Category Archives: contract

Bad weather stopped play? Who gets paid when they can’t get to work?

See on Scoop.itEmployment law in a mad world

Annabel Kaye‘s insight:

While businesses are mopping up and waiting for power to be restored – who gets paid?

See on us7.campaign-archive2.com

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Beyond HR compliance – giving yourself the space to grow – YouTube

See on Scoop.itEmployment law in a mad world

Talking to members of the Professional Development Bureau about how we should not let compliance rule our relationships with the people we pay and why the bo…

Annabel Kaye‘s insight:

There’s a lot more to employing people than mere compliance!

See on www.youtube.com

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Which Are The Right Contract Options?

See on Scoop.itEmployment law in a mad world

Which Are The Right Contract Options? – Facilitated by Annabel Kaye, Director of Irenicon Ltd, Annabel keeps it clear, demystifies the jargon and keeps the focus on getting the best business res…

Annabel Kaye‘s insight:

Should be using zero hours contracts, freelancers, part timers, What kind of contract works best for you?  Join our free conversation (by phone) on 23 January 2pm (UK time) register for dial in details.

See on koffeeklatch.co.uk

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Filed under contract, Freelance Workers, zero hours

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
You can follow Annabel on Twitter

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Filed under contract, employment law, TUPE

Using freelancers?

Using freelancers is not risk free

Using freelancers is not risk free

Are people working for you and submitting invoices (rather than being paid under PAYE)?

Getting people to invoice you, or giving them contracts that say they are self employed, does not mean they are.

HMRC and employment tribunals look at how the relationship is set up and managed – not just at the label you put on it.

Get the label wrong and you can be in for a nasty surprise.

  • HMRC can come to you and ask for the PAYE you should have been deducting (with penalties too).
  • Employment tribunals can decide you unfairly dismissed someone you didn’t even know you were employing!
Freelancers can be an appropriate part of your business model but they are not a ‘get out of jail free card’ when it comes to employment rights either.
We think of the people we pay as either employees or self employed.   But in the world of HMRC and Employment Tribunals there are three types:
  • Employees
  • Workers
  • Businesses

Some of the freelancers you pay will genuinely be categorised as businesses,  but not all.    The others will be workers, with a whole set of ‘employment’ rights to go with them.

If you are paying people by invoice you need to know how this really works so that you can make sure you don’t get any unexpected bills from the Revenue (or an Employment Tribunal) in a few years time.

Don’t think this doesn’t happen, it happens all the time.   Just as you start to get through those critical first few years and make a profit, you get a PAYE inspection and a bill for back tax.  You can’t go back and charge all those clients more (as your labour costs were too low) and that’s your expansion capital, that longed for holiday, gone.  Or worse, that’s the business gone!

For more information on which rights freelance workers have  (and which rights you don’t) click here.  Join us for a free KoffeeKlatch conversation on Managing Freelance Workers.

Explore how to predict what label will be applied and how to contract freelancers in an appropriate way – 10th October (2pm for an hour).  For more information click here.

Tweet out if you are joining us #KKfreelance.

To purchase a copy of our extensive guidance notes and freelance contracts click here.

To receive a fortnightly update when new dates are posted for all our free KoffeeKlatch conversations click here.

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Filed under contract, employment law, Freelance Workers

Is your zero hours contract really a zero thought contract?

Vote in our poll – do you use zero hours’ contracts?

Today’s myth buster is around the idea that people on zero hours contracts have no rights. Nothing could be further from the truth.

  1. Zero hours contracts mean no commitment.  Employment tribunals look at the real relationship and arrangements – not just the paperwork. If you regularly book someone you may find your contract is no longer zero hours. The employment appeal tribunal have already ruled on this (Pulse v Carwatch)
  2. No holiday pay? Despite the headline news you don’t have to be an employee to qualify for holiday pay – even self employed workers qualify for holiday pay if they are obliged to do the work in person. The employment appeal tribunal have already ruled on this (Lyons v Mitie Security Ltd)
  3. Zero holiday pay? You don’t calculate zero hours workers’ holiday on the basis of nil hours per week, but on by averaging the previous 12 worked week’s pay.
  4. Zero rights? All workers in the UK have some rights including equality/discrimination and health and safety rights. The number of hours you work doesn’t change that.

If we could abolish all of employment law today there would still be real reasons for employers to consider whether zero hours contracts are appropriate to the organisation.

  1. Continuous service provision is hard to handle against random and casual workers if they are the core of your workforce – they can all say no to working today!
  2. Workers who have no normal hours can’t save or spend much and this is bad for the economy in general (they can’t get credit!)
  3. Annual hours contracts are more appropriate if you need flexibility
  4. Term time only contracts can work where parents can take the school holidays off

For the growing small business there is a place for zero hours contracts – as a temporary way of employing people where you don’t know what the work is needed. For a large business this is a temporary a way of handling rapid expansion.

But to ask people to be available to you as and when, without paying them, and expecting them to provide great service to your customers is not going to work for a number of businesses – regardless of the law.

Many bosses will find themselves on the wrong end of holiday pay claims, and unfair dismissal claims that the zero hours contracts won’t avoid. Unless you really know what you are doing zero hours is a trap!

Deciding on the appropriate contractual framework for employing people in a growing business is a skill. Get it right and you have got your costings right and all the flexibility you need. Get it wrong and you end up owing things like holiday pay you didn’t budget for – and you can have a less committed workforce than the one you want.

We speak to businesses about how to decide on the appropriate structures to get what you want (and we write great contracts too).  Talk to us call 08452 303050 (local rate calls) or use our contact form..

Related articles:

1m workers on zero hours contracts

Cable to investigate?

One way street?

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Filed under contract, employment law, flexible working, zero hours

No sex in the cupboard

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@sastimos

I once worked for an advertising agency who were well known for their parties.

Over indulgence of very kind ruled and occasionally some unfortunate incidents resulted.  Before ‘compliance’ changed office parties the spirit of the age was entirely different to today.  Many people have a happy lack of memory of those times.

At a particularly enthusiastic party, a bright young account executive was caught in a coat cupboard with the wife of the MD of a very large account (people were not people to the Madmen – they were accounts).   Red faces ensued and an upset ‘Account’ removed a large amount of revenue.  Smart phones did not exist – so no photos were circulated of the entangled pair.

Next day our MD came to me and asked me to amend the company handbook so that it included a rule forbidding staff to have sex in coat cupboards with clients wives.  It took me some while to persuade him that this rule was too narrowly drawn – since it permitted sex in other locations, with other people who arrived with clients, and would give a rather odd impression to new recruits.

Since then I have reviewed countless contracts and staff handbooks and they often contain the strangest rules forbidding things that most of us would not think of doing at work.  Some of the strangest include “Do not set fire to your bible in the toilet”  and  “All emails must be copied to the MD”.

Policies and handbooks get longer as more things are forbidden.   Following some would even prevent work of any kind being done.  I once worked for a retail organisation who forbad staff to remain on the premises unaccompanied.  This worked fine when they owned only large stores but ran into a wall when they bought a chain of small stores, since having one member of staff off sick meant the store had to be closed to comply with the rule!.

This is typical ‘black hat’ thinking It’s no wonder that more than 60% of Which? readers said they had never read their contract.

“I never read mine I just threw it in a drawer”

“You only read them when things go wrong”.

Many new clients tell us they have issued contracts they don’t understand (or even don’t agree with) as they felt they had no control over what their contract said.

If all this sounds like a colossal waste of time and trees to you – you are right.

I heard a colleague talking to a client recently about drafting documents that documented success and not failure.  It set me thinking about how we are under using a fabulous tool in the employment relationship.

I recently attended a meeting of the Professional Speaking Association (PSA)  in London  and heard a wonderful talk by Richard Tyler Lake.  He talked about being a possibility architect.  The phrase really struck home with me.

What if we could make the ‘compliance’ side of contracts part of the structure for creating possibilities at work – instead of part of the structure of banning things?

We could have:

  • tent poles and tents for the organisations constantly on the go to wrap their canvas over when they need to hunker down.
  • prefabricated and customisable modern structures for people who are on a budget
  • individually designed open spaces with great views and flow for those who want to build change into the heart of their organisation

With that inspiring through in mind and a whole load of new tent poles and prefabs to make (and a few unique masterpieces to  finalise) I am dancing my way towards a new generation of paperwork that is not just a waste of perfectly good trees or something to prop the office door open with.

For tentpoles and canvas for freelancers click here

For prefabs and modern structures for employees click here

For individual designs or a free evaluation of your existing contract talk to us on 08452 303050

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Filed under contract, Freelance Workers