I’m the head of a department and one employee, whose contract states 9-5pm as their agreed hours of work, seems to have gradually adopted a year-round flexi-time arrangement.
We tried to show some flexibility in the interest of remaining a preferred employer. This employee also runs their own business, often taking several calls each day while at work. They are often late, and I rarely know what time they will arrive. The rest of the department is having to pick up the slack.
How can we raise the issue that the agreed working hours in their contract is what is expected rather than the current arrangement and does custom and practice an issue?
To answer this query, we sought the expertise of those working in human resources.
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The reader’s query is a perfect example of something being left unsaid for too long, says Damien McCarthy, founder and chief executive of consultancy firm, HR Buddy.
It appears as though the employee has taken it upon themselves to “flex things up” over time, which may be a sign of too much leeway on the employer’s part, he says.
Ongoing communication on clear work terms is key, he says, explaining that the first instance of “flexing things up” was the correct time to address the issue.
However, “one of the most common problems in the workplace is that managers or employers are afraid to address issues with their people,” he says, especially strong employees they do not wish to lose.
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In a nutshell, McCarthy explained that employees have more to bargain with while employers do not wish to “rattle the cage”.
This can be due to a general power imbalance, as a result of the labour market being stretched, resulting in an employee’s market, he says.
“An awful lot of employers have labour shortages and if they were to lose good people, they possibly might not be able to replace them, they’re too valuable to their business,” he says which has resulted in situations referenced by the reader.
For someone to prove custom and practice, it must be a longstanding arrangement over a considerable period.
However, as the hours outlined in the contract are express terms of the employment, “they carry the most weight”, he says, something that should “give solace” to the employer.
Though “I can’t guarantee that the adjudicator will form the same opinion”, he says, should the issue go further.
Noting that the employer wishes to retain this particular employee, McCarthy advises explaining the impact of their work practices on other employees in a way that is “fair”, “frank” and “mature”.
“The employer still has time to perhaps reign that in,” he says.
If such an issue was brought to court, the employer probably would not get a sympathetic hearing, says independent HR consultant and workplace investigator, Michelle Halloran, of Halloran HR Resolutions.
“Custom and practice is a factor and this employer shouldn’t have allowed this practice to develop.
“You need to set expectations early and be consistent in maintaining expected standards of behaviour among employees, or else you run the risk of a lax culture developing and becoming the norm,” she says.
Halloran says a “lax culture” is difficult to reverse and hard to argue in court if an employer’s written policies such as the working hours outlined in the query are not implemented in practice.
That being said, if the employee is “moonlighting” on their employer’s time, “that is a different issue and the employer would have a case there”, she explains.
Halloran advises any employer in a similar situation to address issues surrounding timekeeping and “double jobbing” immediately.
This can be done appropriately by presenting concrete examples such as dates and times to the employee, informing them that it must stop with immediate effect.
If it doesn’t, one option for the employer is disciplinary action, she says.
If you have a work-related questions you’d like to ask our team of experts, from how to deal with difficult colleagues and big workloads to career progression, you can submit your question in the form below.
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