Previous Article Next Article Related posts:No related photos. Are HR and IT friends or foes?On 20 Aug 2002 in Personnel Today Linda Cooper, director of consulting with odysseyzone.com, argues that alittle communication between HR and IT could go a long way HR and IT departments have a lot in common. Both are appreciated by theboard as essential to the organisation, and both are likely to be in the firingline when things go wrong. They will also seldom receive praise when things goright. With these parallels you may expect HR and IT to be brothers in arms, yetnothing could be further fromthe truth. IT people may perceive the HR department as an administration factory,contributing little to their own needs except an improved ability atform-filling. At the same time HR people view the IT function as unhelpful. The IT teammay resist devoting time and resources to developing technology to supportconstantly changing HR processes when they can work on a more interesting andglamorous finance system that will catch the attention of the board. If both departments spent some time discovering where and how effectivecollaboration could add value to the organisation however, both would be morepopular with the frontline business functions. The real task of the HR department is not routine administration, but tofacilitate strategies and processes that align personal and corporateperformance and drive performance standards up. But however elegant the designof processes, the implementation is invariably stalled if it is paper-based.Often beset by bureaucracy, real leverage is lost, given the impossibility ofgetting good management information back to the top and centre quickly. However, the IT people are probably right to resist building bespoke systemsto support changing HR processes. Their role in this case is to provideinvaluable intelligence by identifying and recommending outsourced HR systemssuppliers. For example, 360-degree assessment is widely seen as a key process forfacilitating personal change but is still not widely implemented because HR andIT have not understood how to collaborate. Conventional data collection methodscreate expense and bureaucracy that is usually seen out of proportion with thesustainable value it delivers to the business. Were HR to explain its needs to IT, it could rapidly identify three or fourhigh-quality external suppliers of ‘state of the art’ web-based 360-degreefeedback technology with no need for any server installation or any furthersupport by the IT function. Web technology now provides universally available,low-cost delivery mechanisms for assessment applications that massively reducethe administrative burden of the process and provides high-quality, real-timemanagement information. HR adds value by designing high quality processes; IT by facilitating thetechnology support. By becoming allies, HR and IT can start delivering realadded value to the business. Linda Cooper is director of consulting services at odysseyzone.com www.odysseyzone.com Comments are closed.
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 them Flatley v The Society of MotorManufacturers and Traders, EAT An illustration of the very different tests for establishing unfair andwrongful dismissals * * * Flatley was summarily dismissed following the discovery ofdiscrepancies in his expense claims. The employer considered his conduct to beserious misconduct, rather than gross misconduct. However, the terms of theirdisciplinary procedure allowed for summary dismissal as a possible penalty forserious misconduct. The employment tribunal rejected Flatley’s claim of unfair dismissal. Theemployer had carried out a reasonable investigation and there was sufficientmaterial to enable the employer to properly conclude that Flatley was guilty ofa very irresponsible, negligent and unhelpful approach towards expenses andthat he had been unco-operative during the disciplinary investigation. Theyalso considered that dismissal was a reasonable sanction, given that Flatleywas responsible for large budgets and as a senior employee would have known thathe was behaving in an unacceptable way. The tribunal however concluded that the dismissal was wrongful. There was noevidence of deliberate deception or dishonesty, despite Flatley’s evasivenessand his unsatisfactory explanation. They considered that by dismissing himwithout notice, the employer was guilty of a breach of contract. This decisionwas upheld on appeal. Key pointsIt is important to remember that the tests for unfair dismissal and wrongfuldismissal are completely separate and, as this case shows, it is possible for afair dismissal to nevertheless be a wrongful dismissal. Misconduct dismissalswill be fair where the employer has carried out as full an investigation as isreasonable, conducts a proper disciplinary hearing and, on reasonable evidence,forms a genuinely held belief in the employee’s guilt. Dismissal must also bewithin the band of reasonable responses. For wrongful dismissal, it will have to be established on the balance ofprobabilities that the employer had committed a fundamental breach of contract.This case does not set out any specific point of principle, but the tribunalfelt that on these facts, there could be no gross misconduct unless there wassome element of dishonesty or deception. What you should do When dismissing for misconduct offences: – Ensure that the misconduct in question has been fully investigated. Don’tleave loose ends – Ensure there are reasonable grounds for concluding that the employee isguilty – Don’t automatically assume that dismissal is the appropriate sanction –what are the alternatives? Why is dismissal justified? – Consider the impact of any contractual disciplinary procedures – these mayaffect the sanctions that can be awarded – Why is dismissal reasonable? How does this sanction compare with thetreatment of employees in similar cases? – Remember that to defend a summary dismissal against a wrongful dismissalclaim, you need to be able to establish on the balance of probabilities thatthe misconduct took place. If in doubt, consider dismissing with a payment inlieu of notice Hashimoto Ltd v McIntosh, EAT An illustration of the dangers in taking up inflexible positions * * * McIntosh claimed unfair constructive dismissal and disabilitydiscrimination. He resigned after a lengthy period of sick leave due to”depression and anxiety”. His sick pay had been suspended while hewas off work and he had been subjected to a disciplinary investigation. Thisarose after he was seen allegedly drinking alcohol at a leaving party for anotheremployee 10 days into his sick leave. Theemployer advised McIntosh his sick pay would only be reinstated after furtherinvestigation when he returned to work, taking issue with him being at theparty while absent on the sick. McIntosh protested, but the employer refused tomove and ultimately McIntosh resigned. The EAT agreed with the tribunal’s conclusion that there had been lessfavourable treatment for a reason relating to McIntosh’s disability and thatthe employer could not justify that treatment. The employment contract providedfor disqualification from sick pay only if the employer was satisfied there hadbeen abuse or misrepresentation – it did not allow the right to sick pay to besuspended. The employer could not have been in a position to disallow McIntosh’s sickpay entitlement until they had held the disciplinary hearing. They knew theywere causing him serious financial hardship, yet maintained their stance forseveral months during which McIntosh’s GP certified him as unfit for work. They could have investigated earlier without McIntosh returning to work.Even though there were reasonable grounds for suspicion, no reasonable tribunalcould have regarded the employer’s reason as carrying substantial weight for withholdingsick pay for a sustained period of many months and in breach of contract. What you should do – Always check your contracts and procedures. Do they allow the action youpropose to take? – Remember that the employee does not have to return to work before adisciplinary incident can be investigated – is the employee fit to appear at adisciplinary hearing during his sick leave? – Always ask yourself whether you are being reasonable. If you are taking upentrenched positions, is there a compromise or a means to break the deadlock? – Leaving disputes to fester for months risks triggering litigation The Scotts Company (UK) Ltd v Budd, EAT EAT considers the paradoxical results of the interplay betweencontractual notice periods and rights during statutory minimum notice * * * Budd was dismissed after long-term sickness absence of two years. Hehad long exhausted his right to contractual sick pay. His contract provided fortermination on giving 13 weeks’ notice. In the event, he received 12 weeks andtwo days’ notice and was not paid during his notice period. He claimed thecompany had failed to pay him a statutory minimum notice payment. The EAToverturned the tribunal’s decision that Budd was entitled to this payment. Key pointsThe issue in this case was the rather curious effect of the statutoryminimum notice provisions in the Employment Rights Act 1996. Budd’s entitlementto statutory minimum notice was 12 weeks. The Act also provides that during thestatutory minimum period of notice, an employee who is incapable of workbecause of illness or injury is still entitled to be paid their normal pay.This rule applies even if under the contract itself, an employee would not beentitled to any sick pay for that period. However, section 87(4) ERA disappliesthis rule where the notice given by the employer to terminate the contract isat least one week more than the statutory minimum period of notice. Here, Budd’s contractual notice period was one week in excess of thestatutory minimum. If Budd had not received at least 12 weeks’ notice, hisclaim to be paid during the notice period would have succeeded. He argued thatalthough the contract required at least one week’s notice more than thestatutory minimum, he had in fact received just over 12 weeks and therefore thecompany should not be able to rely on the length of a contractual notice periodwhich he had not received. However, the EAT rejected this argument – Budd hadreceived at least the statutory minimum, the contractual notice period exceededthe statutory minimum by a week and therefore Budd lost the right to be paidduring his notice period. What you should do – If an employee is off sick during the notice period, remember that theymay have the right to be paid even if contractual sick pay is exhausted – The key to determining whether payment is required is whether thecontractual notice period is a week or more longer than the statutory minimum – Remember to calculate the entitlement to statutory minimum notice at theprojected date of termination, not the date on which notice is given – Consider adopting notice periods which are longer than the statutoryminimum – this case shows that even a minimal increase on the statutory minimummay save substantial cost Case of the month, by Christopher MordueHSBC Bank plc v Clarkson, EAT An important decision on ‘past disability’ under the DDA * * * * * Clarkson was employed by HSBC for 20 years until he tookill-health retirement in 1999. He had suffered depression in 1997 followingpromotion and reverted to a lower grade post. In 1999 he had difficultiesconcentrating and his relationship with colleagues deteriorated. His doctorsuggested he was suffering from post-traumatic stress disorder relating to aroad accident in 1966. After suffering blackouts, Clarkson was signed off workuntil his ill-health retirement. He complained of disability discriminationsaying the bank had made insufficient efforts to relocate him. At the employment tribunal, the preliminary issue was whether he was‘disabled’. A medical expert reported that when examined in 2000, Clarkson wassuffering post-traumatic stress disorder but this had developed afterretirement and was not considered to have a long-term substantial adverseeffect on his ability to carry out normal day-to-day activities. He could notbe considered as disabled solely on the basis of this condition. The next issue was whether he qualified as a ‘disabled person’ on thegrounds of ‘a past disability’. His previous episode of depression in 1997 hadnot lasted for 12 months, suggesting that on its own, it was insufficient toamount to a disability. The position was unclear as the medical expert haddescribed the depression as “transient” in the periods 1988-1990 and1998-2000. Because there were two episodes, the tribunal considered the condition hadrecurred. The first episode was to be regarded as having a continuing effect soconsequently, Clarkson was disabled. The EAT reversed this decision ruling thatthe tribunal’s approach was flawed. Key pointsIn any case of disability discrimination, it is necessary for the applicantto show a physical or mental impairment which has a long-term substantialadverse effect on the ability to carry out normal day-to-day activities. Themost straightforward definition of ‘long term’ is where the adverse effectslast for at least 12 months. In this case, neither episode of depression was,on the face of it, of sufficient length. However, the DDA also provides wherean impairment ceases to have a substantial adverse effect it is to be treatedas continuing to have that effect if it recurs. The tribunal’s error was automatically to regard two instances of the sameproblem to be linked, each causing a substantial adverse effect. The EATstressed that in any case of past disability, that disability must itself havea substantial and long-term adverse effect. It was necessary to considerwhether the first period of depression had recurred, or whether the secondincident was entirely separate. The tribunal should also have considered whatthe expert meant by the word “transient” – whether this meant thedepression was transient within each period of depression, for example, orwhether he was saying there was a constant underlying state of depression withtwo islands of symptoms. What you should do This case illustrates the complexity of the definition of disability underthe DDA, and difficulty of placing depressive episodes within that framework.It illustrates the importance of dealing properly with employees claiming tosuffer stress-related illnesses. – In any disability discrimination claim, unless disabled status is obvious,a medical report is necessary to understand properly the nature and effects ofthe physical or mental impairment in question – In a case where the disability is alleged to be shown by two separate occurrencesof the same problem, and the effects of neither condition have lasted for 12months, it is necessary to consider whether these are truly separate conditionsor whether some link between them means the first condition can be said to haverecurred. It is important to obtain medical expert opinion – In many disability discrimination cases, the issue of disability issecondary to the question of whether the employer can justify the allegeddiscriminatory treatments – The key questions are: do you have a good reason for the action youpropose to take and have you considered all the alternatives? – Always consult the disabled employee – ask how the medical condition mightbe relevant to their treatment and what alternative courses of action they canidentify Case round upOn 1 Dec 2002 in Personnel Today Comments are closed. Related posts:No related photos. Previous Article Next Article