La Iglesia son el Papa, los obispos, los sacerdotes

The sections above emphasise how the UK HR participants appeared to identify with their respective businesses in accordance with a corporate-based logic, but also how they advised management on the application of employment laws. Provision of this advice involved interpretation of those laws. Findings regarding the way HR participants interpreted employment laws are set out first, followed by findings regarding the way lawyers were used to help with this process of interpretation.

6.1.2.1 Interpretation: HR

Where participants referred to the nature of UK employment legislation it was to highlight how they are not ‘black and white’, and how HR practitioners need to be comfortable with working in the ‘grey areas’ (HR26; HR28; HR29). A head of HR explained that senior HR practitioners need to be:

“…able to adapt to the grey areas, and we say it quite a lot, myself and

the managers I work with, our life is involved around, we operate in the grey areas pretty much most of the time. You know, rarely is anything black and white” (HR29; law firm).

Reference to operating in the ‘grey areas’ indicates that a process of interpretation is taking place, and whose interests are prioritised in that process provide some insight into which institutional logics influenced the approach taken. That the participants in this study generally framed matters involving employment laws in commercial and pragmatic terms rather than in terms of legal obligation and compliance suggest that a corporate-based logic is of significant influence. This influence is particularly evident in a statement made by a head of HR at an international law firm, who explained HR has to:

“…follow the employment law guidelines that have been set out for

organisations in the UK as best we can.. without, I’m glad this is anonymous! Without being slaves to it” (HR29; emphasis added).

Describing laws as “guidelines” positions them as something that is optional. This approach to employment laws and prioritisation of what the business wants may also lay behind the following statement by a head of HR at a consultancy firm:

“…wherever I work as an HR person it’s part of my job to advise the

company. I suppose the juggling act sometimes is between this is what the law says and this is a commercial decision that we want to make.. but I don’t, I don’t see that as a conflict situation, I think that’s just sort of taking a range of factors into account and then, you know, trying to get to your end solution as quickly as you can” (HR25).

The influence of a corporate-based logic can also be seen in the paradox referred to above, of wanting to avoid the requirements of employment laws without having to actively choose to not comply. Taking this approach requires a particular type of interpretation and manipulation of the law, and it also enables the HR practitioner to present itself and the organisation in (relatively) socially desirable ways; for example, a head of HR explained:

“…it’s about making sure that we are compliant with the law, but actually

bend that in a way that suits the business as well, and sometimes that might not always match up… I appreciate and understand that we absolutely have to reach this end goal [as determined by the business].. Sometimes we might have to tip the balance so the business wins, and that’s just the way it works” (HR5; law firm).

The ability to take the law and creatively implement in ways that suit the business was variously described as, “…a bit of an art” (HR29; law firm) and, “…a bit of a black

art” (HR28; manufacturing). The focus appeared to be on moulding the law to the

indicated how she would creatively interpret the benefits and potential consequences associated with different employment laws in an attempt to influence a compliance approach. She explained how she has to translate her advice on legal matters when presenting it to the board of directors:

“…you have to do it in tables and graphs and numbers and money

because that’s how the Board think. You can’t say to them we’re going to do it because it's just the right thing to do. A lot of HR, a lot of my team are like that. Um, so they’ll use those words and then I go away and put the numbers in because they just don’t think in the way that accountants think ” (HR4; property services).

In order to get the attention of the board and ensure compliance was taken seriously, this participant explained how she had to effectively ‘sell’ the need to comply and use the correct terminology. She provided the example of diversity, explaining that the board may understand the benefits of having a diverse workforce but it does not see how diversity impacts the ‘bottom line’. As a result she has to, “…get creative” (HR4) to prove how diversity can bring financial benefits. Emphasising the dominance of corporate (and market) based goals over the approach HR practitioners can take toward employment laws, she also described having to overstate the financial consequences of failure to pay the minimum wage:

“I keep talking these sc-ary numbers. So for us if we get it wrong it’s

worth about thirty six million quid and I purposely calculated that in a really big number kind of way to keep saying ‘doing nothing is not an option’… So I do signpost quite scary, I purposely do it and make it sound bigger and more problematic than it is” (HR4; property services).

This HR director was the only participant to indicate falsifying the penalties that could result from non-compliance with employment laws; other participants indicated that the business’ goals may be prioritised instead. That she felt the need to do this suggests the extent to which the approach of the UK participants in this study was dominated by a corporate-based logic, as this was the only way to get the attention of the board. It also

highlights the arguable ‘weakness’ of the state-determined consequences for non- compliance.

6.1.2.2 Interpretation: legal advice

The HR participants in this study did not always interpret employment laws in isolation and referred to taking legal advice on what a particular law requires and/or how to apply it in a particular situation (HR4; HR5; HR25; HR26; HR27; HR28; HR29). Participants referred to receiving a range of different types of legal advice from strict obligatory interpretations to more flexible interpretations of the law focused on achieving the outcome desired by the organisation.

Where HR participants had taken legal advice and where that advice was at the strict interpretation and compliance end of the advice spectrum, they were universally disappointed with it (HR26; HR28; HR29). That disappointment seemingly arose from the advice not drawing on and consequently being incompatible with corporate-based goals and demands. A head of HR at a law firm referred to advice from:

“…employment lawyers that you just think, that’s not practical, that’s far

too risk averse, it’s not going to achieve what we need to achieve” (HR29).

Similarly, a HR director referred to compliance-focused legal advice as, “…a little bit

unrealistic” and, “…just incredibly blunt and therefore doesn’t always have perfect utility” (HR28; manufacturing). To illustrate how such advice may be problematic, a

head of HR at an international law firm (HR29) described a situation where an employee had sought disclosure of all relevant documents regarding a potential claim. These documents included: “…an extremely unprofessional chain of emails saying

things about the employee that you would never want to have in writing!” (HR29). She

received conflicting advice from two internal employment lawyers:

“I had one employment lawyer saying you must disclose everything, you

I had another employment lawyer internally saying, no, don’t send them. It doesn’t change the reality of this situation and all you’re going to do is offend somebody unnecessarily… Needless to say, I didn’t include those emails!” (HR29; law firm).

Later in the interview this participant described the lawyer who recommended disclosure of the emails as, “…legally correct. Course they were..” (HR29), but the outcome was one that made sense to and was in the interests of the organisation. In distinguishing herself from a ‘legally correct’ approach, which the employee concerned may have considered the best outcome, she saw and approached this matter through the lens of a corporate-based logic.

Another participant also referred to similar problems with advice from ACAS (HR26; accountants). Describing her experiences with ACAS, and how they do not help resolve the paradox of complying without complying, a HR manager explained that she does not:

“…find them particularly help- well, it’s not that they’re not helpful, they

tell you the law, but they’re not commercial in.. well, you know, the way they think things through. They’re [ACAS] very black and white, and.. they will just say, ‘well the law says you can’t do this’. I’m like, ‘yeah, I know, but can you suggest a way that we might resolve the situation without breaking the law?’. And I find them really difficult to- well they can’t come up with any good ideas in that situation” (HR26;

accountants).

While it was beyond the scope of this study to explore the nature of the relationship between HR practitioners and their legal advisers the UK findings suggest that participants would ‘advice shop’. Participants sought the advice that best suited their identity and the role(s) played, blurring the lines between whether it is lawyers who suggest a game-playing approach to compliance or whether HR practitioners (and senior management) expect or demand this type of guidance and interpretation.

In relation to interpretation of laws by the lawyer participants in the UK, a corporate- based logic also appeared to dictate the approach taken. If compliance was the focus, then it may expected that attention would be given to meeting legal requirements. Any ambiguity in the law may then be interpreted and framed in terms of satisfying the ‘spirit’ of the law concerned, however, this approach was not evident. In relation to unfair dismissal laws, a lawyer explained:

“…it’s not like compliance as in have I got the right wiring in my office,

it’s compliance in the sense of.. have I actually actively not complied with a legal requirement? It depends how you frame what a legal requirement is in the dismissal context” (L2; emphasis added).

Another lawyer pointed out that this type of approach to interpretation was necessary to meet, “…commercial pressures” (L1), clearly indicating the heavy influence of a corporate (and market) based logic. Meeting the needs of the business - not the requirements of legislation - appears paramount and taken for granted. The norms of business seemed to take priority over legal institutions. Similar to the HR practitioner quoted above, who explained ensuring the business “wins” is, “just the way it

works” (HR5; law firm), this lawyer described:

“…the realities of running a business, it’s not that they don’t like women,

but that they don’t want to bother with maternity leave” (L1; emphasis

added).

These ‘realities’ and the prioritisation of business goals and demands appeared to be accepted and arguably supported by the wider institutional environment. A lawyer participant emphasised how both HR practitioners and legal advisers need to be proactive, because:

“…you have that inherent tension which employment lawyers face as

much as HR practitioners, is that if you are perceived as ‘no you can’t do that’, and everything gets the answer no, that’s not necessarily a way to

build a productive, commercial, pragmatic business relationship internally or externally” (L2).