,000 hours a year. So when problems sometimes occur, it’s important to get the correct advice. This afternoon we’ve definitely hired the right person for the job, Elissa Thursfield head of employment at Gamlins Law in north Wales is here to answer your questions on employment law. Welcome back. How are you keeping?

 

Thanks very much. What an intro I it’s great to be back. Thank you so much for having me on.

 

I hope it’s sunny where you are as well.

 

I mean, Abersoch it’s absolutely beautiful.

 

Beautiful part of the world. Well, thank you very much for joining us. So one of the biggest employment news stories to hit the headlines, you know, for many, many years, happened just a few weeks ago when P&O bosses sacked 800 workers, without any notice at all. Can you briefly remind us what happened last month?

 

This was a huge story. As the news broke the morning this all happened. members of staff been made redundant without notice, and utilising a pre recorded Zoom video. There was no consultation. There was no discussions with the unions. These people woke up to this video message which told them all that their employments were being terminated. And that was the end of it, which was enormously shocking. For a company of that size and experience obviously they know the procedures and they shouldn’t be going through. It’s not been out of the press since.

 

It’s worth mentioning this P&O ferry, not cruises. When I mentioned P&O cruises the other day, someone they were like, Oh, we’re gonna go with them. And I was like, no, no, it’s two completely different companies. So this is P&O Ferrys that we’re chatting about, as an employment lawyer, what was going through your mind was the first thing you thought about when you heard about the story because I don’t know much about the law when it comes to employment, but I was pulling my hair out.

 

I mean, in all honesty, it’s either they didn’t take advice or they didn’t listen to it. It’s one of those sort of head in your hands moments and where you think, okay, I can understand you’re trying to do this because you need to save the business money and you want to make the business viable. But the PR fallout and the cost of these ships being stuck in port has surely outweighed any of those, potential savings. I just cannot see how this has been the right thing for that business to do.

 

And can you just explain to us what were the rights and wrongs of this particular redundancy process?

 

So, if if there were roles that are at risk, I would so for redundancy situation I’d be restructuring or you’re saying that a roll is no longer required. There’s a process that you have to go through. Now, if you’re making more than 20 people redundant in a 90 day period, you have to follow what’s called collective consultation. So that’s got additional rules and it’s a bit more complex and there’s more requirements. So here we’re looking at 800 staff members, absolutely, it should have been collective consultation. Now what that means is they should have notified the redundancy payment service. So the RPS before the start of consultation. They should have consulted with trade unions and elected employee representatives. They should have provided information to representatives and staffs about the redundancies, why they’re doing it, what they’re going to gain and give them the chance to consider it and have their say, respond to any requests for further information and then ultimately give the notice of termination. So they should have been engaging staff in this process, not as I say just having them wake up to the message that their employment had been ended.

 

Did they do anything right and this?

 

Other than perhaps after the event, admit that they’ve done it wrong. There is very little that they’ve done right. To be honest. I do wonder if I’ve been in this job too long and I’ve become a cynic. However, very little positive things to say about this process.

 

What options would have been open to P&O if they claimed they were facing having to make huge financial savings, there was just no other option for them.

 

Well, in this situation, it was not the right thing for them to have done we’re done. It is when it rolls in no longer exist. These roles do exist. They’ve gone to find cheap labour that they’re bringing in from abroad, which the reality is what we would call TUPE process, where rather than getting rid of roles, you’re transferring them, you’re outsourcing that work. But I still needed to make money. You know, there’s there’s other things that the business could have looked at, you know, how much they paid senior managers, all the overstaffed in particular areas, were their port fees, what are their actual costs of operating outside of staff? There’s been no indication because there hasn’t been a consultation as to what else they have looked at and that would have formed the core of a consultation process. They should have been showing the staff members. Look, these are all the options and this is why we’re down to this is the last resort. There’s nothing else we can do. But we don’t get the benefit of that information because they didn’t bother to consultation.

 

They’ve said now that the staff will be compensated, but you know, long term wise damage to the company, that organisation and brand their reputation I mean, the kind of underestimate the consequences didn’t they.

 

I think they did. This is not the first time this kind of thing has happened in the industry. Years ago a similar thing happened with Irish Ferries. Perhaps they thought this is the kind of thing the public would forget about, we have the pandemic, the troubles in Ukrane. There is so much going on, who is going to notice 800 people being made redundant? Well, lots of people did! It was a wrong step frankly.

 

BREAK IN SHOW

 

We spoke briefly earlier about the businesses. You know how they’re financially struggling at the moment. The rise of cost of living affecting all of us and I guess one option A lot of us might be thinking about is is it time to ask your boss for a pay rise? What advice would you give anyone considering to do this?

 

I mean, you’re totally right in terms of why people might be wanting to ask for a pay rise in the midst of a perfect storm as a you know cost of living has gone up fuel electricity is it’s all a bit horrible out there. In terms of interest for pay rise. My mantra is always if you don’t ask you don’t get it’s always something that’s worth doing. However, it’s got to be done in the right way. And if you’re knocked back, it’s to avoid the temptation of either taking it too personally or seeing the relationship as broken because whilst the cost of living has gone up for individuals, the cost of employing people and the cost of running a business has also gone up as well. So there may not be as much cash flying around as perhaps there has been in previous years.

 

How can you avoid falling and the first hurdle should you do lots of planning? Should you just research have a look at what people are earning and your level of work and what is the best way about going in? So at least get the conversation flowing because these things don’t happen? It’s very rare that you go and say “Can I have a pay rise?” and it happens there and then.

 

You’re absolutely right and with something like this preparation is always the key. You may well have a restriction in your contract that prevents you from discussing pay with people that are your peers or people that you work with. There’s lots of resources online where you can go do something that’s called benchmarking your salary. So you go and have a look at what you’re paid. Compared to other people in your industry or other people at your level or with your skills. So have a look at figures like that. And then also have a think about what it is that you bring to the business. What are your skills, where is your career going and almost you know, sort of set out a sales pitch. This is why I’m worth what it is that I want you to pay me.

 

I would suggest you know never sort of just walk in and land it on somebody book an appointment set some time aside so nobody feels rushed, and have that discussion in a calm and sensible way and present why you believe you are worth more.

 

And is there a timescale of how long should go by before you get a pay rise. Let’s say you had a pay rise five years ago, nothing since. And you’re thinking since five years ago, I’ve come leaps and bounds of doing so much more with so many skills, this pitch that you mentioned. Is there a timescale or is it just different for everybody in every business?

 

Other than if you’re on the national minimum wage, obviously that should climb every year with the increases. Most contracts of employment do say that you may be considered for a pay rise but there’s no obligation for the employer to do so. So there’s no legal trigger, so to speak for a pay rise to be implemented or even be considered. What I would say is you know if it’s been a few years, are the decision makers aware of how you’ve progressed, do they know what you’re bringing to the business? Because if it’s not your direct line manager who’s making the pay decision, it could well be that by saying staying quiet, that you’ve gone under the radar. So working out, you know who’s the decision maker in this process and whose support do I need? That’s also really important as well. If you’re in a situation where, for example, if you’re a woman in the workplace and you’re seeing men around you getting promoted, or you find out they’re on more pay, that’s a very different issue. That’s an equal pay issue. There are lots of sort of very protective laws around this now and if you know if you do think there’s an equal pay issue, you need to be talking to a solicitor because there could well be a legal course of action that you can take to ensure that your pay is equalised with that of your colleagues.

 

But how can you find out or your colleagues are earning? I know situations where people have come and said to somebody who’s battling I’m earning this much to kind of help them with their, with their discussions with their management, it’s their way of finding out what the people who are working on your level of work and role, what they’re earning?

 

I mean, some employers are very open about it and they will publish that information. If you’re working for a large employer. They’re under an obligation to publish the gender pay gap reporting and also reports about you know what they’re paying people. So you may be able to see that way. If you’re working for someone who I was up before, it’s got those restrictions about discussing your pay, but it can be very difficult to find out what your colleagues are on. And it’s only when there’s sort of a slip of the tongue or someone said something out to you that they shouldn’t have done that you might find that information out. Sometimes however, when they’re recruiting for new positions, you know, they might be recruiting for someone who’s on the same level of you, but you find out they’re being paid five grand more back, that would be quite illustrative. What you sometimes get told us a lot, you know, there’s a skill shortage, we’re going out there to try and find the talent but then equally say, Well, look, I’m the talent Why is it being considered for this? Why am I not seen as somebody who’s got that much value to the business? You know, and it’s not always taking you know, what’s said to you and then challenging that sometimes, but in the right and in the professional way.

 

And let’s just say you’re really super blessed you go into see your manager and you’re like, I think I should have a pay rise as of this this. Give your reasons and they are “like okay, well, how much do you think you should get?” You should have a figure in your mind before you go in.

 

Know what you want, go in there with a figure of what you want. And I think it’s, I think it’s a British thing, actually. So I’ve worked internationally before and other cultures don’t seem to have the same issue we do when it comes to talking about money. And when someone needs your positive reaction to that that question, you almost don’t want to try your luck too much.

 

Tell them what you want and then negotiate you know, it doesn’t have to just be a one way street. I tell them a bit more than what you actually want. So them in negotiation, maybe you’ll get what you want.

 

Be Less British should be more Canadian or American about it. Just go in, sell yourself and get exactly what you deserve.

 

Now, is money, the only factor people seek to negotiate?

 

Not at all I mean, particularly at the moment with cost of living and cost of transport. So I think train fares have gone up, fuels gone up. cost of childcare has gone up. So people don’t always want to be in the office, you know, after COVID We’ve seen in many businesses in many sectors that working from home can be effective. And they see by working from home they can reduce reliance on childcare, they can reduce commuting costs. So if they’re not eligible for a pay rise, and they want to get to grip grips with the cost of living, that’s potentially an outlet in terms of what else they can negotiate with their employer to try and get a handle on those costs.

 

Very good advice. As always, thank you very much Elissa.

 

Elissa Thursfield, head of employment law, at Gamlins solicitors.

 

BREAK

 

Okay, so since the last time we spoke, you know, Wales is now on alert level zero. Finally, we’re getting used to this new normal, even though COVID still affects many people. There must be some challenges employers need to consider to kind of make staff feel safe. What what are those challenges or developments?

 

Definitely, I mean, even though we’re down at a level zero, you know, people who have got their vaccinations no longer need to isolate if they have COVID. But that in itself has presented a whole new raft of challenges for employers. So somebody tests positive. If they feel well enough, they could potentially attend work that causes other people to feel uneasy, they want those people to be sent home. So there’s lots of new sort of nitty gritty problems that employers are having to face as a result of the reduction in restrictions.

 

So each company decides for themselves whether they the person who tests positive comes into office or not.

 

Yeah, for the difficulty that we’ve got here is if somebody says that they are well enough to attend work, if the employer then decides to send them home, technically that would have to be on full pay. Because the employee is presenting and is able to attend. If someone says that they’re not fit and they’re not feeling very well, they will get their sick pay in the usual way. Where we are coming across difficulties. You’ve got somebody wants to come to work they want to work, but their colleagues are not very happy about it. And equally, the employers are thrilled about prospects of having to pay them for pay to be at home.

 

Well, ideally, hopefully, they can work from home if they’re feeling up to it to kind of solve that problem.

 

I mean, to what extent are we within our rights request for flexible work patterns, especially enjoyed working from home? Do we have to return to the office?

 

If your employer has allowed you to work from home during the pandemic, you’ve got a reasonable grounds to say to them. Look, this is how productive I was. This is how well this is all worked. I want to continue to do this. Simply because you’ve done it during the pandemic doesn’t give you that absolute right. Now, if an employer decides that they’re not prepared to support that, after a conversation with you, then you’d need to put in a formal flexible working request that would need to be dealt with under a process by the employers. There’ll be a formal meeting to discuss it. They would have to go away and have a think about it properly. And there’s only a limited number of reasons that an employer can refuse a flexible working request. So say for example, if you wanted to adjust your hours as well, if your employer can say, Well, look, there’s no customer demand at that time. Or we can’t shuffle the work around or give you those operational reasons why it’s not going to work then that would be lawful. You then have a right of appeal. And then once that’s completed, that is essentially the end of the process. Now, if your employer were to say for example, no, we’re not prepared to allow you to work from home because we just don’t like it. We think people are watching television all day. That’s not a lawful reason. They are very rigid in terms of the ability to say no, using a lawful basis. So you could potentially have legal recourse if your employer was unfair about his or didn’t follow a process.

 

So if there’s friction in the workplace, you know, people have different opinions on maintaining perhaps some of the regulations. Some people want to continue wearing masks. Some people don’t want to wear masks. How do you deal with maintaining those regulations? With different opinions within a workspace?

 

The reality is, the bottom line should always be that people should be respectful of how other people feel. Not everybody has to get on at work. You don’t have to agree with everybody but you should respect their opinions and you should respect their skills and what they bring to the company. So if you have people who are disagreeing about things like social distancing vaccinations, positive testing, and all that sort of stuff. It should never descend into anything beyond. Well, I don’t agree with your opinion, but we need to move on professionally.

 

The message from the employer should be that communication should always be cordial and professional. If there’s a serious issue it should be escalated to a line manager and dealt with formally. We should never be allowing things to descend into disputes at work because of differences of opinion because it can be quite dangerous. And things very rarely stay contained to the issue that started all off often you find things sort of go out of control and you end up with all sorts of other issues thrown in there as well. So it’s nipping things in the bud early, supporting that positive communication and spotting the real issues and dealing with those formally. Communication is the key.

 

Just make sure you make it clear to your colleagues, your management, what it is that you are not comfortable with.

 

Thank you very much for all your help.

 

So now, we’ve had two anonymous texts for you. And I’ll start with the first one which is asking what is the law of vehicle tracking system with your company?

 

Okay, so there’s there’s two sorts of issues there when it comes to vehicle tracking. One is Yes, an employer can do it. However, you should be aware that the device is there that should not be doing it covertly. And then the second once you’re aware of that device is that you should be aware of how that information is used. So it’s not just a case of well, there’s a device there that an employee can do what they want with it. They need to be very clear on why they’re collecting that information and what it’s going to be used for. So the short answer is yes, they can do it but there are some hurdles that they need to get over first

 

Why do they do it?

 

So we work with a few businesses that do undertake vehicle tracking. So for those that have got HGV vehicles, it’s very useful. So it’s actually fascinating when he goes to their offices and you see they have these big screens and they can see where all the trucks are. So they can see where deliveries are happening, where and when. They can see who is late and who is stuck in traffic. So they will keep customers informed, you know whether there’s a delay in terms of deliveries. Sometimes, the decision is made to introduce devices such as dash cam devices for employees who are regularly either being done for speeding, or there seems to be a pattern of events in terms of damage to vehicles or being involved in incidents. So there are a number of reasons why they might do it. In larger vehicles or in vehicles where you’ve got employees who are subject to tachograph and things like that. It can be ensure that an employee is actually doing what they should be doing with that tacho.

 

So if you’ve just got a company car like a normal car, you drive to work where you drive home and then sometimes you have to go long distance for work with that car. How do they justify having a tracker on you for that?

 

So again, with things like that, what they could say is that there’s health and safety reasons so they can say so that you aren’t doing long drives so that they can make sure that you’re not driving for 12, 13, 14 hours in one go and that you are taking appropriate breaks and equally if you are driving that much for work to make sure you are working, you are attending customer premises. They could well justify it on that basis to make sure you are using that car for the purposes that it was given to you.

 

Say I find out there is a tracking device on my car from my employer and they never told me. What are my rights then?

 

In those sorts of circumstances my advice would be for them to raise a grievance with their employer. Ask for the device to be removed from the car until that formal grievance has been heard and an outcome given and a justification for why that device was there in the first place.

 

NEXT QUESTION

 

Can you get sacked if you’ve been off sick for a long time, I’ve been in the company for over 10 years.

 

The sad answer and the hard truth here is that yes somebody can sacked due to long term sickness. The reason for that is this device has a capability dismissal. Because of long term sickness absence, that person is no longer capable of performing a contract of appointment. It’s quite a complex area of law. If someone’s been off for a long time. The reality is that the employer should have been holding regular meetings or welfare checks with that staff member. Holding capability meetings to go through a process before the decision is made to dismiss someone. It should never be as simple as this person has been off for 12 months, here is a letter to dismiss them.

 

It does not work like that.

 

There is still a process the employer has to go through to look at what could be done perhaps, to get that person back to work, whether there’s any adjustments that could be made to the role to alleviate any difficulties they may be experiencing because of health or disability. And make sure all options have been considered before that decision to dismiss is made. If an employer doesn’t jump through those hoops, they don’t consider those points potentially it could be an unfair dismissal and if that person has a disability it could potentially be a disability discrimination claim.

 

What is considered a long time to be off work? Is six months considered a long time?

 

It varies between company to company and it usually comes down to how well staffed and resourced businesses are. So for larger businesses who have lager resources or the ability to tap into temporary workers or agency staff, what comes under long term or unsustainable does become a bit longer. What you can often see is, especially where there have been disputes, there are staff members who have been off work for a year maybe 2 years, I’ve dealt with cases where people have been off for 3-4 years. Their argument is that the employer should have waited longer. For smaller employers with only 2 or 3 staff members it can have a really critical impact if you lose a staff member. If you cant afford to replace them with agency because you’re still paying sick pay, they are still accruing holiday, then you could make an argument that less than 6 months is long term and unsustainable. It comes down to the individual facts.

 

If the employer however is saying “you’ve been off for 8/9 months, we have gone through a process” and the employee says, “well actually I’m coming to the end of my treatment or my physio says I’m going to be alright in a month or 2” That can change whether it’s reasonable or not. If there are no prospects and no idea of when a person is coming back that decision to dismiss is probably more reasonable. But if a person says “Just give me a couple weeks and I think I’m gonna be better” If you decide to dismiss in those circumstances it’s probably going to be something that could be challenged.

 

BREAK IN SHOW

 

Changes that have happened in the last couple of years. Many of us enjoy to be able to wear more casual clothes. Let’s continue with the more relaxed vibe as they return to the office.

 

This is something that’s been unusual fall out from the pandemic. We call it zoom dress, with a blouse on top and PJ bottoms on the bottom. So long as you look smart up top nobody is any the wiser. People are saying they are more comfortable when they are working and that is a more comfortable working environment, and actually being buttoned up in a tie and restrictive jackets, or tights with pencil skirts are not the most comfortable work attire to be in and they don’t want to do it anymore.

 

So it’s communication thing. What sort of industry are you in. What are your client or customer expectations? If you’re in an office and you’re not really customer facing and actually there’s a reason why you cant wear something more casual, so long as you’re clean when presented. Its a question to put to your line manager or boss. Does it really impact my work or the office if I come in a little more casually dressed? In some industries there are still very strong client expectations about what professional services should be dressed. Even in my industry, lots of the London law firms are relaxing dress codes and having dress down days. So, I do think things are changing slightly.

 

It feels to me like this is quite an interesting time, for both employers and employees to create a new set of working patterns. It could be a positive thing.

 

Absolutely, this is a great opportunity for businesses to transform their cultures, the way the world sees them and the way they operate. And we shouldn’t need an excuse to do it. Businesses should evolve and look to you know, 1.be providing the best services they possibly can but also the best experiences that they can for their employees. Better engage staff often produce better results. So, it’s certainly a time where we’re seeing lots of change. You know, I’d like to get something that would be you know, studied and reflected on in years to come as to, you know, a real turning point in British workforce.

 

So many companies had issues with people working from home before the pandemic and then everything operated and in some instances operated better than before and employers very much overnight, realise actually, we’re getting a fair amount of work done at home. And it’s not such a bad thing and maybe it’s not such a bad thing and people can come into work not so much in their pyjamas but in more comfortable attire, right?

 

Yes, exactly. And I think, you know, the ability to work from home saved a lot of businesses. There was a real sort of relief. I think that businesses could continue to operate and I think they need something to count those blessings and then see, well look, how do we go forward with this?

 

And you know, we were talking about earlier about people being long term sickness. It could be some people can actually work from home, doing bits of work and be able to tap back in while they’re gradually work their way back into the office, which maybe wouldn’t have been possible before. So again, another positive

 

It’s been phenomenal chatting with you today. Thank you so much for coming on the show today, Elissa.

 

Thank you for having me on a pleasure as always.