Category Archives: free stuff

TUPE and the Big Society

Charities who are tendering to provide services that are currently provided by local authority, civil service or quangos find themselves caught in the Transfer of Undertakings (Protection of Employment)  Regulations –  TUPE  which may apply where a change of service provider is taking place.

TUPE has the effect of putting the new employer in the legal situation they would have been in if they had employed the transferring staff from the day they started with their original employer (the transferor).  Outstanding liabilities under the contract will transfer through to the new employer – anything from accrued holiday, to back pay, equal pay claims as well as unfair dismissals relating to the transfer.

Government itself has created an extra problem for charities by agreeing with unions a set of protocols that go beyond the basic legal provisions of TUPE.   For example, under TUPE there is no obligation on an employer to create a final salary pension scheme, or to honour discretionary termination payments.  But the Cabinet Office Statement of Practice concerning Staff Transfers in the Public Sector sets out “there should be appropriate arrangements to protect occupational pensions, redundancy and severance terms of staff in all these types of transfer”.  Whilst this guidance has been revoked for local authorities, it has not been revoked for all of the public sector.

There is a significant difference between the redundancy entitlements of ordinary employees and civil servants.   An ordinary worker is entitled to statutory redundancy pay at a maximum allowable weekly pay of £430 whereas the civil service redundancy scheme has no limit and even has a minimum.  Statutory redundancy is calculated on age related multipliers of a week (or a week and a half, or half week depending on the age of the worker) whereas the Civil service scheme is calculated with multipliers of months at full pay.

Whilst charities do not always pay their existing employees at the statutory basics when it comes to contractual benefits, few charities are well enough funded to have staff on the same terms as civil servants.

For example:

Statutory entitlement Typical local government/civil service
Holiday 5.6 weeks including bank holiday 6.6 weeks including bank holiday
Sick pay SSP only 6 months full pay, 6 months half pay
Redundancy Statutory only maximum allowable weekly pay £430Years of service multiplied by weeks (or 1.5 weeks or 0.5 weeks, age dependant) No maximum weekly pay (minimums apply)Years of service multiplied by months
Pensions Stakeholder/NEST Final salary

Charities who are receiving staff via TUPE transfers find themselves paying higher benefits than they normally pay, with much higher termination payments if they cannot afford to keep the staff on.  Charitable funding is often  quite short term, often project by project, or year by year at best.  Such higher benefits and termination payments can risk the viability of the Charity itself if they are not foreseen and budgeted for.

Charities who intend the service to be provided by volunteers may be able to work around the TUPE problem if their existing delivery model is long standing and pre dates the transfer.  The situation is changing, but it is still a high risk scenario for many Charities to simply ‘pitch’ to provide services that are currently provided by salaried staff.

My experience of working with social enterprises and charities and helping them plan TUPE transfers is that much of the advice they are given encourages them to take on obligations beyond the ones they are obliged to in law (or even by the government’s own standards) and leaves them very vulnerable if there are changes in funding at a later stage.   A well planned tender to outsource work needs to properly evaluate the TUPE situation and prepare for it.

See our previous blog

To be continued

Christopher Head is qualified as a barrister.  He edited Harvey on Industrial Relations and Employment Law and  a director of Irenicon Ltd a specialist employment law team.  To join the conversation about TUPE you can join our free KoffeeKlatch teleseminar on TUPE by registering via http://koffeeklatch.co.uk/category/tupe/

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Filed under contract, employment law, free stuff, redundancy, TUPE

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

TUPE or not TUPE

The TUPE regulations [the Transfer of Undertakings (Protection of Employment) Regulations 2006] cover a range of scenarios –   from mergers to ‘service provision changes’ – which occur when the work being done by an ‘organised grouping’ of employees (which can be just one person) is moved to another organisation.

A fortune has been spent on legal fees arguing about when moving a piece of work from one provider to another is a “service provision change”, and so is, or is not, covered by TUPE.   You can see in the case reports the desperation of legal advisors and HR teams who simply failed to realise early enough that the Regulations applied to their circumstances.

Whilst there have been some useful cases about what happens when the work is entirely dispersed across a wide range of organisations (no TUPE), the majority of contracting-out exercises (and  contracting-back-in,  and change-of-service-provider  exercises) are covered by the TUPE regulations and are likely to remain so for a while.

TUPE is a bit of a melting pot for HR and employment lawyers, since it is also part of the commercial contracting and purchasing (or sales) side of the organisation, and the thinking of those functions does not always incorporate what HR need to do to make the process work.

In simplistic terms, an organisation considers outsourcing when the function/individuals:

  • are too expensive to retain in house for the benefit they deliver;
  • are isolated experts on specialist subjects for whom the organisation can offer no ongoing professional development or support;
  • are  not delivering the right performance against budget;
  • where an external body has made a policy decision this should be so

Whatever the reason for deciding, the end effect of TUPE is as profound in psychological terms as it is legally.

Think about it this way.  Imagine you woke up this morning with a complete stranger beside you, only to find out that the law regarded you as having been married to each other for years.  Not only that, everything the other person did with regard to your household legal affairs is something that is binding on you.  So if your new (but in law, longstanding) partner ran up a major credit card bill before you met them, you are required to pay the bill.   That is how it is for an employer who has just TUPEd in a team.

And how about being the person transferred.  Suddenly you are ‘in bed’ with a complete stranger (or worse someone you know well and positively decided never to date, never mind marry).    You are being passed around in a crazy wife-swopping party and you didn’t ask to go to the party.

No wonder people go into denial and say – this can’t be happening to me.   But TUPE is real, and it does have this effect.    You can see why people spend a fortune litigating and saying “this can’t be applicable to me”.

To be continued …..

If you want to join our free KoffeeKlatch seminar to talk about TUPE register via http://koffeeklatch.co.uk/category/tupe/

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 benefits, contract, employment law, free stuff, pay, redundancy, TUPE

When Mum can’t turn up for the school play at Christmas..

Annabel: The school system is remarkably unable to link up with parents and bosses when it comes to Christmas. A few weeks before Christmas we get notes about Christmas plays and concerts (a must do for at least one parent in most households) and to cap it all a lot of schools close at lunchtime on the last day of term meaning someone has to pick the children up mid-day.

Allie: We have constructed The Perfect Christmas Fantasy. But it is a fantasy. It works well as a fantasy, but is really hard to make work in practice! Add in to this mix, if you are a teacher, that you probably have children at different schools plus commitments to your own school, and the whole thing starts to become a logistical nightmare rather than a celebration.

Annabel: While it can be OK in some firms for the non parents to disappear down the pub, it can be a bit tricky to try to organise an early finish for a school run or school play. We are always afraid the boss won’t be happy about it. There is no overall legal right to time down the pub or the school run but bosses can find it hard to deal with everyone wanting to be off to party or do family things.

Allie: Flexible teams are more likely to accommodate this. If you have been the person who never gave an inch throughout the year it may be difficult to get your colleagues to agree.

Annabel: Your request to take time off for the carol concert is one of many things a boss has to juggle. There will be times when you can’t go. Sometimes your partner, parent or someone else will have to be there.

Allie: Ask your child which is the most important event for them and try to focus on going to that one. Follow it with a favourite meal or other celebration. This makes the day stand out and be memorable.

Annabel. If you need annual leave around Christmas to cover school holidays you need to book this up really early. While bosses are sympathetic to the odd babysitting let down, you can’t just leave them hanging every time something goes wrong at your end.

Allie: Consideration is the key. If you want consideration you also need to give it. It’s also a very good model for your child to understand sharing in the grown up world. Balance your attention throughout the year, rather than trying to do everything during the festive season.

Annabel: Many organisations have to roster staff over Christmas. While many colleagues volunteer so that those with young children get Christmas day, there is no general legal right to get the days off you want. There will be people on Christmas day who don’t get to see their kids open their presents. We are all grateful for that when we need their help.

Allie: There are lots of qualities that are good to focus on at Christmas time other than celebration. Commitment, dedication, loyalty and many others you can name.

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, flexible working, free stuff, holiday

Workplace fall out from the riots?

A  lot of businesses will wake up today with problems stemming from the riots.  With clearing up and sorting things out, the sad reality is that many small businesses are tipped over the edge by looting and damage and will not be reopening when their insurance money eventually comes in.

For those whose who are clearing up and carrying on today, here is our short guide to the employment law FAQ we advised on last time there were a lot of riots.

Other duties – can I ask staff to do something unusual?

Employer’s normally need to contract for flexibility but in times of unexpected disaster you can  ask your staff to do duties they normally wouldn’t undertake.  It is not unreasonable to ask managers to wield a broom in these circumstances.  Most staff will be happy to muck in and help out. 

Be careful that you do not ask them to do anything dangerous, since health and safety has not been suspended, even if law and order has.  If a member of staff refuses their regular  or temporary duties on health and safety grounds you should take advice before continuing to insist.

If you are unlucky enough to have an uncooperative member of staff we would be happy to advise (new callers get 20 minutes free advice which should cover this).  

Employers and employees need to work together to find a way through this,  but it is important to know where the legal land  lies

Workplace shut?

If the workplace is entirely ruined or shut – beyond the staff helping to clear up then you should be aware that staff can be sent home but they may be entitled to be paid.  You need to look at your contract to see if they are entitled to be paid their normal rate of pay.  Sending staff home unpaid without consent can trigger constructive dismissals and you need to have some idea of what you are doing before you set off.

Your staff can agree not to be paid, or agree to take any unused holiday, but if they are not being paid, despite their agreement they will still be entitled to guarantee pay.  This is a statutory right.

In any event, anyone who can’t work because the workplace is closed has a default right to guarantee pay for the first five working days in any three month period.  The current rate is 50% of a day’s pay subject to a maximum daily payment of £22.20. 

Staff unable to attend

Some staff will have had their homes, or journey to work affected and eve if your workplace is open for business as usual, they may not be able to attend work on their normal basis.   

If your business has been otherwise unaffected you may be in a position to ask them to make up the missing hours at a later date.  If so, make sure you keep a proper record of which hours are missed, since memory fades and can trigger disputes.

In reality hourly paid workers may not be entitled to be paid for not being at work except under holiday and other paid absence schemes, so you should be sure you know what you contracted do, and what you are thinking of doing beyond the contract, so that you don’t get in a muddle and think you are obliged to do things you can’t afford.

Children can’t get to school

Some parents may find their children cannot get to summer school  or child minders booked for the summer holidays (even though they could get to work).  Parents are entitled to emergency unpaid dependants leave to sort out childcare and take care of children.   Some employers have contracted to pay specific number of days.  If you have not gone beyond the statutory entitlement it is to unpaid leave.

Parents often ask for annual leave at short notice to ensure they are still paid.  Many parents are already on annual leave now that the schools have broken up.

Where the job is suitable, and the children are old enough you might want to consider temporary home working, if the facilities for homeworking are there or quickly and easily assembled.   You need to take a few moments to be quite clear whether this is working at home for the normal hours (location shifting) or whether this also includes changing the hours (time shifting) so some work is done when the kids are in bed,e tc  and what duties you want done.  Although this is a useful short term measure, one of the problems with home working is figuring out how to measure what is being done.  Make short term arrangements if needed so you can get back to this once the initial crisis is over.

Customers chased away?

Some businesses will be open, staff available, but the customers may not be quick to return to areas that have been severely damaged.  You should keep a careful eye on your turnover and expenditure since this can be the last straw for some businesses.

Making payroll

If things are so bad you think you may not be able to make payroll, contact your bank and your accountant straight away.  We all hope the insurance companies will operate some kind of fast track system, but fast in insurance is not the same as fast in business and you need to take long hard look at what payroll is, and how much is in the bank (or not) and how much money is really going to be coming in over the next few weeks, particularly if your premises are in a badly affected area.  

Missing pay dates without agreement can trigger a constructive dismissal, never mind financial chaos for the staff, and difficult as it is, it is best to be honest with people and set out how things are, rather than make promises you can’t keep.

Have a cup of coffee with us

If you have questions we haven’t dealt with, please  email us on advice@irenicon.co.uk.  We will be happy to help.   We will be organising a few free telephone conferences (koffeeklatches as we call them) to support employers in Croydon.  Some will be during normal working hours and some outside them.    If you think you would like to participate email us on info@irenicon.co.uk letting us know what you want to discuss and whether you would prefer inside or outside normal office hours.   We can then make sure you know when they are.

Our heart goes out to all our business clients, and all the business community who are affected by the rioting.

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 contract, free stuff, pay, Riots

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

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

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