Employment law perspectives on talent management

Imagine a show whereby contestants of any age, possessing some sort of talent, audition and have their performance judged by a panel of judges. The winning contestant goes on to reap the monetary rewards, gain additional skills and refine their talent. Minus the lights, camera, action, it sounds like an employment relationship — but what is “talent” and “talent management” in a workplace context? Sandra Masterson Power, partner and Head of Employment and Benefits at Beauchamps, asks.

Despite the abundance of literature since the terms were first introduced in the late 1990s, it is difficult to find consensus on one agreed definition. The original thrust of talent and talent management was towards identifying key roles and developing a supply chain to fill those roles. Focussing on a select group may make sense from a succession planning and business strategy perspective but surely it needs to be balanced with engaging and retaining the worker bees who don’t make it to the “talent” category.

CIPD developed a working definition for “talent” and “talent management”:

• “Talent consists of those individuals who can make a difference to organisational performance either through their immediate contribution, or in the longer-term, by demonstrating the highest levels of potential.”
• “Talent management is the systematic attraction, identification, development, engagement, retention and deployment of those individuals who are of particular value to an organisation, either in view of their “high potential” for the future or because they are fulfilling business/operation-critical roles.”

Latterly, there is a shift towards a more inclusive definition of talent and talent management; a positive development – certainly from a legal perspective. 

Duty of mutual trust and confidence

The Courts have long recognised the duty of mutual trust and confidence between employers and employees; arguably that trust and confidence can be threatened if the “non-talented” employees are treated and categorised differently from the “talent”. The propagation of a “them and us” culture inevitably leads to disengagement, divisions and unrest. Workplace conflict brings more employee grievances, complaints and interpersonal issues. This inevitably leads to an erosion of the mutual trust and confidence that is a fundamental implied term in the contract of employment. When a relationship has deteriorated to that point, the outcome for both parties is not appealing. It will certainly involve a parting of the ways and more likely will involve litigation.

HiPo or Hippo

Does your organisation consider talent to be the small group of high potentials or “HiPos” that will give a fantastic return on investment? Or does it recognise the untapped potential of the majority who are committed, loyal and dependable employees and who, like the Hippo, prefer to move easily through the water without knowing how to swim? Organisations should seek to understand and define what talent and talent management is to them and consider how its talent management strategy fits in with its overall business risk strategy.

Duty of Care

A word of caution. Employers have a duty of care to protect the health, safety and wellbeing of all employees. Providing adequate training and feedback on performance is one way of fulfilling a duty of care. Does your organisation apply a consistent approach to training and to feedback? Are there employees moving easily through your organisation, desperate to learn how to “swim” but not getting the opportunity to learn? Do your employees have equality of opportunity?

Equality of Opportunity

Equality of opportunity is about making sure that every employee has an equal chance to take up and maximise opportunities and to fulfil their potential.  Regardless of the category they fall into, every employee should enjoy an equal chance to upskill or learn something new at work. Much work has been done. The Employment Equality Acts 1998–2015 prohibits discrimination on nine grounds in relation to, for example, equal pay and vocational training and work experience. However, women still earn less than men and part-time, temporary and shift workers may not have access to training or opportunities to progress. One of the stated objectives of Ireland’s National Skills Strategy 2025 is that “employers will participate actively in the development of skills and make effective use of skills in their organisations to improve productivity and competitiveness”. Apart from legal considerations around discrimination, there is a strong business case to ensure that all employees have the opportunity to fulfil their potential.

Equality v Diversity and Inclusion

If organisations only see the talent of a few and not the potential of many, they may find it difficult to reconcile their Talent Management Strategy with their Diversity and Inclusion strategy.

Equality is about ensuring everybody has an equal opportunity and is not treated differently or discriminated against because of their characteristics. Diversity is about taking account of the differences between people and placing a positive value on those differences — going beyond what the law requires to ensure that every employee is valued and supported as an individual. The issues that make diversity and inclusion effective are the same issues that make for a strong talent management process and recent trends suggest that organisations are adopting a far more inclusive approach to talent management.

It’s only words

So, if there is a revision taking place, it is timely to consider the terminology and language that is being adopted. 

Talent in Greece and Ancient Rome was a unit of currency. Simon Cowell might consider it to be the natural aptitude or skill of the many hopefuls that appear before him. The Cambridge Dictionary and the Oxford Dictionary have interesting definitions of the use of the word talent in judging attractiveness.

The word “talent” in a HR and employment context appears to be used as a collective noun to describe employees. Employee is generally defined in Irish employment legislation as “a person who has entered into or works under a contract of employment”. Do you employ “talent”, or do you employ talented employees? Do you manage “talent”, or do you nurture and develop the talent and skills that your employees possess? In the developing gig economy does your talent include contingent workers? Independent contractors?

What does your organisation mean when it speaks of talent and talent management? Clarity is important.

Sandra Masterson Power is a partner and Head of Employment and Benefits at Beauchamps. She holds a MA in Mediation, UCD (2006) and a MSc Human Resource Management, UCD Smurfit (2014). Her legal, business, HR and mediation background provides her with a unique perspective as an employment lawyer when providing legal advice and business risk support to key clients, managers, directors, CEOs and Board members within the private sector and public sector.

T: +353 (0)1 418 0600
E: s.mastersonpower@beauchamps.ie
W: www.beauchamps.ie