Category Archives: employment tribunal

Time to get people to help in your business?

FreelanceWhen you start your business there is just you and your idea.

Before you know it you need people to help you.  Whether it is your family volunteering to help out, interns, apprentices, volunteers, freelancer or staff, your business success depends as much on how you manage these relationships as it is by your customer and service focus.

Don’t be fooled into thinking only employees have rights at work and you can just abolish all your troubles if you call everyone an intern or a freelancer.

Suppose you employed 9 people on a freelance basis for five years?  Only paid them when you wanted them, no holiday worries, no employment law?

Suppose one took you to tribunal and claimed they were really your employee (and claimed unfair dismissal when you stopped using them).

Suppose they won (tribunals look beyond the label into the real relationship).

Then HMRC wanted the  PAYE on all these ‘freelancers’ (going back a few years).

Could you find the money to sort it all out?  This time they wanted £12,500.

It happens, this is real.

Don’t be scared.  Don’t ignore it.  Handle it.

The best way to handle this in advance.

If you need advice and guidance on employing freelance workers check our Freelance Framework Agreement.

For a free MP3 of Annabels entertaining talk on this subject click

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 agency workers, contract, employment law, employment tribunal, free stuff, young workers

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

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

 

4 Comments

Filed under employment law, employment tribunal

Don’t let compliance lock you down

Is your way of dealing with employment law to look at compliance and do that?   A lot of organisations do just that.   If minimum wages go up, pay goes up.  If statutory holiday goes up, holidays go up.   If maternity leave goes up, that goes up.  You get the picture.

This approach to employment law tends to go with a defensive model of HR.  The processes in the business are ‘locked down’ – often by HR – to prevent ‘mistakes’ or ‘employment tribunals’.     The whole focus of how employees are dealt with is on process compliance.   A lot of insurance based schemes effectively require it.  This has an effect on the organisation – locking it down to processes and timescales that make it hard to keep agile.    

Like a Sumo wrestler, the organisation ‘wins’ by keeping their weight low, making it hard to shift things and staying in the circle.  Sumo wrestlers who are pushed out of their circle lose their match!.   Attacking Sumo wrestlers stay low and use their weight and momentum to knock their opponent out of the circle.  

Is that what someone accessing your grievance procedure is experiencing?  Do people have to ‘hack your sytems’ to get anything done?

This model has its merits in organisations that don’t need to change very quickly, or need to negotiate every detail of their change with Unions or multi-tier boards.   As long as the organisation remains stable, it can work, but anyone who tries to wrestle the Sumo champion will find themselves outside the circle in another job!

Smaller organisations and more entreprenurial
organisations prefer to stay agile  and want to be free
of ‘process’.  Flexibility is a big thing for organisations
that are trying to grow fast and respond to their market.   

They can turn on a spot, and there is nothing they can’t do.  Their approach to employment law is not based on any kind of coherent decision.  They might be generous about one thing, under the legal minima about another, but they handle things as they go.  Of course, not everyone has the skills or the training to be that balanced or that flexible.   This can work if the organisation devotes a lot of time to training, communication and embodying their values, but it can degenerate into something where the people who are not emotional or intellectual gymnasts get hurt.    A lot of organisations appoint their first internal HR person when someone falls over and they or the organisation gets hurt.   There is a temptation to ‘do a Sumo’ on the entrepreneurial gymnasts.  The experienced HR practitioner will miss having systems and processes in place.  The temptation is to import the systems that existed where you were before.   Unless you figure out where the organisation really wants to be on employment law, you will soon be the corporate ‘No’ person.  The one who says, “Employment law says you can’t…..”

Organisations need to be able to adapt and respond to change.  Employment law is part of a bigger mix of ingredients, and should not be allowed to dominate the organisation’s thinking about people, any more than consumer law should make you refuse to sell a product (unless it is dangerous of course).  Most people are neither Sumo wrestlers or gymnasts.   They need to know fundamentals in order to perform their role, but they don’t usually want to be rooted to the ground or a high wire act!.    Employment law is not about demonising or criminalising behaviour (though some off the graph behaviour does belong in that category).  It is about setting codes and signals that let people know what is expected of them, when they are able to move freely and make their own decisions, and what fundamental rules  exist that really are not to be broken.

On the social dance floor, ordinary people can do great things, cooperating with their immediate partner and within a group.   They do this because they learn the fundamentals of the dance and the codes of the dance floor.

Social dancers are not show dancers, they are not athletes but people working and playing in co-operation (and sometimes competition) with a group.   Too many rules and the dancers melt away to dance somewhere else.  Too few and the egoists take over the dancefloor and destroy the flow.

Employment law is a powerful tool in the workplace.  Like the codes of the tango dancefloor it can be used to help the flow of work and relationships.   Our strength in the UK is our ability to make contracts that reflect our own organisational priorities.   We can choose to Sumo, do gymnastics, dance tango, or anything else and embody that into our contracts and handbooks.

And in the interests of equality, everyone can dance – here is a picture of a wonderful ‘disabled’ dancer.

The question I want to ask you today is:

Do your contracts and handbooks speak with the right voice for your organisation and set the fundamentals and codes you need for success? 

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

3 Comments

Filed under contract, employment law, employment tribunal, free stuff, www.irenicon.co.uk

Teacher claims ‘right to distribute pornography at work’

Miss Henderson worked as a mentor and leader for girls aged 11-16 who had barriers to learning, at inner city school in the London Borough of Hackney. She was sacked for gross misconduct after it was discovered that she had been using the school computers to download pornography and distribute it to her colleagues.

She denied that the material (which was explicitly pornographic) was inappropriate, arguing that it might be an enriching experience for the children to see this and from which they would suffer no harm. This argument did not convince the school who dismissed her.

She claimed that because the school had no explicit rule against teaching staff bringing pornography into school or viewing pornography at school, then she could not be disciplined for doing so. And she claimed that dismissing her was a breach of Article 10 of the European Convention on Human Rights – which protects freedom of expression.

The case made its way through tribunal and employment appeal tribunal – both of which found in the school’s favour. How much did that cost in legal fees?

Employers often complain about pointless cases being brought against them in tribunal, but wasn’t the school a bit of a sitting duck? There was nothing in the contract or policies issued by the school the restricted the use of the internet in any way.

If you are an employer who wants to restrict what can be downloaded on your computers (for whatever reason) it is a cheaper and more effective option to issue a simple internet policy or set of rules.

If the school had had such a policy in place (and could show it was issued) they could have stopped this tribunal at a preliminary hearing and may be even have gone for costs against the claimant instead of spending vital money from the education budget on litigation.

A short clear internet usage policy would have done the trick!    

The picture is clipart posed by models and not of the real teacher or class

Christopher Head is director of specialist employment law consultancy Irenicon Ltd. One of Christopher’s key skills is drafting short but comprehensive employment contracts in plain English that put the employer in the driving seat with problem staff. http://www.irenicon.co.uk/ email: info@irenicon.co.uk tel: 08452 303050 (local rate caller number) fax: 08452 303060

2 Comments

Filed under contract, employment law, employment tribunal, unfair dismissal

Reasonable People

We all use words to conduct our daily life.  If I could really see inside your head, I might find that what you associate with things such as ‘good’  or ‘wicked’ might be different to mine.  Many teenagers use ‘wicked’  to describe something they like!

English employment law tends to use  everyday words to describe some very specific concepts.     An employment tribunal judge  talking about ‘reasonable in the circumstances’ ( a key test of whether a dismissal is fair)  will not necessarily be using ‘reasonable’ in the same way as a typical manager.

I doubt whether anyone has woken up and thought:  “I will be unreasonable today and make decisions about my staff that make no sense whatsoever”.   However rational (or irrational) our thinking might be, we naturally tend to believe that our actions and decisions were ‘reasonable’.

Employers are often bewildered when employment tribunals don’t agree with them!    Many believe that tribunals are biased against them  (just as employees often believe the opposite).

This is because an employer’s personal interpretation of reasonable (whatever that might be) is not based on the same concepts as an employment tribunal’s.     A tribunal will be looking for a documented process to show how the decision made.  This may often include what alternatives were  considered and why they were rejected. 

Managers can be extraordinarily reluctant to go through this process – feeling that however  they arrived at their conclusion, it is a right one.   HR can be very keen to document the mechanics – e.g. the minutes of a meeting, who saw whom and when, but can be very reluctant to offer any challenge to a manager who is going down an eccentric or dangerous track.  As in any other decision making process, if the method of gathering data and evaluating it is defective, there is a very high chance the decision will be wrong.  Sometimes we all need someone to say – “Hey – pay attention to that, it could be important” or “Are you sure this is really the key issue?”

Tribunals do not look at whether a dismissal decision was right or wrong, but whether it was ‘within a range of reasonable responses’.  If the business can demonstrate a thoughtful process and can identify why other alternatives were not appropriate, it is rarely a problem to meet this test.  

Aligning your decision-making process with what the business needs, and adding in a fair degree of self-challenge at each stage, will allow you to make appropriate decisions for the business without undue fear of legal challenge.

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 – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

1 Comment

Filed under employment law, employment tribunal, unfair dismissal

Reasonable but wrong?

Many areas of employment law rely on the idea of a ‘reasonable belief’.   A reasonable belief does not have to be correct.  I may quite reasonably believe something that turns out not to be the case.

 

An employer who is trying to determine whether a gross misconduct offence (such as theft or gross negligence) took place does not have to establish beyond reasonable doubt that the event took place and the individual they discipline is responsible.  Employers have to show that they reasonably believed this to be so.

A reasonable belief is arrived at after a robust process which means:

  • The individual whose job is at risk knows what they are accused of and has an opportunity to comment
  • The investigation is not tainted by prejudgement or bias
  • The decision is made having taken into account the individual’s explanation
  • There is a right of appeal

An employer who believes a theft to have taken place would be on thin ice if they could not show any goods or money had gone missing, but it is not necessary to conduct a criminal style investigation with a view to proving who is responsible.  Employers can make up their minds on the basis of the facts they have before them.  That can include, in certain limited circumstances, dismissing two or more individuals if they cannot determine (after effort) which one is responsible for the act.

The ‘reasonable belief’ is arrived at as a result of a ‘reasonable method’.

There is no room here for a faith- based type of belief – telling a tribunal that a minor deity told you who was stealing from you is not likely to impress, however profound your personal belief system might be.  There is not much room here either for ‘gut feelings’.  Managers will need to go beyond ‘a feeling’ and produce some logical reason that connects an individual with an event (and makes it something they are responsible for).

Gut feeling will be a reason to investigate, but it is not an investigation.

It is easy to get caught up in disciplinary investigations and forget to look outside our current thinking.  What seems reasonable and self evident to us, at midnight having worked three days on a problem, may seem far from obvious or rational in tribunal a few months later.

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 – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

8 Comments

Filed under discipline and dismissal, employment law, employment tribunal