Archive for August, 2018

Tattoos – LOVE OR HATE

The Law Surrounding Construction Employees With Tattoos   Tattoos have seen a massive surge in popularity in recent decades.  Gone is the notion that only criminals and sailors have tattoos, and figures published a few years ago in 2015 suggested that 1 in 5 people in the UK has a tattoo, with numbers predicted to rise.  So where does that leave employers?  Do you have to employ someone who has a tattoo if you don’t want to and what can you do if you discover an existing employee has been to get a tattoo over the weekend?   The Legal Standpoint   Currently, as the law stands, the rules are pretty ambiguous on both sides.  From an employees standpoint, being discriminated against because the employer doesn’t approve of your tattoo is actually not a crime.  There is very little you can do about not being employed because you have tattoos unless you are being discriminated against on the grounds of your beliefs or religion. Many employees find this harsh but that is the current standpoint, so it is up to the individual if they choose to ink their bodies. From an employer’s point of view, you can simply discount a potential candidate because if they have a tattoo, but is that wise?   Generally Speaking   While there are some employers that simply do not tolerate tattoos the more logical standpoint is to consider what you are potentially throwing away.  Does a tattoo impact on the person’s ability to do the job?  The likely answer is no.  In many cases most people can dress in such a way that tattoos are covered and you wouldn’t even know they were there.  Having a carte-blanche anti-tattoo policy is likely to prevent you from employing some jolly talented workers.   Do you have the right to ask for reasonable presentation? Absolutely   One thing that tends to be accepted both with workers and bosses across all industries are the head and face tattoos. These are a bit of a no-go area and to be fair most people do not choose these body parts as a tattoo location.   In an office, a manager could essentially be required to have a formal dress code which would by default cover all tattoos unless they were found on the hands and feet.  On a construction site, high visibility gear may well cover most tattoos but is it so bad if your employees are showing a tattoo because it is 31 degrees and you have allowed shorts on site for example?   Is it Offensive?   The bottom line is flowers, tribal patterns, animals and even some wording is perfectly acceptable and not set to cause offence.  Clearly tattoos that can be contrived as unsuitable, of an adult nature, racist, offensive or rude are not part of an image you would want to project as a company and without doubt, you can choose not to employ people who have such tattoos.   If you discover an existing employee has such a tattoo and is now wanting to have it uncovered in the workplace you would also have grounds for recourse.  Of course, some people have a particular dislike of tattoos and if you find them generally unprofessional, you could choose not to hire someone.  Many existing employees may well have tattoos on areas of the body that are never exposed in work and therefore the employer will never even know they are present, in which case it can be further evidenced that there is no impact on their work.   What Do Others Do?   Because all employers can set their own rules when it comes to staff tattoos the rules do vary, but organisations like the Fire Service and Police do permit their employees to have tattoos, provided they are tasteful, not offensive and again, do not adorn the face or head.   Facial tattoos seem to be associated with an intimidating persona which apparently is not an image such organisations want the public to see as they are there to assist and be trusted by the public.   Police officers have been seen on the beat in summer with tattoos visible under short sleeved shirts and again this undoubtedly does not impact on their ability to work.   Although tattoos are associated with the Navy, the Army also adopted a similar policy.  Recruits are advised to show pictures of tattoos when signing up and again face or head tattoos are prohibited. With these precedents in mind, it is fair to say that on a construction site there would be little cause for concern if the above criteria are met and to be fair, health and safety rules surrounding clothing may well mean most tattoos are covered.  In offices again, it would be reasonable to ask staff to dress in such a way as to hide their tattoos, but if the office does not have a public facing function other than by phone or email, would there be a need to insist on this?   The Bottom Line   The bottom line is that employees do have a responsibility to ensure they are suitably presented for work and employers should logically be careful not to discriminate by not hiring staff solely on the basis they have body art or tattoos, when they may be the most suitable and qualified candidate for the job.   Common sense would be the best guide and policies can be put in place that ensures all employees understand the company reasoning.  If an employee comes into the office one morning with a face tattoo – this would be a clear breach in policy and following protocol grounds for dismissal.   If you have a particular dislike or feel hand tattoos are also promoting a reduced image, then you can choose to exclude potential candidates on these grounds.   However, most people simply have tattoos with no desire to cause offence or fuss and as such, there is no reason for construction employers to not respect this.  In return, employees should accept reasonable requests to keep tattoos covered when needed.

To Vape or not to Vape at work?

How Does Vaping Legislation Impact the Construction Industry?   Over the last few years vaping has increased in popularity across the globe. It is touted as a healthier alternative to smoking and has helped thousands of people cut down on cigarette smoking and in many cases quit altogether.  The jury remains out on whether it is totally harmless or has side effects? The consensus seems to be that vaping is a step in the right direction when it comes to reducing smoking-related disease.  However, where does vaping fall for employers and do employees have any rights?  Are there any special considerations for the construction industry and what does the law say? This article addresses all these issues and provides food for thought for construction bosses everywhere.   The Law   Currently, in the UK, no legislation governs the use of e-cigarettes or vapes as they are known.  This means that a lot of staff in all industries have assumed they can vape at work.  In the construction industry, there have been reports of machine operators using their devices while the vehicles are in motion, which does not promote a particularly professional image and raises significant safety concerns.  The current laws basically leave workplace vaping rules to each individual employer so what should you be doing?   Health and Safety   In order to promote a fair workplace, it makes sense to apply rules to all areas of your business from field workers to office staff and this is one issue where that is possible.  Firstly, the vaping device contains a battery similar to a mobile phone, so if you have lockers for staff to leave mobiles while operating machinery on site, it would be reasonable to insist that vaping devices are left, after all, they could prove dangerous if crushed or dropped into working heavy plant.   Vape Breaks   Over the years we have seen changes to smoking laws which meant that smoking in public buildings became illegal and even outside there can now be restrictions. Generally, this meant workplaces, both onsite and office-based created smoking shelters outside and staff were given guidance on how they could be used.  Some workplaces have no time restrictions provided the employee clocks out to go and smoke; others say workers can only smoke during lunch hours – again the logistics fall to the boss.  Should vaping staff have to be the same?  Is it reasonable for a vape to be used at a desk for example?   Taking all staff into consideration   One of the issues with smoking is passive smoking. The same should logically apply to those who also do not wish to vape, therefore desk vaping is probably an easy ban.   While the water-based-vapour emitted may not be as dangerous, the long-term effects are not proven and it is generally considered that this should not be forced on those who do not wish to vape themselves.   The liquids have different smells and can negatively impact on people who have breathing conditions, those who are pregnant or those with other health conditions, so it stands to reason a designated space is made available for vape breaks.  However, consigning the vapours to the previously constructed smoking shelters is also a potential no-no.  If someone has actively chosen to give up smoking, they then do not want to have the second-hand smoke from other staff when they are using their vape.  This means you are looking for a second shelter or, potentially inside room, as vaping is not banned in public buildings.   On-Site   The same would apply to employees working on sites.  It indeed does not present a professional image if members of the public see digger drivers vaping in clouds of vapour while working away, so offering a designated area for vape breaks is the most logical outcome.  Again this would potentially need to be away from the smoking area which has to be outside.  You begin to get a picture of why employers are finding this stressful.  In many cases, it would be easier if the law made more explicit rules for vaping but in the absence, it is just down to each site to deal with.   Be Clear   While we have trails of paper that cover policies for health and safety, the best advice would be to create a vaping policy.   The law does not prevent employees vaping at their desk, but neither does it prevent employers from banning the practice. Whether you chose to add the vaping policy to the smoking policy or have them stand alone, the critical point is to ensure that all staff are aware of the rules.  It should also be clear that all staff, smokers, vapers and those who do neither, are being treated fairly and with respect. This saves potential dissension down the line.  The bottom line is you do not have to make any provision for vapers, but if you have made provision previously for smokers the precedent has been set and you probably need to do something. The alternative, which is also perfectly legal is to ban all vaping and smoking on site or in any offices, buildings or vehicles associated with the business.   Include Mobile Workers   Finally, be sure to include company vehicle use in the policy too.  We have already mentioned plant and machinery on site but what about the staff who may use a company car or van to get to and from locations. In many cases, the general consensus has been to ban all forms of smoking and vaping while driving company vehicles.  Either activity can be seen as a distraction to due care and attention to the road which again, if they are driving branded cars does not project the best image to members of the public. As long as the rules are clear and distributed to all staff and new starters then currently the decision is entirely down to the employer.

Gender Pay Gap

  Gender Pay Gap: Construction Exposed   The gender pay gap is something that always causes controversy in the work place.  In most cases, unless you ask, you will be unaware of what your colleagues are being paid, but when the facts come out exposing a pay gap that is apparently based on gender, it is unsurprising that lots of women are left feeling slighted.  Recently the construction industry has come top in a fact-finding mission that exposes gaps in equal pay, so for once the top is not a good place to be.   How Was This Exposed? 2018 saw a change to the law that meant companies had to report disparities in gender pay.  Coinciding with the new tax year, the new regulations have painted a naming picture for the construction industry with some of the biggest names being exposed as massively gender biased.  It has now been conclusively proven, that with a median difference of 25% construction has the singular most significant gender-based pay disparity out of all industries in Britain.  This is rather daring for the industry and it is now hoped action will be taken to remedy this immediately.   Which Data Was Used?   Companies required to report their figures were those that employ more than 250 people, so the problem could be just as rife in smaller companies who as yet have not been forced to make their information public.  Businesses were forced to report data under four categories:  
  1. The mean and median gender pay gap
  2. The mean and median gender bonus pay gap
  3. Percentage of male and female employees who received bonus payments
  4. Percentage of male and female employees in each quartile of the company pay structure
  The Mean   This is the difference in percentage between an average pay for a male employee in a company and an average wage for a woman employee.  So, if on average men are paid £30,000 and woman paid £27,000 then they pay gap is 10%   The Median   All pay is arranged from highest to lowest split by gender.  The midpoint salary on both lists is then pinpointed, and the difference is the median.  This is the figure of 25% seen in the contraction industry. Before data were legally required the Office for National Statistics had estimated that the pay gap in the construction sector was 14.9%.  The new evidence proves that the problem is significantly worse than first thought and has been a pretty well-kept insider secret.   More Bad News While 25% is a pretty damning figure, this is the median across the industry as a whole.  Because the information is now in the public domain, it has been possible to see companies on an individual basis, and some of the pictures are bleak with some very red-faced heads of companies potentially heading for the hills.  Most companies actually have a more significant pay gap than 25% with one company actually seeing a 40% median difference which really is appalling.   Why Have Things Got So Bad?   When challenged the worst offending companies were not prepared to speak to industry publication ‘Construction News’ about the issue, but other publicly available information shows that female employees in the top quartile of pay account for just 7% in one company, which leads us to assume that they do not have many women in senior roles.  It is fair to say that women are still underrepresented in construction and tend to fill the office based administration roles which are perhaps not as well paid as other more manual roles traditional and almost solely filled by men. Where there are more men than women making up the statistics, it is perhaps inevitable that the statistics are going to be skewed to create a gender pay gap that looks worse that the reality. Women Stay Low in Construction   When looked at by quartile, the overall figures show that many companies do have a 50/50 split when it comes to the lowest pay quartile, and in some cases, women make up more than 60% of staff at this level.  When we climb to the top pay quartile, have already seen that women drop off rapidly, with no significant construction firm having more than 20% at the top.  This begs the question why are women not progressing?  Do women not find the industry appealing or are men being promoted over women on purpose? Of course, there is no way of answering that question quickly.  Previously we have talked about inspiring school-age children to join the construction industry and have stressed the importance of appealing to both male and female candidates but at the end of the day if the industry does not attract women what can be done?   Acknowledgment from the Top   While the worst offending companies were not prepared to discuss the issue with Construction News, one director from a company that showed an individual median pay gap of 29%, (over the national average) was happy to acknowledge that more needed to be done.  He also felt that bringing more women into the industry is going to be the way that the issue gets resolved.  Defending the figures from his business he was keen to push the point that the pay gap is a natural result of such imbalanced employment figures.  He reinforced the view that attracting women into the industry is a tough challenge as there is a percentage of roles that most women do not apply for, typically onsite, manual functions.  Women tend to apply for office-based roles which do no attract high salaries.  Things like apprenticeship programs need to be pushed out to appeal to women, as there also seems to be a higher chance of career progression when starting young.  Many apprenticeship programs offer progression to degree level qualifications which will naturally put the employee in a more upper quartile for pay.   Overall the report and figures now legally required make pretty dismal reading for gender equality in construction.  It will be interesting to see the statistics for April 2019 to see if any of the big construction names have made any progress in closing the gap.  

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Simon Wilkins

Simon Wilkins

The Headhunter

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