Risky Business

I’ve been doing a lot of driving this year, much of it in long stretches of 50 mph limits on various motorways across the country.  As the traffic approaches the reduced speed limit, we all slow down.  We know the average speed cameras are watching.  As we pootle along at 50 mph, every so often a car will tank past at well over 60 mph.  “More fool them …” we shake our heads “don’t they know there are average speed cameras?”  They probably do, but for whatever reason they have decided the benefit to them of exceeding the speed limit is greater than the risk of being caught and punished.

You can only drive a car once you have passed your driving test.  You will only pass your driving test if you can demonstrate you are competent at not only driving a vehicle but also being able to correctly identify the road signs and markings.  You know if you get caught speeding, there are legal consequences.  You know if you misjudge a parking manoeuvre, you’re probably in for a trip to the body shop.  You know about all of this before you are let loose on the roads by yourself.

But no-one has to sit an HR test before employing people.  The business is driving full speed ahead but doesn’t necessarily know the rules.  If a business doesn’t know the rules then it certainly won’t know if it’s broken them, or indeed the consequences of doing so.

In our experience, this plays out in one of 2 ways, neither of which are particularly good for a business in the long run.

1.    Ignorance is bliss … until …

The business organises itself purely according to commercial objectives and these objectives drive HR practice and procedure.  In many cases staff can shut up, or ship out.  This works for a time.  Some businesses exist very successfully using this approach for many years, and may never suffer any consequences due to their lack of awareness of employment law. Others are less fortunate.  I once had a client who only had one employee.  The employee fell pregnant.  The client felt unable to accommodate the situation being such a small employer and told the employee that her services were no longer required (without taking advice).  By the time the client came for my advice their actions had already given the employee a cast iron case of pregnancy discrimination which cost many thousands of pounds to resolve.

2.    Paralysed by fear

The flipside to blissful ignorance is the business that knows there are rules but is not sure what they are or the consequences of breaking them.  Unsure of what it can and cannot do, the business ends up doing nothing with problem staff.  Underperforming employees get left to their own devices because “they have rights”.  The business owners moan about “ridiculous” employment laws, without fully understanding their options.

Trusted HR advisers

In many cases, a quick phone call to a trusted HR adviser can save huge amounts of time and money.  In our blog post, Tell Us Everything, we stressed the importance of giving professional advisers the complete picture.  In HR matters, an awful lot depends on the circumstances of the business and the particular facts of your case, so having an adviser who knows and understands your business will save you time and money in the long run.

Can I do this?  Should I do this?

No HR adviser should tell a business that they can’t take a particular course of action.  Ultimately the business can do what it wants.  It’s their business and it’s their decision.

Whether or not a course of action should be taken, is a decision for the business to take based on an assessment of the risks versus the benefits of doing what they are proposing.

The HR adviser’s job is to collect the relevant information from the business to assess the legal position, the risks and potential costs of the preferred course of action.  Is the preferred outcome the equivalent of parking on double yellows, or is it blasting through a 50mph limit at 90mph?

Once that assessment has been made, it is up to the business whether they follow that through, with the support of their HR adviser.  Is the benefit to them of “exceeding the speed limit” greater than the risk of being caught and punished?

Sometimes the answer will be yes, and sometimes no.  When it is an informed decision however, the business can be fully prepared for the potential fall-out rather than being ambushed by a consequence it had no idea to expect.

If you would like to get in touch and benefit from our employment law or HR advice, please get in touch with Mark or Dawn using the contact form here.