Tag Archives: red tape challenge

When the music stops…

shutterstock_20212843The Government has published its response to the TUPE consultation.  They intend to change the TUPE regulations with effect from January 2014.  No draft regulations have yet been published.  This leaves a lot of sales teams and HR teams with a dilemma.

What will the TUPE regulations be when the work we are gaining today comes up for rebid?

There are transfers that were TUPE transfers under the current regulations which will not necessarily be TUPE transfers under the new ones.  The clear intention is to reduce the scope of service provision changes that fall within TUPE.  The new regulations are not yet written, and when they come into force it will take several years to get case law on what they actually mean.

The extended uncertainty period

I always think of this as the extended uncertainty period – a sort of Heisenberg’s law of legal change.  That is nothing new for HR. 

Make a plan for uncertainty

We need a plan that integrates with the rest of the business.

Selling/pitching

Is your sales team going to pitch/cost on the basis that:

  • TUPE does not apply to new incoming service contracts
  • TUPE may apply
  • TUPE will apply

The costs of each of these options are different, and so is the price to the customer (who may want the lowest possible price).  Are you going to be working on the basis of ‘costs plus’ where the customer pays if you have to pay off staff?  Who pays when the music stops?  Can you afford it to be you?

Losing/changing

If you are losing contracts that came in as TUPE contracts, are you going to treat this as:

  • TUPE does not apply (and make appropriate redundancy payments where necessary)
  • TUPE may apply and deal with it on a case by case basis (and schedule the time to decide)
  • TUPE will apply and try to persuade the successor organisation to agree

What are your plans for consulting with employees affected by these (non)TUPE transfers?

We will all be writing learned articles once the regulations are published – but there are live contracts due change service provider during the extended uncertainty period.

There are real people with jobs and mortgages to pay who are going to be asking – what happens to me?

Our job is to provide an answer, which means starting to plan for those changes and the uncertainty period.

Review existing contracts

Knowing how the land lies is always useful if you don’t know which way things are going to move.  It means you are not trying to process a vast amount of data when the final facts become clear.

Service provision

Now is a good time to review your contracts with clients or potential clients.  What do they say about:

  • who pays for what (indemnities and charges)
  • and who does what at that point
  • where the contractual obligations are tied into to specific TUPE regulations, and where they are free standing

What effect do they have?  Do your contracts with clients need changing or updating?

Employment contracts

What do your contracts, policies and agreements say?

  • Do you have a TUPE policy?  Will it need updating?
  • Do you have FAQs, or other TUPE related documents, to review
  • Do your contracts of employment give you the flexibility you need

Freelancers and sub-contractors

Calling someone self-employed, or paying them on invoice, doesn’t mean they are not an employee.  Do the sub contractors and freelancers you use pass the right tests for being in a business themselves?  If not, you could find some of them are really employees and covered by the TUPE regulations (more on that in my next blog).

  • Do you have written agreements with your freelancers and sub contractors?
  • Do they reflect the reality of the arrangement, or are they out of date?
  • Does the reality show that you are controlling them?

With the changes due to come into effect in early January 2014, some HR people are going to have a miserable Christmas sorting out end of year TUPE transfers – let’s hope it won’t be you and you will be fully prepared.

Click here to join our free Conversation on TUPE and the service sector.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050                  Fax: 08452 303060
www.irenicon.co.uk
www.koffeeklatch.co.uk
www.balancingthebump.com
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A tale of two TUPEs

shutterstock_20212843“It’s a far better thing I do now than I have ever done before…”

Today I am going to tell you a story. Listen and pay attention, children, because there will be a test at the end.

Once upon a time a group of people in Europe thought it wasn’t fair that staff got fired when a business was sold. They also thought staff ought to be told in advance what was happening and what it would mean for them.

This resulted in the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE). This was a GOOD THING because lots of people didn’t get sacked. This was a BAD THING because the new boss couldn’t  just cut everybody’s pay.

It can be hard to tell a GOOD THING from a BAD THING, so you are going to have to pay attention.

It turned out that the Dutch have ways of doing business, like renting a business, that don’t really exist in the UK. The Germans had their own way of doing things, and so it went on.

Workers complained to the judges, saying they should keep their jobs when the business hadn’t been sold but their employer had changed. The judges said that even one part time cleaner could keep their job when their employer changed if they were an ‘organised grouping’.

Even the Germans, who are very good at being organised, were surprised. Everyone had to scratch their head about TUPE. This was a GOOD THING because it was fairer that all these business transfers were covered in the same way. This was a BAD THING because it meant it was hard for the boss to come up with a way of getting out of it all.

Bosses in the UK wanted certainty and ‘a level playing field’, although nobody had any as they had already been sold off years ago. The Government made new TUPE Regulations in 2006 which made it clear that the judges had been right.

All sorts of service industries from facilities management to PR were covered by the ‘service provision changes’ (SPC). This was a GOOD THING because people could stay in their old jobs without being sacked or having pay cuts. This was a BAD THING because the new boss couldn’t cut everybody’s pay.

A new Government arrived. They said it would be a GOOD THING for the bosses to be able to fire people more easily or cut their pay. Sacking people would reduce unemployment, and cutting their pay would encourage them to spend more money in the shops. Reducing unemployment and improving the economy are a GOOD THING.

The Government is asking for comments on making TUPE apply to some transfers and not others. This might be a GOOD THING because some bosses would make more money and might be a BAD THING because it would increase uncertainty.

Some service providers will find they are left with liabilities when their contracts end, since the ending of ‘gold plating’ (which was a BAD THING) means they will have to pay off workers they otherwise would have passed on to the new contractors.

This is a ……… THING – well work it out for yourself. Another round of TUPE changes is always a GOOD THING for employment lawyers (who wear wigs and not tupes at all).

Now here comes the test I promised. You need to make up your own mind and respond to the consultation documents by 11 April 2013. This is really important for anyone who is contracting out services, taking them back in house, providing services under a contract on an ongoing basis.

Click here to join the conversation on TUPE and the service sector and join our free teleseminar.

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Red tape and fairness

This is the fifth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at ideas about what is fair

You don’t have to spend more than 30 years in employee relations and employment law to work out that there is more than one idea about what is ’fair’.   When we call upon the government to produce legislation that is ‘fair’, or even ‘fairer’, we are really being a little disingenuous unless we define what we mean.

Historic  fairness?

To a woman trying to get on the board who suspects her gender is an issue, fairness means getting a real shot at an open door.  Business women are divided over the issue of quotas and there is no agreement about whether quotas are fair or not.

Is fairness about remedying historic discrimination, or is it about what is happening now?

Simplicity and clarity?

To the small business owner, fairness means being able to run their business without being burdened by complicated rules.

Is fairness always simple, or can we be simple and unfair?

Consistency?

We all get irritated by reports in the press that show one criminal getting a fine where another for the same offence gets a prison sentence.  To us, consistency is part of fairness.

Some people find it offensive that soldiers injured in the line of duty get lower compensation than a woman who is not promoted because of her gender.

We all have some underlying idea of a scale or tariff, but we don’t necessarily agree about relative worth.

Relevant circumstances?

When we are on the receiving end of any kind of penalty, we do not demand that a strict tariff is blindly applied.  On the contrary, our idea of justice and fairness then includes the idea that our circumstances, even our intentions, must be taken into account.

  • The drunk driver begs not to go to jail for killing a child – “I didn’t mean it, I am sorry”
  •  The negligent manager does not want to take the  blame for injuries at work –  “We didn’t have enough resources, I was working long hours”.
  • We can feel that “I am not the only one to blame” is something that means we should not get any blame at all (as opposed to everyone involved taking their share).

We need to decide what the ‘fairness mix’ is before we start demanding more of it.  

Do you want to go for:

  1.  Standardisation/set tariffs/penalties – where everything is predictable; or
  2.  Appropriate decisions/penalties – which means there is an element of unpredictability and inconsistency

This is a dynamic tension in our entire legal system, not just employment law, between the two ideas of fairness. 

  • should people who are often late for work be treated the same, regardless of reason?
  • should there be special consideration for the disabled, for those who live on a dodgy bus route, or have small children, or
  • should it always be “three strikes and you’re out”?

If you believe in fixed penalties regardless of circumstances, you have a system that is consistent (but not necessarily fair on those who can’t comply).

Which would you rather be on the receiving end of?

We try in the UK to have it both ways.  It is the essence of our society … this compromise, this balance, this wobble … and it is what the media complain about all the time.

Why did that person get six months and that person one?

Why did that employer win a tribunal and that one lose?

What kind of world do we want to live in? 

If we can work out that, we can work out what kind of legal system we need to support it.   But we must be realistic.  Any system of legal rules and processes has some inherent problems, because:

  • people write the laws (with varying degrees of drafting skills!),
  • people try to explain the laws (with very mixed success),
  • people try to comply with the law (and others pay no attention whatsoever) and
  • people try to interpret the law when cases come to tribunal or court.

Sometimes we act like children, complaining when Daddy makes a decision we don’t like.  But we are adults in a society that needs to make adult assessments about what it values, what it penalises, what it sanctions, and how it judges those issues.

The boss who today wants a streamlined tribunal system and no uncertainty may be the drunk driver tomorrow wanting their life and record and all mitigating circumstances taken into account.

The price of “society” is accepting that there is more than one point of view.  It is not such a simple job to make things ‘fairer’ but we could start by acknowledging that there are competing standpoints.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation , click here for the third blog for our discussion on how government guidance notes affect us and click here for our fourth blog  where we look at the opportunity to simplify legislation

See our  previous blog

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk

You can follow Annabel on Twitter

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Filed under discipline and dismissal, employment law, employment tribunal, Red Tape

What I say, or what I mean? Red tape and employment law

This is the fourth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at the opportunity to simplify legislation

Over the last 30 odd years I have seen a number of ‘simplifications’, and not one of them has simplified anything for anyone.   Take a few separate short statutes, and once ‘simplified’ they seem to turn into 100 pages of legislation and 200 pages of ‘guidance’.  Why is this?

It is not because anyone is trying to make it any harder than it is.   It may be because:

a)      European laws are ‘purposive’ – which means they are drafted with an intention to have a particular effect, and national parliaments have to work out how to achieve this – which is more complicated in the UK because …

b)      UK laws are written so that the words we use are what the law is

c)       When the UK courts and tribunals interpret UK implementation of EU laws, this can throw up problems with the UK approach (“what do the words say”) and the EU approach (“what is the legislation trying to achieve”).

There are specialists (Parliamentary draftsmen) who draft the words of laws in the UK.  It is a particular skill, honed in a tradition that stretches back centuries.  These people, when left to do their job, use words as a precise tool.  When it comes to implementing EU legislation they are being asked to frame the detailed wording of laws that are broad brush in their intent. 

When it comes to employment law the EU tends to work on ‘framework’ legislation, leaving it for national parliaments to set out legislation that brings the EU purpose into effect.  In many other EU countries, the national legislation is essentially framework too, and much of the detail is filled in with legally binding management and union agreements at regional, local and sector level.

In the UK we don’t usually have legally binding agreements, so the poor Parliamentary draftsmen end up trying to draft a ‘one size fits all’ set of legislation.  This means that all the variations by sector, size of company, special circumstance have to go into the legislation.  In other legal systems it would go into the appropriate agreements and anyone not covered by it wouldn’t have to read it!

In the UK we have an instinctive feeling that everyone should be treated the same under the law.  So the idea of laws that apply only to employers and employees in a particular sector is very alien to us.  Our ‘gut feel’ that there should be some kind of level playing field results in complications, exceptions, and heartache.

We like the idea of consistency and often feel that is some measure of ‘fairness’ but we don’t like complexity.  Equally we don’t like laws that are not appropriate.

In an employment market that includes global players, national organisations, sector dominant employers, small businesses, and micropreneurs about to take on their first part time employee, it is almost impossible to have one simple, clear approach that suits everyone unless we go back to the EU ‘purposive’ approach.

We could have employment laws that say – “Do what is appropriate and fair give the size of your organisation and its needs, balanced with the effect your decisions will have on the individuals and the degree to which they have brought this on themselves”.

But that, of course, would not satisfy those who want to know in advance that they have done the ‘right thing’.  The law could be simply expressed in a ‘broad brush’ way, but although that would simplify the wording of the law, it would not simplify predicting how the law would apply to a particular situation.

The “red tape” exercise is not going to be able to resolve the core conflict between the two systems applying the UK – that express law in a ‘framework’ way, and in a ‘what do the words say’ way.  So the discussion seems to be taking place around the edges.  But it is not trying to tackle some central issues about whether we could find a consensus of what we meant by ‘fair’ or ‘appropriate’ or ‘relevant’ when it comes to dealing with people in the world of work.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, click here for our discussion on how far we can repeal current legislation and click here for the third blog for our discussion on how government guidance notes affect us.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under employment law, Equality Bill, free stuff

Simplifying the complex – red tape and employment law

Tied up or tied down?

Simplifying the complex – red tape and employment law

In this blog, we look at the dangers of reliance upon simplified guidance published by the Government on new legislation.

People get in a muddle about the effect of explanations and guidance on employment law.

Employers simply do not understand how  they can follow Government guidance and lose in a tribunal.

What’s going on?

Our legal system works on the basis that Parliament makes new law (statutes/Acts of Parliament, and regulations), and the courts and tribunals interpret and apply that law to particular situations.

Some Codes of Practice are ‘statutory codes’ and are taken into account by a court or tribunal hearing a case.  The ACAS Code on discipline and grievance is an example of this.

What about government guidance on how to comply?

In general, the court/tribunal will not apply guidance or explanatory notes on Government websites.

This has the useful effect of preventing our laws from being rewritten by civil servants without the scrutiny of Parliament.

There have been several spectacular incidents of Government guidance being pulped (at a cost of millions) where the explanations have been simply wrong.

Employers have been understandably mystified by how, even though they followed official guidance, they were wrong.

It seems unfair that they are required to comply with laws that no-one in the Government can adequately or accurately explain!

It is not unknown for Government departments to breach  UK employment law (not just the guidance), and it is clear that there is a lot of unnecessary pain and confusion about the status, clarity, relevance and accuracy of guidance notes.

Appeal decisions are the most reliable guidance

Only appeal decisions bind lower courts, so there is an inevitable gap between when Parliament makes new laws and when the appeal courts get to make decisions.   There must be a real case brought about an actual situation and the losing party has to decide to appeal.

So, given the time that cases take to work their way through the system, it can take anything from two years to more than a decade for a particular statutory provision to get the attention of an appeal court and for binding precedent to interpret it.

Fewer appeals mean less guidance

The new system of charging for employment tribunals and employment appeal tribunal claims can only make it take longer for case-law to develop around new laws .

We often have to tell our clients “Nobody knows the answer to this question, but our best guess, given what has gone before is …..”    I have never seen a set of ‘guidance’ that is honest enough to say this.  What would be the reaction if this were published?

Compliance inflation gives certainty  

Employers like certainty and predictability (at least until they want flexibility and choice!).    It’s not easy to live in a world where non-compliance costs time and money, but no-one can say for sure exactly what “compliance” requires. 

This is one reason why we see “best practice inflation” – which is the inaccurate overstatement of what the law requires … ‘just to be on the safe side’. 

It’s not ‘safe’ to load business with excess cost or unnecessary hurdles.

Business is about measured risk taking

Running a business involves risk.  Employment law is just one of many risks in business.  Arguably more businesses are ruined by poor credit giving decisions than by employment law.

There is no real certainty about anything, and we have to hone our decision making and risk assessment skills and bring them to bear on employment law as we do to everything else.

For our earlier blogs in the ‘red tape’ series, click here for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060
Website : www.irenicon.co.uk
You can follow Annabel on Twitter

 

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Filed under employment law, employment tribunal

Bonfire of the delusion – do we have the power to repeal employment law?

Delusions about employment law

The government has announced more consultation on employment law, this time on TUPE and collective redundancies.  Both sets of legislation derive from EU directives.

In our last blog, we looked at whether we are in fact over-regulated and over-legislated.

a)            Assumption: in the UK we retain the power to repeal legislation

The thing most politicians don’t seem to grasp is the very limited extent of manoeuvre we have, even where we want to repeal legislation.  A significant amount of UK legislation relating to employment is the implementation of EU Directives.  Short of leaving the EU (which is another discussion) we do not have the power to say “let’s not have any legislation about this”.

We can take out any additional burdens imposed at UK level but we can’t abandon the whole thing.  If we want to live in an unregulated employment environment, we need to leave the EU.  Otherwise, we need to learn to live with a regulated environment.

We can lobby at EU level for changes to laws, even the abolition of laws, but in a large group of countries, our view will not automatically be adopted (even if we have one national view to present).

The only way forward for an individual employer is to live with things as they are and make the best of that.   Lobbying may work in the longer term, but we need to stop deluding ourselves that all this ‘law’ is going to disappear by magic of governmental pen.

I talk to clients quite regularly who say – “this shouldn’t exist”, “this shouldn’t be happening to me”.  A successful business strategy has to be founded on how things are, not on how you think things ought to be.

Employment law is no different to all the other elements that are needed to make a successful business.  Whilst unfettered freedom can seem like a good idea, it is unlikely we will arrive at an unregulated climate for business, and we all have to live and trade within certain legal limits.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

6 Comments

Filed under employment law, Equality Bill

Bonfire of the Red Tape Vanities

Are we over regulated and if so, what can we do about it?

There is a lot of ‘media’ and ‘political’ debate about it – but it is all based on the same assumptions that we:

  • are over-regulated and over-legislated
  • retain the power to repeal legislation
  • can simplify legislation that we can’t repeal

Over the next few blogs, we shall be exploring some of the issues.

Are we are over-regulated and over-legislated?

I might want the right to dismiss anyone I want to but do I want my friends and family sacked for no reason?

I might want the freedom to say whatever I want to anyone anywhere I go,  but do I want be abused at work? .

If we start with what rights do we feel we really need to have (as a safety net for ourselves, our children and our loved ones), we don’t always end up in the same place as the people on whom the obligation to respect those rights is imposed.  What if we  look at it from the perspective of an employer?

I have the privilege of being a business owner, self-employed, a boss, a mother of sons who work for other people, and an employment law and HR specialist who hears a lot about what goes wrong in the workplace.

The whole debate about legislation is like trying to fix a difficult marriage by changing the divorce laws.

Would you give up protection from domestic violence to simplifying UK law?

In the workplace there are many problems that people need some way of addressing, and some remedy for.

We work with wonderful organisations who really do try to bring their vision into the world and take their staff along with them, but we still regularly come across people who are abused and damaged at work..

Should animals be better protected than people?

If I were an animal, I would have regulations about:

  • transportation  - you can’t transport sheep in the same conditions many commuters endure
  • food and drink and rest breaks – work an animal to death or fail to let it eat and drink and the RSPCA will be on to you.  Working Time regulation for humans is another thing? 
  • dangerous conditions that injur an animal or cause it stress? – again the RSPCA will be on to you – but Health and Safety (and stress prevention) for humans is red tape?

People baiting?

Years ago our ancestors thought it was OK to organise bear baiting, badger baiting, cock fights and more.  Most people in the UK today would think this was not OK and we have laws against it.

Should I not have the same rights at work as an animal?

Do we want to live in a world where employment is:

  1. Regulated?
  2. Unregulated?

..to be continued……

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060
Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

4 Comments

Filed under employment law