What would we do if we were Mike Ashley?

Mike Ashley has come under heavy criticism for underlying staff conditions at Sports Direct warehouses around the country. Some of this criticism is no doubt justified, but it is easy to kick the Managing Director when he is in front of the Business, Innovation and Skills Committee. The company has undoubtedly gone too far with their policies, but how does your business handle these common staff problems?

Disciplinary

Sports Direct had implemented a “6 strikes and you’re out” disciplinary policy. What amounts to a “strike” can be fairly minor forms of misconduct such as taking too long in the toilet or chatting too much on the shop floor. Although a lot can be said for the clarity and consistency of the policy, it is not in line with the ACAS Code of Practice, a Code that all employers should follow.

It was said that this policy struck fear into the employees. That by itself does not make the policy unfair. A manager may choose to motivate their staff as they deem appropriate. What is unfair is the lack of subjective account of any mitigating circumstances. It appears that circumstances were not taken into account, with a mother rumoured to have given birth in the shop toilet for fear of taking an absence and earning herself a strike.

Staff absences

An employee should not be punished periodically for being absent from work with good reason. Absence procedures should be clear and followed. If employees breach these procedures (eg by failing to report their absence at the beginning of their shift) or a pattern of absence starts to occur (eg frequently off on a Friday afternoon or a Monday morning) then the employee should be called into a disciplinary meeting to answer any allegations. An employee should always be given the chance to answer any allegations. It is up to the employer to decide if any explanation is satisfactory.

Time-keeping

Mike Ashley himself admitted that a policy which fined employees 15 minutes’ pay even if they were only 1 minute late was probably unfair. Again, if this happens once or twice, it would usually be reasonable to have a quiet word with the employee in question. If you start to see a pattern emerging, then you should think about having a disciplinary meeting and considering the possible disciplinary sanctions available to you.

Theft

Having obviously had previous issues with theft, Sports Direct had set up a rigorous 15 minute search system after each employee’s shift. Again there is nothing unfair with this on the face of it. Theft is clearly an example of potential gross misconduct and can be investigated. However despite the workers being forced to undergo these searches, they were not paid for this time and, as a result, were paid below the minimum wage. It is important to remember that “working time” amounts to any period in which the worker is working, at his employer’s disposal and carrying out his activities or duties. A blanket search over all employees would amount to the worker carrying out his duties and being at the employer’s disposal, and the worker should therefore be paid for this time.

Advice

The above are problems faced by the majority of employers in the UK and there are a number of ways to skin a cat. For advice on particular commercial measures that can be tailored to suit your business, and to avoid ending up in front of the Business, Innovation and Skills Committee, speak to a member of the Blackadders Employment Team!

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Put on your dancing shoes – Dress code at work

Last month saw the widely reported incident concerning a female receptionist who was sent home from work after reporting for duty, on her first day in the job, wearing flat shoes.  She refused to wear the 2 – 4 inch heels allegedly required by the employer and was asked to leave.  The employer said that they would review their personal appearance guidelines, following comments that such a practice could be discriminatory.

Employer policies

Uniform policies/dress codes/personal appearance guidelines (or whatever else you want to call them) throw up a number of employment law considerations.  It is not uncommon for employers to impose rules on appearance.  There can be a number of potential reasons for this.  Maintaining a corporate image and health and safety objectives are among but a few of the reasons.

Be wary of discrimination

Employers are entitled to set required standards of appearance.  They are also entitled to enforce these standards, for example, by reference to a disciplinary policy for non-compliance.  However, it is necessary to be mindful of certain issues.  In particular, employers must not discriminate in setting their “fashion” goal posts.  In the scenario reported above, arguably, a requirement for women to wear sexy heels could offend against sex discrimination.  A man would not be subjected to the same requirement.  In addition, think of the health and safety angle.  I’ve never worn a pair of high heels (honestly) but they look very uncomfortable.  It is not controversial to suggest that being on your feet all day in high heels could have longer term health implications.  Would such a policy give rise to a personal injury claim in the future?

Religious dress

Discrimination issues also arise in the context of employees who dress in a particular way for religious reasons.  An employer who wishes to ban certain items of clothing will need to have legitimate business or safety requirements for doing so.  For example, in one case, a nurse was not permitted to wear a religious cross on top of her uniform in order to protect the safety of patients.  This was held to proportionate and was thus not discriminatory.

ACAS

ACAS have issued a useful guidance covering some of these issues.  It is available here.

If you are unsure of what you can can’t do in relation to workplace attire, take advice.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk