Cristo es el amigo y confidente

The findings above suggest the role and focus of UK HR practitioners was on provision of support to management and achievement of the business’ objectives. Consequently, it is unsurprising that amongst this group of UK participants the emphasis was not on whether the proposed action was compliant with employment laws, but, as one lawyer explained, whether: “HR [can] avoid the costs of non-compliance” (L1; emphasis added). The demands and values of a corporate-based logic appeared to be strengthened by a lack or acceptability of the consequences for non-compliance in the UK context. The following sections present findings regarding the influence (or lack thereof) of the financial consequences of a proposed course of action, and the associated adoption of a risk-management approach to assessment of the situational cues present.

6.2.3.1 Financial consequences

When faced with a matter covered by employment laws the findings suggest that the UK HR participants in this study would engage in a process of considering what is best for the business under a corporate-based logic. This process involved taking into account the financial consequences of non-compliance with different employment laws. Depending on the circumstances the appropriate approach may involve compliance, but that did not appear to be the default position.

The findings set out above regarding HR practitioner work-identity and career trajectory refer to the potential differences in the approach taken to employment laws by senior and junior HR practitioners. The participants that referred to these differences came from large organisations (the smallest of which had over 3,000 employees). In these organisations junior HR practitioners were perceived as handling transactional matters, following standardised procedures and the letter of the law for the bulk of the workforce (HR4; HR28; HR29). A HR director explained that the reason for this was because of

the costs and time that would be involved if compliance did not occur (HR4; property services). The workforce would be more litigious, the organisation would need staff to handle the claims and line managers would be distracted from their own work in order to handle, “…that kind of noise” (HR4). Accordingly, these findings may be interpreted as meaning compliance was motivated by costs concerns connected to the number of employees involved, rather than an inherent respect for following the law. This interpretation is further supported as each of these three participants also referred to situations where they had arguably been involved in non-compliance at the same organisation. One of these participants explained that if people are treated fairly they will never seek legal advice about their rights and entitlements (HR4; property services); another described the way senior staff were treated as “not legal!” (HR28; manufacturing); and the third referred to employment laws as guidelines and outlined how she was unable to get partners in the firm to performance manage legal staff (HR29; law firm).

Only one participant, a lawyer, referred to a UK employment law that contained such clear and significant financial consequences that compliance would 'make sense’ to affected businesses. He described how the financial penalties for breach of statutory, collective redundancy consultation requirements can put: “…a break on the business

decisions to make sure that you jump through the right hoops” (L2). (It should also be

noted that breach of these consultation requirements can result in a criminal prosecution for which directors can be held personally liable (Trade Union and Labour Relations (Consolidation) Act 1992, s194)). This finding suggests that market-based incentives in terms of clear and substantial financial penalties for breach of employment laws may help influence a compliance approach. However, this was the only employment law referred to in this way by the UK participants.

6.2.3.2 Risk-management approach

For other employment laws participants indicated that the costs that may result from non-compliance would be weighed against the risk of the employee making a claim, and the time that would be saved in, for example, not following a necessary procedure (HR4; HR26; HR27; L24). A HR director explained:

“You need to think of it as a risk probability matrix, so um, before you put

time and effort and resource into every tiny little thing you could possibly be getting wrong, you need to think about, well how much money will it cost us and is there a probability that’s ever going to be brought to the table, before you decide” (HR4; property services).

Another HR director provided an example of how this may work, describing situations when she had been informed by management that an employee was no longer needed. In this scenario she would discuss the, “trade-off”, between risk, cost and time with the manager involved:

“…if you want to circumvent a process you have to understand that that

will speed it up, but the cost that you may end up paying will be significantly greater. Whereas if we do this by the book, in the right way, then yes it will take a bit longer but we will get a lower- so, so, where are you prepared to compromise? And you have that conversation up front, because actually then when you go into that process you both know, you and the manager, exactly where you want to get to and where the- where the compromise points are and how you manage it” (HR27; charity).

Participants also indicated what may happen if the factors involved in this ‘trade-off’ changed, and how the balance may alter depending on the employee involved as discussed above. Lawyer participants referred to the system of employment tribunal fees that had been in place in the UK (see chapter 5; background context), and how this system had deterred low paid employees from making claims. As a result, the risks associated with non-compliance were reduced and a lawyer described her clients’ approach in these circumstances as, “…more bullish” (L24). She added that the advice she gave to clients had also changed, and she may recommend clients:

“…take a risk on it, because they’ve [the employee] got to cough up and

A HR manager also commented on how these fees had altered her assessment of risk:

“…we might have been subconsciously a bit more willing to take a risk

on things because we knew.. that, you know, I think it’s very unlikely that person might bring a claim because they would have to pay x amount of money” (HR26; accountants).

The findings also suggest that perceptions of risk may vary depending on the level of sensitivity of the organisation to the issues involved, providing another reason why the approach taken by HR practitioners toward employment laws may be heterogenous. A head of HR at an international law firm referred to the approach taken to maternity leave: “…under no circumstances does anybody get to flex our policy” (HR29). The reason for this was: “…the risk is too high.. the risk of treating pregnant women

differently is too big” (HR29). This participant’s perception of the risk involved may

relate to the nature of two out of three claims made against the organisation and heard at an employment tribunal in the last ten years. These claims involved sex discrimination. However, for HR practitioners and organisations not exposed to such claims, taking a compliant approach to sex or maternity related discrimination laws may not hold such importance. A lawyer explained that:

“…it is not unlawful to sack somebody who is pregnant, one just needs to

have a fair reason or if you don’t have a fair reason for doing it you need to be able to pay” (L24).

Framing situations and matters covered by employment laws in terms of risk appeared to concentrate attention on the business and its (financial) objectives, rather than seeing compliance as an end in itself.