Hawks, Doves and Owls – HR, the law, and the psychological contract

While we’re in our respective workplaces, we know that we are there to serve. Our workplace is the hand that feeds us, and the bigger and stronger the hand, the more food it can carry. If that self-obvious truth were not enough, we (mostly) have legal contracts to remind us of our responsibilities and obligations. Employers, of course, must work within prevailing employment law, and their HR functions are there – amongst other reasons – to ensure that they are compliant. Which is why the recent European Court of Justice ruling on the Perada case is ruffling quite a few feathers in HR departments across Europe. (HRZone provides a useful online summary of the case online for those that have missed it.) But one commentator on the case prompted me to think beyond merely legal contracts, and to ponder the relationships that HR functions have with other areas of their organisations.

The post that got me thinking was also on HRZone, and was written by Alison Norris, an HR expert with a firm of Employment Law Specialists & Health and Safety Advisors. One function of HR is of course to protect the interests of the company that employs – which is only to repeat the truisms of our opening paragraph. In that respect, it’s good to see her identifying potential for abuse, the possibility of legal grey areas or of ambiguity of interpretation, and the risks a company might face as a result. But that wasn’t what set me thinking (or ‘responding internally’, to perhaps be more accurate).

What caught my eye more about this article than the many others of the Perada case – which contradicts aspects of the Working Time Regulations 1998, as a result of which its real legal implications may not be clear until such time as these are modified – was the language used, and its tone. Following a broad bird-watching metaphor, employers were divided into three categories – lesser-spotted high trust, common or garden commercially aligned, and speckled high risk.

The first are politely but slightly sarcastically dismissed as unduly altruistic. All may be ‘happy in the nest’, but the image of an idealistically, happy-clappy nest lurks in the background.

The third enjoy the risks of business, and see legal changes as an opportunity to weigh up the odds of “the cost of amending rules and procedures to fall in line with the letter of the law, versus the risk of a Tribunal claim that might seriously clip our wings”. The suggestion is a non-commital note added to the holiday rules so employers can address each case individually. (“The game plan”, we are informed, “of a great tit, not a legal eagle.”)

The second group are identified as the less altruistically aligned majority. At which point, the section that really got me responding appears:

We believe that the psychological contract between employer and employee is a very fragile thing. We have learnt through cruel experience that if one gives in too easily to employees, their expectations inflate and an imbalance ensues.

If an employee falls ill as holidays approach and asks to change their dates, we consider the operational requirements of our organisation and agree only if it suits; and when an employee texts from Mauritius with news of his or her gastroenteritis, we sympathise. Maybe. But that’s all. It’s about the survival of the fittest; the pecking order.”

Like its legal counterpart, a psychological contract – albeit unwritten – needs two parties. It is also inherently fluid and ambiguous; the writer acknowledges that employees will have expectations, and – as Maslow’s work suggests – these may inflate where they are met. But most analyses of the psychological contract describe a situation where employers meet expectations in order to motivate employees’ “discretionary behaviour” (making constructive suggestions, behaviour that enables self and others, working longer hours when it’s needed – generally ‘going the extra mile’). It’s about two sides of a bargain that goes beyond a statement of Ts&Cs that the employee has no say in framing, and which are partially governed by national and supra-national legal frameworks.

Now that jobs for life have gone the way of dodos, employees’ expectations and motivating factors are more likely to be things like a sense of fairness, feeling trusted, being able to voice their thoughts or suggestions, and an open culture: basing the ‘bargain’ simply on pay and perks is to misunderstand it and work on a partially outdated model. Employees nowadays increasingly looking for trust, respect, appreciation, recognition for good ideas and contributions, and a pleasant and supportive working environment.

At which point, a few things occurred to me. I was glad I wasn’t an employee of the writer – basically, the message I would have received was that I was untrustworthy, and had an inappropriate grasp of my place in ‘the pecking order’. There was also an implication that, as I don’t work in the HR function, I was liable to down tools at the first sniffle or cough. Rather like a LemSip ad a few years ago that annoyed quite a few people – not least GPs, annoyed at the implication that we should all struggle into work dosed up to the eyeballs, even if we were infectious and therefore actually likely to cause more illness to more people – I got the impressions that if I had struggled in even when my GP advised otherwise, my ‘dedication’ might not have been recognised. And if I finally fell off my perch, to continue the bird theme, I’d have been accused of faking it.

If an employee develops a history of ‘throwing a sickie’, it may or may not be a health issue – although that should be the first thing that’s investigated. Where the underlying issue is actually attitude and motivation, there should be line management processes in place to either address the issues or, where they’re clearly intractable, terminate the employment. The issue is their potential value, and what may be required by way of intervention to get them to deliver it. But if a number of people are doing the same, then maybe – just maybe – whatever it is they can’t face (and therefore opt to feign illness) may need looking at.

Maybe I’m just over-reacting to an article that was intended to be at least partially humorous. But the problem is … I didn’t laugh. Beyond that implication – never quite explicit – that compliance should be avoided if at all possible (a sentiment that seems to apply differently, depending which area of an organisation you’re reviewing in this instance), the message was all pretty negative. Legal changes are a hassle for everyone, and we all appreciate that, but the tone of a message can colour its content.

My company – or the company that wanted me to feel sufficiently engaged with it that I thought of it that way – inherently didn’t trust me: moreover, I was something it needed to be protected from, at all costs – including legal ones. I was seen, not as something to be developed or nurtured – an asset – but as something whose actions, even if I hadn’t taken them yet, were to be prevented. At best, I was a minor liability. I tried thinking about the psychological contract again, but it was too late – all I wanted was my duvet. Just thinking about work was giving me man flu.

If bird-watching is to be the theme, what would we see when we turn the binoculars back on HR? From my lowly perspective, I was looking for encouraging signs, messages that would make me feel engaged. But what creature might they come from. Probably not doves, symbolising peace and harmony – although even doves have claws and sharp little beaks. Even an olive branch can leave a nasty mark. Possibly hawks, red in tooth and claw and all that? Traditionally the aggressive bird of the ‘attack first’ principle – the warmonger.

But if the preferred prey of the organisation’s body politic is not to be it’s own flesh, something less indiscriminately virulent might make a better option. Something wiser, with an ability to see from more than one angle. Like a wise old owl, perhaps?