This is the 3rd edition of Discuss HR and I hope you are finding it an interesting read and last week’s article certainly was! Well done to John for his effort, which despite various technical problems, proved to be a well read article too! I’m sure you’ll find today’s article to be no exception which has been penned by active group member Annabel Kaye. Today Annabel looks and questions the relationship between HR and employment law. (Ed Scrivener)
Employment law basics and fundamentals
There has been a lot of debate lately on the extent to which employment law inhibits employment, and whether employment tribunals are biased in any way against employers or employees.
Having tweeted about this for a while, there seem to be a range of views on this which could be summarised as:
a) Free market – let’s have no laws, and people can leave if they don’t like their boss or feel unfairly treated
b) We need laws, but not laws as prescriptive as the ones we have, nor a legal system as ‘adversarial’ as the one we have
c) The laws we have are OK, but the way EU law is ‘gold plated’ when implemented in the UK, and the way that insurance companies over-complicate what needs to be done for their clients to stay ‘on cover’, needs to be looked at.
Despite all the political huff and puff, the reality is that as long as we are members of the EU, we are bound to have some kind of employment law - so option a) is not a short term prospect, regardless of merit. Politicians who promise to abolish all employment law do not have the power to do so within our current system - they have only the power to tinker.
Option b) is an area where we have already had some change. The notorious ‘statutory disputes procedure’ has been repealed and the step-based’ process it introduced has now reverted to the older idea of a range of processes that might be fair. This has had the effect of reducing certainty (despite the headline news that people want more certainty), since under the old system an employer who omitted a step would definitely lose a tribunal whereas now it is open to them to argue about it with some (variable) hope of success. The more we have ‘appropriate’ and ‘situational’ fairness, the more we have unpredictability in outcomes. This inherent conflict is unresolved in much of UK law, not only employment law.
HR has a lot to explain (or answer for) when it comes to option c). Many of our HR clients use “employment law” as a way of controlling their colleagues or influencing decisions and processes. Often CEOs are ‘people blind’ in their pursuit of profit. Rather than present cogent or researched argument on the effect on profit of any people related decision, it is easier sometimes to say “the lawyers won’t let me do it”. We have worked with HR people who ring up and ask us, “Tell me it is not legal to do this...”.
HR can and do manipulate the legal advice they receive in order increase their influence.
It is easier to say:
· “That job description is unlawfully discriminatory and we can’t advertise on the back of this – the lawyers will have a fit.”
than
· “You haven’t thought this job description through properly, and you are eliminating candidates that might succeed in this role at a premature stage.”
It is easier to say:
· “This case of discrimination-based bullying is going to cost a fortune and we have to make sure this never happens again.”
than
· “We have not got a grip on performance management and setting goals that people can achieve.”
Legal knowledge and skills are perceived as ‘hard’ skills, and people management skills as ‘soft’. There is no such thing as a post graduate qualification in charm or tact!
The reality is that people are really hard to manage sometimes. And not many people have the interpersonal skills to deal with difficult situations or difficult people, particularly when that person is a senior manager placing unreasonable demands on their subordinates or HR. It’s much easier to ask the lawyers to tell you ‘it can’t be done’.
HR position themselves as the ‘keeper of the employment law book’, and thus are often the ‘No’ person. When we go into organisation where we hear a lot of “The law says you can’t ...”, and “HR said we can’t do anything about that”, we know that HR are not making the real case for effective management and decision making, and are letting the “employment law” bogeyman do the work for them ... or they really don’t understand how employment law works and how to use it to the organisation’s advantage.
About the author
Annabel Kaye has been specialising in employment law since the seventies. She founded Irenicon in 1980 and has spent the last thirty years helping HR, line managers and everyone else look at employment law in a way that gets some organisational gain. She likes to think about things from a different angle and making the complex simple – despite the government’s best efforts. She has traded through three recessions and advised clients from multi-national corporations to the smallest organisation. The toughest thing has always been to balance the competing needs of staff and organisation and that never goes away whatever the legal details.
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Discuss HR is the blog for Human Resources UK, the leading LinkedIn group for those involved with HR in the UK. Next week’s Discuss HR will be published on Thursday 27th January and will be written by experienced HR professional Sheena McLullich.
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