Category Archives: employment law

Who is to blame? Shoesmith an exception?

shutterstock_81310291The tax payer is about to pick up a mighty bill as the sorry saga of Sharon Shoesmith has ground its way through the courts.

Sharon Shoesmith’s story is just an extreme version of what goes on every day.

To summarise:

  • Under resourced/overstretched team
  • Impossible goals
  • Something goes wrong
  • Something must be done
  • Someone must go
  • Unfair Dismissal

This endless cycle (in small and large organisations) creates an outcry that unfair dismissal should be  abolished or eliminated  – another Something Must be Done.   Shortening the cycle by removing one step is an attractive option but it does not really deal with the fundamental problem.    So often we see organisations remove an individual for underperformance without making any changes to how the business/department is organised, managed, resourced, or run.

Guess what?

A few months or years later we are having the same conversation again about a new person!  ‘Lessons have been learned’ often translated into ‘heads have rolled’ and that’s the end of that.  The real cost to individuals, businesses and in this case the tax payer is very high.

Recruitment errors are not the same as supervision errors

We all recognise that sometime the wrong person is recruited and the only way to solve the problem is to get another person.   But there are some fabulous opportunities to improve our own managerial processes and to learn from when things go wrong.  One of the things we might decide to learn is that sometimes our goals are over ambitious in terms of our resources and we have to be realistic about what real people can achieve.

Frustration isn’t a plan

Reaching for excellence is a fabulous thing, but if you are frustrated by your team’s inability to reach it, then frustration can set in.   So many of us just repeat what we did before (saying it LOUDER) and are surprised that we get the same results (only LOUDER). Then we snap and we want to get rid of the person we feel is to blame.

It’s human.  It’s understandable.   It doesn’t really get anyone to where they want to be.  And it will trigger unfair dismissals.

There is a better way

It is possible to improve performance, but it takes time and thought and effort by the Boss.  Sometimes we are so overwhelmed by struggling with what is going wrong that we can’t even imagine finding the time and energy to create a better way to work.   The whole problem can seem too big to tackle.  The Boss ends up working till 3am to meet deadlines or redo sub standard work .

We see it all the time.  With a bit of support, a bit of clarity and the right arrangements between boss and staff we can all avoid a mini-Shoesmith.

We just need to have the conversations and do the thinking.  Employment law is just one of many reasons why you might not want to sack the person who seems to be to blame without going through any real process.  There are better  (and cheaper) ways to end your frustration than spending a large amount of your (or tax payer’s) money on unfair dismissal awards and legal fees.

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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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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?

Image

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

Grant Shapps: Firms need to be ‘disingenuous’ about why people are sacked – Telegraph

See on Scoop.itEmployment law in a mad world

Grant Shapps has admitted that businesses have to come up with “disingenuous” reasons about why they sack people.

Annabel Kaye‘s insight:

It never has been and is not true that good bosses need to lie or be disingenuous and make people redundant instead of telling them the real reasons.

The constant lying in the media about what employment law is and what is requires is demotivating managers and bosses from doing their job properly and leading to the ‘demand’ for the repeal of laws that don’t really exist..

See on www.telegraph.co.uk

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The Freelance culture-putting up with a lot

shutterstock_29072275The recent report on the BBC – the Respect at Work review says freelancers are “excluded from various HR policies”.

We have been helping organisations manage their freelancers, and we know that many HR structures leave non-employees outside the normal remedies for bullying and harassment.

The law doesn’t.  The Equality Act applies to workers, not just employees – so drafting policies that apply only to employees leaves a big gap in your compliance system.

Freelance workers are the backbone of many creative organisations, and it is vital that they are properly contracted and managed.    The BBC is not alone in having more freelancers than employees.  But regardless of numbers, we all need to set up freelance structures in an appropriate way.

There are various individuals campaigning about bullying and harassment in the Arts.  The combination of short term funding, fragile tenure, and a ‘who knows who culture’ is fertile hunting ground for egotistical individuals to exploit young and attractive newcomers.  Temperamental management and tantrums are put down to ‘artistic temperament’, and this sets an example for junior supervisors.

It is chilling to see the report reveal criticism of HR on the grounds they are  “feeding the culture of fear about reporting” – (if true)  But it’s peculiar to see HR criticised by staff as ‘working for the management’ since HR is part of management!  Part of HR’s job would normally be to set up appropriate structures and arrangements for freelance workers and try to protect them from sexual harassment.    HR is not the employees’ voice on the board, nor their representative.

HR needs to make it plain that they are working for the management ― and to make sure they are doing so effectively.

The suggestion that some people accused of sexual harassmentwere protected and promoted is one we have come across in our own work.  Sometimes it is because the allegation (rightly or wrongly) is not believed, and there is no reason not to promote that individual.    We have also seen organisations who feel deeply in the power of their high producers – the million dollar salesperson, or the star.  Even though the organisation may know what is going on, it may feel too difficult to take the financial consequences of removing the individual.

HR should be working for the management and doing their job – creatingcontractual arrangements and structures that mean their organisation is not dependent on individuals in a disproportionate way (succession and contingency planning).

In many organisations HR is already doing this vital work, but in others HR is simply ‘not fit for purpose’ and is relying on a narrow interpretation of ‘best practice’ as a substitute for tackling the real issues in an organisation.

Many organisations are ‘mini-BBCs’ ― and it is truly troubling that some HR people made redundant from these outfits are taking this mindset into a new client base and promoting these policies and ways of working as normal or appropriate for growing entrepreneurial businesses to adopt.

We are working hard to improve the standards for freelance workers ― because that has positive spin-offs across the whole organisation.  We run regular free teleseminars on how to manage freelance workers.  Join the conversation and let’s hear your voice.

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 bullying at work, employment law, Freelance Workers

TwitterLaw

Delete after reading?Twitter and social media started out being seen as a  ‘no laws ‘place where anything can happen.

Actually, that never was true, and if you are still thinking that is how it works you are working from the wrong understanding.

Twitter is a fabulous place to promote your business or express yourself.  Like any other place (real or cyber) there are laws that can tangle you up (or protect you). Lately we have seen Lord McAlpine sue Sally Bercow for libel (or should that be Twibel?) – here’s the judgement.

Celebrities can get into trouble for promoting brands without declaring they are being paid to do so , never mind the HMW Twitter redundancy stream.

Here are some key things any tweeter ought to know:

  1. The law of libel and slander applies on Twitter.  You are ‘publishing’ something for everyone to read.  Do not tweet or retweet anything negative about a person unless you can prove it is true.  The fact everyone else is doing it does not get you off the hook.   Is it  good for your business to  complain a lot on Twitter anyway – even if it is fair comment – we all unfollow people who do nothing but complain – it doesn’t make for interesting tweets.  Criminal law applies in the twitter world too, so if you make threats of violence you may find the police knocking on your door.
  2.  You will see Twitter accounts set up with profiles that say “views are my own…” these are accounts trying to make it clear that the tweeter is just talking for themselves, not for their organisations.  This is because employers can be liable for what their employees tweet in the organisation’s name – even if they didn’t know it was being tweeted!
  3.  If you are receiving money or benefits for promoting a brand  or mentioning it, then you need to make this clear.  If this is the purpose of your Twitter account you might set up the profile to say –“ sponsored  by xxxx to tweet about”….If it is just one tweet then” sponsored by xxx”  must be included.  Paid content is advertising however you look at it and is covered by the ASA code.  Re-Tweeting other people’s ads is fine as long as you are not getting paid/benefits in which case the same rules apply.
  4.  Copyright.  While anything put up as a tweet is an invitation to retweet it (and your Twitter contract says it will be and there is no grounds for complaint if it is) you need to be careful about what your own original tweets contain.    Most newspapers have share buttons that include Twitter and simply tweeting an article you found online using the site providers share is not going to cause problems (the terms of service on the sites usually permit this)  but if you are compiling the copy and reselling it via Twitter or some other form that is different.  There is a real different between a tweet out of what you saw in your morning newspaper, and paid content based on that being tweeted out so you can sell it.   There are lots of myths about copyright.   Make sure you are not working on a misunderstanding.
  5. Trademark.   If you are tweeting as a brand, you need to make sure it is not someone else’s brand before you starting building a following and talking to the world.  You can do a free search to see if the trademark is already registered (google it too).
  6. Cyberbullying, harassment and trolls.  You can block (and report) any user who sends you any tweet you don’t care to read.  You do not have to suffer abuse or insult on your Twitter account.  Twitter have a great page on what to do.   If you put up any material that is against the law, it is possible to get a court order and find out your account details.  The police can deal with harassment when it comes within the law so all the really nasty things that would get you into trouble in real life can have the same effect on Twitter.
  7. You agreed a contract with Twitter when you set up your account.  You can read it here   It is one of the clearest of all the social media providers.   Some key things to be aware of:
    • If you don’t abide by the rules they can shut your account
    • They won’t pay you any compensation
    • You are liable for any breaches of copyright, libel  etc
  8. If you have staff or sub contractors or external agencies tweeting for your brand then they can do as much harm as good.  In theory a professional should know what they are doing but then again recently an experienced IT specialist representing her brand at a conference put more than a foot wrong   If that is your employee tweeting your account you may be liable for what they do.
  9. Some professions need to back up their tweets since their regulator requires it.  If you are an IFA, solicitor or professional giving advice make sure you are familiar with your own professional rules before you start.   It is not difficult to comply with the rules but it is important that you do so.
  10. Make sure you have up to date passwords for all your Twitter accounts and that you can change then rapidly if something goes wrong.  If you are doing everything you can to put things right you will be in a stronger legal position than if you let someone use your account for weeks to hack it, libel people or breach other people’s copyright.

These are not things that should stop you being on Twitter or using it to promote your brand – any more than you should refuse to advertise your brand because advertising is regulated by the ASA.  They are things you need to think about, get to understand and take care of.

We do short courses on social media and the law  We also have a great social media policy that you can work through and issue to staff and anyone who is tweeting for you.   The combination of understanding and setting rules will really help to keep you safe and productive in the cyberworld.

For more information on our training or social media policy or resources around social media and legal issues check out our bitly bundle.  We update it as we work so it grows over time.

Annabel Kaye is a Director of Irenicon – specialist employment law and HR consultancy she founded in 1980. She is a keen tweeter http://twitter.com/annabelkaye  She has developed a range of social media policies for organisations such as the Public Relations Consultants Association, and is committed to helping entrepreneurs profitably manage the people side of their business.

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Filed under employment law, social media