To be a Worker or not to be

We have seen a series of Tribunal cases of late that have challenged where the line between worker and contractor should be drawn.  So, to try and help Employers know where that line is drawn we have tried to clarify the current situation says Chris Wilkinson from Expert HR Solutions.  He cautions however that as several cases are still awaiting final rulings the situation is fluid and suggests professional advice should always be sought as the cost of getting it wrong are significant.

The recent tribunal and court decisions have each found that some ‘self-employed contractors’ may be ‘workers’ for employment law purposes, even if they retain their self-employed status for tax purposes.  The Uber drivers’ case has been all over the news.  The Tribunal held that the two drivers were workers, at least whenever they had Uber’s app switched on. Uber still maintains that the drivers were self-employed contractors. The Employment Appeal Tribunal agreed that the drivers were workers. Uber are taking the case to the Court of Appeal later this year.  There have been several other cases with similar rulings including CitySprint, Excel and Addison Lee cases and the Pimlico Plumbers case, which is currently before the Supreme Court.

The distinction between worker and contractor is financially important says Chris. Unlike self-employed contractors ’Workers’ are entitled to basic rights including holiday pay and the national living or minimum wage.  ‘Employee status’ brings with it further rights and protections.  These include the right to claim for unfair dismissal and the protection of TUPE.  Now that the barrier of employment tribunal fees has been removed, workers may seek to challenge the line between ‘worker’ and ‘employee’ status too.

All of the above is just the employment law situation. If we were to add tax law to the mix, the waters would get muddier still.  The Taylor review of modern working practices favoured retention of the three-tiered employee, worker, self-employed contractor approach, though it found the word ‘worker’ confusing and it proposed that those with worker status should be reclassified as ‘dependent contractors’.  The review went further, despite its scope, suggesting that the distinctions drawn in tax and employment law should be aligned.

So, what are the key considerations for business asks Chris.   If you engage people to work for you, you should think carefully about their status before they do.  Make sure the paperwork and the reality tell the same story.  Saying that someone is one thing when they are clearly another is grit for the conflict mill.  Does the contract clearly define the worker’s status; for example, are they employed, a worker or self-employed?  Are the terms clear and user-friendly?  Do they make objective sense? Is there clear guidance on how the worker will report for work, and account for the time spent working under the contract?  Do the terms set out how tax and national insurance will be dealt with?

Overall, do you feel confident that the terms accurately reflect the true relationship with the worker?  Importantly, do you know what this status means for each of you?  If you don’t, then why not give us a call on 01202 611033, your initial consultation is FREE.

Disability Discrimination and Dismissal

The London Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s finding that a former charity worker dismissed for ill-health capability suffered disability discrimination.

According to the EAT’s judgement there was no proven link between the disability of the claimant and her dismissal.  The Judge said that the employee had not presented her former employer with the disability discrimination claim and “it therefore did not respond to it”, and said the previous Tribunal judgment in favour of the employee “must be set aside”.

During a holiday to Ghana in August 2014, she became seriously ill with muscular tumors known as fibroids on her uterus, and anaemia. On her return home, she was immediately signed off work. She never returned to work.  In November 2014, a meeting took place between the employee, her line manager and a HR manager, regarding her condition.  It was left that matters would be reviewed in due course.

A first stage long-term sickness absence review took place on 22 January 2015 under the employers sickness absence policy, followed by an occupational health assessment on 6 February 2015.  This found it was unrealistic for the employee to attempt to return to work, and it was impossible to predict when she may return.

Although the employee suggested she could return to work within weeks during the first review meeting on 20 February 2015, another occupational health assessment in April 2015 revealed she could not return within four to six weeks.  By the time the employee’s entitlement to sick pay came to an end in April 2015, she was invited to a second sickness absence review on 29 April 2015.  The only reference made in the meeting to dismissal was by the employee.  However, the employee was dismissed on the grounds of ill-health capability by letter dated 1 May 2015. She appealed 10 days later.

During the appeal hearing on 29 May 2015, the employee said the meeting on 29 April had been unfair and that she would have explored other options with her doctor had she known the seriousness of the meeting.  By a letter dated 17 June 2015, her appeal was dismissed.

She brought her claim to the employment tribunal.  Looking at the process as a whole, the tribunal held that the employer’s conclusion in the appeal that the employee remained unfit for work for the foreseeable future was open to her on the evidence, and that accordingly the dismissal was substantively fair.

As to the question of fairness, however, the tribunal concluded that the dismissal stage was procedurally unfair, because the employer, both in the 29 April meeting and in its letter inviting her to it, failed to explicitly tell the employee in clear terms that the process had reached the second stage formal meeting under its policy and that one of the options was dismissal.

Acknowledging that the fairness of a dismissal must be considered in the light of the procedure as a whole, the tribunal considered the appeal process.  It found that the procedural unfairness at the dismissal stage was not cured by the employer’s appeal process.  It found that the employee’s claim of discrimination arising from disability was established but it needed “to make it clear that we have no doubt that the claimant would have been dismissed within a very short while had a fair process been followed”.

The employer appealed and the Judge allowed the appeal and concluded that the claim of unfair dismissal should be dismissed because the employer had adopted a fair procedure.  In addition: “As the employee was no longer in receipt of company sick pay at the point of her dismissal, she has suffered no out of pocket loss because of this omission.”

The employers appeal against the discrimination the Judge said that such a claim required proof of the causal link between her disability and treatment, which the employee had failed to provide.

Chris Wilkinson of Expert HR Solutions said that the employer could have saved themselves a lot of money and time had it been explicit about the potential outcome of the hearings and given the employee the opportunity to explore other opportunities at an earlier stage.

If you want pragmatic advice on any matter concerning your employees or potential employees why not give Expert HR Solutions a call on 01202 611033, your initial consultation will be FREE.

Ouch or Insure?

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There has been a lot in the Press of late about Employment Tribunals not least because of the Supreme Court Ruling that had the immediate effect of stopping Tribunal Fees says Chris Wilkinson from Expert HR Solutions.  We therefore felt it would be good to follow up our Blog on the removal Fees with a more detailed picture of what it means to employers to be taken to Tribunal.

Before you stop reading please bear in mind the number of Tribunal cases has risen by 36% in the last year.  There are 5.5 million businesses in the UK of which 99% are classed as SME’s and 5.3 million of them employ fewer than 10 people.  This means that about 1.5% of all businesses are taken to Tribunal each year.

Here at Expert HR Solutions we pride ourselves at keeping our clients out of Tribunals.  We do that in two ways, firstly our clients have access to our helpline which is staffed by very experienced, qualified HR Professionals all of whom are Chartered Fellows of the HR Professional Institute, and therefore hold Masters level qualifications in HR.  For the majority of our clients seeking our advice and then following it is enough.  However, we can’t stop employees taking you to Tribunal, so we offer the option of insuring our advice against the cost of being taken to Tribunal.

Please sit down before you read on, this is frightening.  Costs are very rarely awarded to the winning side in Tribunals, so even if you win you are likely to have to bear your own legal costs.  A good Employment law Solicitor is likely to cost between £150 to £200 per hour, including preparation time we believe your legal costs are likely to be in the order of £15,000.

Now comes the really scary bit, the average Tribunal award for unfair dismissal was £13,851 and the average award in any discrimination case was £28,400.  Add in your legal costs and you could be facing costs of between £28,851 and £43,400.  That is why we really believe our services represent fantastic value for money, in five years of trading we have never had a client taken to Tribunal as a micro business you could pay for our Gold standard service for about 40 years.  Take out the optional insurance, take and follow our advice and those scary legal and award costs disappear too.

Need some more persuading?  Well, the number of costs awards made by the Tribunal in 2015/16 followed the trend and fell to 658.  More awards were made to Claimants (employees) than Respondents (employers).  The median award remained at £1,000 for the third year in a row so would not have completely reimbursed you legal costs.

Give us a call on 01202 611033 to find out more about our services, costs and insurance costs and details.

 

How much is a weeks’ pay?

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This used to be one of the simpler questions we are asked says Chris Wilkinson from Expert HR Solutions.  If the employee was paid hourly then multiply the number of hours worked in the week by their pay, if paid an annual salary divide the salary by 52.14, (the number of weeks in a year), and bingo you have the weeks’ pay.  Why should you care?  Well a weeks’ pay determines to all sorts of things like Maternity pay, Statutory Sick Pay, Redundancy payments and so on.

An Employment Appeals Tribunal (EAT) has upheld a tribunal’s decision that the calculation of a week’s pay under the Employment Rights Act 1996 should include the value of employer pension contributions.  In the past when calculating a week’s pay the established practice has been to exclude employer pension contributions on the basis that they are not paid directly to the employee but rather are paid to a pension fund.

The decision will increase the amount of the basic award and statutory redundancy pay where an individual earns below the cap of £489 a week.  It will increase unfair dismissal compensatory awards for a much broader group i.e. all those earning less than the current statutory maximum compensation cap of £80,541.

Employers who fail to inform and consult under TUPE or during a redundancy process can be ordered to pay a protective award of up to 13 weeks’ pay to each affected individual, and the same interpretation will apply although this time without the benefit of any form of pay cap.

This increased financial exposure on unfair dismissal claims may well influence the cost-benefit analysis of litigating versus settling, and it will make it even more important that collective and TUPE consultation processes are well-managed to ensure there is no breach of the rules.

If you have any form of enhanced pay here at Expert HR Solutions we advise you send any such policies in for a review as how this ruling will apply depends on the precise wording of the policy.  Remember all our reviews are free of charge.

EXPERT HR SOLUTIONS VIEW ON TODAYS’ SUPREME COURT RULING

 

 

 

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Today the Supreme Court ruled that Employment Tribunal fees are unlawful

What is the background to this decision?

In July 2013 the government passed a piece of secondary legislation that introduced Employment Tribunal fees.  The reasoning behind this action was to reduce the number of spurious claims being made and the overload in the Tribunal system.  At this point an employee with a grievance, or issue, against their employer could only lodge a claim once they had paid an appropriate free which could be up to £1,200.

It has been reported that this secondary legislation resulted in a 70% reduction of claims.

The ruling today means that this is no longer the case.

What does this mean for employers?

 Any employee, or candidate during recruitment and selection, can now take the employer to a Tribunal without having to lodge any monies.  It is likely that this will result in an increased workload into Tribunal offices, causing delays to hearings of months, not weeks.

It will also adversely impact the ACAS Early Conciliation service will be forced to deal with every claim that comes into them also causing delays.

For employers, particularly those in small and medium enterprises, you will have to ensure your insurance cover will handle the legal fees for your response to the claim, together with a barrister, or solicitor, to represent you at any Tribunal hearing.

How Expert HR Solutions can help you

At Expert HR Solutions we can offer a range of services to support you.  These include different standards of an ongoing support together with specialist insurance cover for legal and Tribunal costs.

If you would like to have a confidential discussion about any particular HR issues please call us on 01202 611033 or email Chris at chris@experthrsolutions.co.uk

 

 

 

 

 

 

How much do you have to pay a man on Shared Parental Leave

 

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If you want proof that in the UK the Politicians make the laws, but the Judges interpret them and it is the latter then read on says Chris Wilkinson from Expert HR Solutions.

This is not a call for immediate action, Chris goes on, but it is an important ruling in a Tribunal. The Appeal Tribunal may overturn or uphold the ruling so we await clarity.  The government technical guidance provided with the introduction of Shared Parental Leave (ShPL) made it clear that there was no legal obligation to match enhanced rates of pay for parents taking ShPL.  However, in a recent case the father and claimant wanted to take ShPL after his wife was diagnosed with post-natal depression and was advised by her GP to return to work.  The Company paid enhanced maternity pay for the first 14 weeks of leave and enhanced paternity pay for two weeks, followed by statutory ShPP.  The claimant worked for the same company and asked to be paid the same higher rate as a woman on maternity leave.  After his request was rejected, he issued proceedings claiming both direct and indirect discrimination. He succeeded only in relation to the direct discrimination claim.

The tribunal ruled that the claimant could compare himself to a female employee who was taking leave to care for her child, although this would not apply until after the two-week compulsory maternity leave period.

The tribunal also rejected the argument put forward by the employer that the special protection afforded to women on maternity leave, which allows more favourable treatment, could shield an employer from a challenge to enhanced maternity pay.  After the first two weeks, the leave was about caring for the child, it was not special treatment in connection with the mother’s pregnancy or childbirth.  The tribunal accepted that, after two weeks, the government had offered parents a choice that the primary carer under ShPL could therefore be the father or the mother. They commented that the concept behind ShPL was that men were being encouraged to play a greater role in caring for their babies.  Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.

If you want help in this or any other issues related to your employees why not give us a call on 01202 611033.  The initial conversation is free and we promise to give pragmatic advice in plain English.

How honest are your employees?

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Do you always require a GP’s Fit Note when an Employee is off sick for more than seven days asks Chris Wilkinson from Expert HR Solutions.  Why?  A former secretary who defrauded her employer and colleagues out of tens of thousands of pounds by lying about having cancer has been ordered to pay back just £1.

Why so little?  The Judge ruled after a confiscation hearing that the employee had no assets to enable her to pay the money back and that the Company should have sort medical proof of her cancer before giving her the money.  The Judge also noted that she had had already been given a 12-month suspended sentence after admitting two counts of fraud.

The Company lent her £5,000 to fund private medical treatment and handed her almost £10,000 in sick pay, because she claimed the NHS would only provide palliative care for the Cancer.  Her co-workers also donated £1,400 to charity in her name.

This may be an extreme cases says Chris but it is not unique.  In 2011 a man confessed he had lied about testicular cancer but had defrauded his employer of more than £13,000 in the process.  In 2013, a teacher was banned from the profession and given a six-month suspended sentence after lying about a younger relative having cancer to get paid time off from her primary school job in Wales. The deceit cost the school more than £100,000.

Sadly says Chris dishonesty at work was not unusual.  Good housekeeping and common sense can substantially reduce risk.  Particular attention should be given to common problem areas such as hiring, absence, entertainment and when employees handle money.

When hiring we suggest that employers carefully check candidates’ employment history, qualifications and reasons for time out to avoid similar situations.  Insist on proper medical confirmation of the reasons for sickness absence and make sure that rigorous expense processes are in place.  It is much easier to stop things before the problem escalates than to try to recover cash from an individual who has already disposed of it.

If you want help with this or any other matters concerning employees why not give us a call on 01202 611033.  Your initial consultation is free and we promise to speak in plain English.

What’s Changed

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A lot of cases have been heard in the last month or so that have changed the way the law will be interpreted in future says Chris from Expert HR Solutions. It is not easy to make Employment Law sound interesting, but we will try so please read on.

Chris explains that most Employers know that if they treat one person less favourably than another then they may be guilty of direct discrimination, but the Equality Act also has Indirect Discrimination which is harder to understand and therefore to avoid. Indirect discrimination is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The ruling in two Supreme Court cases are important in how employers must act says Chris.

In the first case the employer required employees to pass a ‘core skills assessment’ in order to be considered for promotion, a practice that has been prevalent in many organisations for years. The claimants argued the practice indirectly discriminated against black and minority ethnic and older workers. The Appeal Court had decided it was necessary not only to show the provision, criterion or practice, in this case, the test, discriminated against both the protected characteristic group and individual claimants within it, but also the reason why it was discriminatory. But the Supreme Court ruled the employees only had to show the provision, criterion or practice caused the disadvantage and that the claimants were personally affected by it.

The other case was dealing with a similar issue. The Supreme Court found the disparity in pay between Christian and Muslim prison chaplains, who became salaried employees at different points in time and so were at different points in an incremental pay scale, was justified by the legitimate aim of rewarding skills built up through experience.

So what do these cases teach us asks Chris. Well firstly he goes on employers must not dismiss out-of-hand complaints raised which assert indirect discrimination, just because they can’t see any link between the practice complained of and the protected characteristic relied upon. If employers do something which an employee claims has an adverse effect on those with a protected characteristic, they should look at why they do it, and whether they can change it, without losing its desired aim.

Secondly Employers should always check whether their policies or practices could have a disproportionate impact on particular groups and that even if the reason for the requirement being complained of is not discriminatory, this will not prevent it from amounting to indirect discrimination, putting the onus back on the employer to justify a potentially discriminatory policy or requirement.

The Court of Appeal has confirmed that an organisation’s appeals process can correct a faulty disciplinary procedure and make the resulting dismissal fair. So employers must make sure that the person hearing any appeal is aware that if they believe the original hearing did not follow the disciplinary procedure they should effectively run a full re-hearing of the case and follow the procedure. The outcome may be the same but by doing this they make the process a fair one.

The final case does not unfortunately give quite so much clarity on how night workers on call but allowed to sleep on the employer’s premises are engaged in work that counts towards the national minimum wage. The EAT decided a ‘sleep-in’ care worker, who had to assist a ‘waking’ night time care worker, was entitled to be paid according to his contract, rather than accept a £25 allowance specified for this type of work at his interview. Chris explains that if employers have employees who are required to be on their premises overnight some of which must be awake but some can sleep unless called upon to work and they pay an allowance for each such practice to the latter they must also make it clear in the Contract of Employment how and if the latter group will be paid if called upon to work. He goes on it is unlikely that it would be legal to rely just on the allowance as full and final payment.

Mental Health

 

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The good news is that according to a large-scale study by the Mental Health Charity Mind Employers are getting better at managing mental ill-health says Chris Wilkinson from Expert HR Solutions.  The not so good news, he continues is that the study shows that 26% of Employees who describe their mental health as poor say that work is the main cause.  When you consider that around 12% of employees suffer from poor mental health the problem is widespread and likely to be present in most workplaces.

The research also laid bare the discrepancy between Employees and Line Managers with 54% of the former feeling supported by their line manager, but 73% of managers said they would feel confident supporting an employee experiencing a mental health problem.  Part of this discrepancy may be explained by the fact that only 26% of employees said they would be likely to seek support if they were experiencing a mental health issue.

Generally the research showed a greater awareness by management of external and internal support mechanisms with 72% of employees suffering from mental health issues saying they had been made aware of support tools such as employee assistance programmes, counselling, staff support networks or informal buddying systems.  Those that had been offered reasonable adjustments was found to be 56% such as changes to hours worked or the nature of some of their workplace duties.

Emma Mamo, head of workplace wellbeing at Mind, said the charity had noticed employers taking “great strides when it comes to tackling stress and supporting the mental wellbeing of their staff” over the last few years. She added that forward-thinking employers were making mental health a priority: “We’ve seen good practice right across the board, from each and every one of the 30 pioneering employers to take part.”

Here at Expert HR Solutions we have experience of dealing with these difficult and sensitive issues says Chris as in a previous incarnation he worked for one of the largest EAP providers in the UK.  If you believe any of your staff are suffering from mental health issues why not give us a call on 01202 611033, the initial consultation will be free, confidential and very supportive.

 

Brexit makes no difference…

 

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“Have I got your attention?  I hope so because what I am about to talk about will affect every Employer from 25th May 2018″, says Chris Wilkinson from Expert HR Solutions.

Quite simply the Data Protection Act (DPA) will be replaced by the European Union’s General Data Protection Regulation (GDPR) as it will apply to organisation’s operating within the EU AND to those outside of the EU that offer goods and services to individuals within the EU.  As with the DPA the GDPA will have Controllers who say how and why personal data is processed, and Processors who act on the controller’s behalf.

While the principles are similar to those in the DPA, there are some additional requirements that UK companies need to be aware of.  The most significant is accountability.  The GDPR requires you to demonstrate compliance by design.  This means ensuring you have adequate systems, contractual provisions, documented decisions about processing, and training in place.

As with the DPA, the GDPR will apply to ‘personal data’ held about employees, however, the GDPR’s definition is broader.  Any data that can be used to identify an individual is considered to be personal data.  It can include things such as genetic, mental, cultural, economic or social information, and IP addresses.

Sensitive personal data known as ‘special categories of personal data’ is broadly similar to the DPA but there are some minor changes that will need to be addressed.  It will include genetic data and biometric data where processed to uniquely identify an individual.

The issue of ‘consent’, where it validates the use of personal data, is also a significant development.  Organisations need to ensure they are explicit when seeking consent and detail how they will use the information.  Given that you are required to have a Contract of Employment for all Employees of a Contract for Services for sub-contractors and both of these documents contain sensitive personal data it would be wise to include a clause making it clear that the organisation will hold this data for the purposes of employing or sub-contracting the individual.

Here’s our list of actions to consider:

  • Do you need to appoint a data protection officer? Under the GDPR, some companies will be required to have one, including public authorities processing personal information; organisations whose ‘core activities’ require ‘regular and systematic monitoring of data subjects on a large scale’; or where there is large-scale processing of special categories of data.
  • Do you protect privacy by design? This emphasises the importance of measures such as privacy impact assessments (PIAs).  As data controllers, PIAs will assess where privacy breach risks exist and how to minimise them.
  • Have you adequate systems in place to manage data breaches that may arise and to comply with the notification requirements? The GDPR requires your local data protection authority to be notified of a breach within 72 hours of discovery.
  • Will you be able to comply with the right to be forgotten if the data subject requests it?
  • Will you be able to ensure compliance with the more restrictive principles of not holding data longer than absolutely necessary, and not changing how you use such data from the original purpose(s) specified?

So why is all this so important?  Well, the penalties that can be imposed will increase substantially.  Depending on the nature of the breach, fines can be around £15,000 or 4 per cent of the total annual global turnover, based on the preceding financial year, whichever is the greater.

So if you are concerned about the implications of the GDPR from an Employment perspective why not give us a call on 01202 611033 and we will be happy to help.