Q: I have recently had a baby and will be returning to work shortly after additional maternity leave. I am a receptionist and have been employed by my employer for 3 years. I work 42 hours per week, 10 am - 6.00 pm Monday - Saturday (one hour off for lunch). I made a formal request under the Flexible Working (Procedural Requirements) Regulations 2003 to vary the times I worked to 9 am - 5.00 pm Monday - Wednesday (21 hours per week) to enable me to look after my baby the other days. My employer has refused my request because she says she cannot recruit anyone to cover the hours I used to work. My appeal was refused on the same grounds. Do I have any remedy at law? Weightman Vizards replies: You may have a claim in the Employment Tribunal if your employer relied on incorrect facts in turning down your request eg there is evidence she could recruit to cover your hours. A Tribunal cannot order a variation however - it can only order your employer to re-consider your application. If an employer fails to comply with its obligations under the Flexible Working (Procedural Requirements) Regulations 2003 a Tribunal can award up to 8 weeks compensation though the maximum for a week's pay is currently £260. You may have a better claim in an employment tribunal for indirect sex discrimination. It may be indirect sex discrimination because your employer is in effect imposing a provision that you work full time and fewer women than men can comply with such a provision because of the need to care for their children. Whether such a claim will succeed will depend on whether or not your employer can justify refusing your request. There is a 3 month time limit for bringing claims under the Flexible Working Regulations or for sex discrimination. You should not delay making an application to an employment tribunal if you wish to seek a remedy at law. Q: I have a toddler aged 4½ who has just started school. I have been a secretary with my current employer for 5 years and have always worked 9 am - 5.00 pm, Monday to Friday. I am finding it difficult to get my daughter to and from school. I have asked my employer about flexible working to allow me to come in at 9.30 am and leave at 3.15 pm. She has told me that she will agree to varying my hours of work but tells me this will be a permanent change. Is this correct? If I can make other arrangements for delivering my daughter to school and collecting her from school eg in a few months time, I would probably want to return to my original hours. Weightman Vizard replies: Your employer is quite correct. If you make a formal application for a variation in your contract of employment under the Flexible Working (Procedural Requirements) Regulations 2003 any variation agreed is permanent and you do not have the right to return to the original terms of your contract. There is nothing to prevent your employer from agreeing a temporary variation for a fixed period but this would be outside the statutory provisions of the Flexible Working Regulations. You should therefore first ask your employer if she will agree a temporary variation. If not then you will need to consider making a formal application to vary your hours under the Flexible Working Regulations but on the basis any variation will be permanent. There are special rules which need to be followed if you intend making such a formal application. Q: I have 4 children (aged 2, 4, 6 and 9) and I have always worked part time. Last week I asked my Production Manager if I could change the days I work from Monday - Wednesday to Thursday - Saturday. The Production Manager has refused my request (which was a formal application to vary my days of work under the Flexible Working Regulations) without holding any meeting with me. He bumped into me and told me that as business was not good he didn't have the time to meet me or to conceive any way to re-arrange the rotas in the department. I am feeling frustrated at this lack of sensitivity and concerned about being confined by my existing work days. Is there anything you can suggest? Weightman Vizards replies: Your remedy at law is to take your employer to an employment tribunal. Your employer appears not to have complied with its obligations under the Flexible Working Regulations which start with the requirement to hold a meeting with you within 28 days of your formal request for a contract variation. Such a failure can lead to a tribunal awarding you up to 8 weeks pay (with a maximum of £260 per week) by way of compensation. A refusal of a request for a contract variation under the Flexible Working Regulations is only permissible on certain prescribed grounds. Not having time to meet you is not one of these grounds. If you wish to make a claim to an employment tribunal you should not delay as there is a 3 month time limited.
Q: As a small members club, what requirements will we have to meet to comply with the Disability Discrimination Act. i.e. will we have to provide means of access to the upstairs of our club for disabled people.. Ted Brightmore of Business 2010 replies: There are many aspects that need to be considered under the new DDA2004. The best approach this is to carry out an access audit. It will establish how well the premises perform in terms of access by a wide range of potential users, including people with mobility and sensory impairments and people with learning difficulties. We can only suggest at this stage not to address particular issues in isolation as the best intentions of the proprietors may still fall short of achieving the necessary compliance with DDA2004. Q: Having just taken over as manager of a small recruitment firm, I have started to receive resistance from my Deputy Manager (who was the Acting Manager before my appointment) and several other members of staff. How can I overcome this and future potential conflict? Keith Rowe of DILIGENCIA replies: There is no easy answer to this type of situation as the reasons for the resistance may be varied, ranging from jealousy on the part of the Deputy Manager to (misplaced) loyalty to him from the other members of staff. The following may help. Do not let the situation continue, as the longer it goes on the more 'entrenched' the people and their resistance may become. Before you raise the matter with anyone, list specific examples of the areas of resistance/conflict and try to identify the implications of these for the organisation. Ask yourself whether any of the resistance is due to anything you have done or said - or the way you have done or said it. Do not try to tackle all the resistance at once: plan some order of priority. Talk to the Deputy Manager first. Do so off site if possible in a relaxed, but not too public, environment. Explain that you believe there is resistance to you and specify some, but not all (at least at this stage) of your examples.
Explain that success, in a very competitive business such as yours,depends on people working as a team and that if people do not co-operate or if they play office 'politics', the clients will suffer, the competition will gain and your branch will all lose.
Ask what dissatisfaction or fear lies behind the DM's resistance
Depending on the answer to the above, ask whether the individual feels they are justified in blaming you, or the organisation for the way he/she feels
Explain to the DM your aspirations for the Branch and seek to get his her agreement on them and how they might be achieved.
Ask the DM what his/her personal aspirations are and suggest that they might be better achieved with your support rather than without it but that support has to be mutual
Do not seek to achieve too much at this first meeting. Do not ask for a commitment that the resistance will stop but that the DM should go away and think about it.
Ask the DM whether there is anything he/she wants to say to you about the situation and/or their ideas for resolving it.
Set a date for a further meeting. (This will indicate that you are not prepared to let the matter remain unresolved) You may find that if you can get the DM on your side the others will stop their resistance. If not, you will need to tackle them one at a time in a similar manner to above. (Do not do this as a group unless you are confident that you can handle it) If all else fails you will need to consider invoking the disciplinary procedure, with the knowledge of your company's HR department, as all employees owe their employer the duty of good faith and good performance.
Resistance to your wishes and instructions/requests when you have tried to resolve it is a clear breach of contract.
Good luck Q: I've evidence that a long- serving employee is stealing from the till. Can I sack him on the spot? Simon Jones of Ariadne Associates replies: If you want to avoid an unfair dismissal claim, the answer is NO! You should follow the steps below: a) Suspend the person on full pay, pending an investigation.
b) Gather together all the evidence, including any witness statements.
c) Call a formal disciplinary hearing, giving reasonable notice and allowing the person to be accompanied by a work colleague or trade union official (not a solicitor/CAB worker).
d) Allow the person to put forward their defence, and question any evidence or witnesses.
e) Weigh up all the facts and make your decision.
f) If you decide to dismiss, ensure that there is an appeal process. No matter what the evidence, you should not prejudge the issue. You also need to remember that you only need "reasonable grounds" - not cast iron evidence - to come to a decision to dismiss someone. Finally, provided you follow any timescales laid down in your procedures, there is no reason why the steps above shouldn't be done fairly quickly.
Q: Is it appropriate to include a salary in any job advertisement? Bob Manuel of Charter Solutions replies: Our view is the salary should be shown in any job advert. Recent research has indicated the four most important things anyone looks for in a job advert are: the job title, who the job reports to, a brief description of the role and the salary. In addition to this, it acts as a self-screening mechanism to ensure the most appropriate individuals apply for the position. There is no legal obligation to do this. Q: WE have an existing Management team but do not have a formal job description /appraisal process in place. Where can I get help to introduce these into the business? Jeff Colligan of Wentworth Consulting replies: Below we have attempted to provide briefly a few bullet points around job descriptions and the appraisal process. Greater Merseyside Enterprise have a number of accredited advisors who can help you with designing a job description system which will fit your needs and your business culture. Furthermore there is the possibility of grant aid towards outside fees on this area. If you are a member of a trade association or body, you may find that they have the provision of support too. Job Descriptions: Why have them?
1. Helps clarify roles and responsibilities for all concerned
2. Expectations are agreed and is an integral part of a performance appraisal system
3. Is part of 'best practice' people management e.g. Investors in People Can be written or agreed with people, depending on various organisational factors What to include?
1. Job title
2. Main purpose of job
3. Main tasks/duties
4. Authority/Responsibility
5. Scope of the job Make sure you never overstate/understate the job. The wording must not discriminate against sex, race, etc Appraisal Process Is supposed to be highly motivational - however, can turn into a paperwork exercise if not careful. Two things are needed to ensure an appraisal goes well: 1. An effective System
2. Trained Appraisers An effective System
1. Design the system with care
2. Involve the staff
3. Agree the criteria
4. Choose a ranking/rating scale that is appropriate
5. Establish timescales and keep to them
6. Review and improve the system Trained Appraisers
1. All appraisers should attend training - no exceptions!
2. Ensure that appraisers know the system
3. More importantly, they should:
Be good listeners
Be able to use different types of questions
Be able to agree goals and review performance
Understand feedback and motivation techniques
4. See 1. TIPS
The first time people have an appraisal, err on the positive side, look for the things that people have done well, focus on training and development, and establish goals and objectives The next time they are undertaken, review the goals and give feedback. Feedback and motivation are two powerful tools - get to know them intimately! The timing of the pay negotiations/awards and the appraisal need to be carefully considered Get help from someone outside of the organisation or a specialist. This will ensure everything is fair and equitable
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