Employment Tribunal

Who you take advice from matters ……… A LOT!

25 Sep
by Donna Obstfeld, posted in Blog, Business, employent law, Employment Tribunal, Performance Management   |  No Comments

Would you allow a GP to carry out brain surgery on you?
Would you want your accountant giving you a manicure?

The answer to both, I suspect, is NO!

So why do people listen to family and friends when they need advice on their staff?

The answer we are sometimes given is “because they have run a business”; but more often than not it is just because the employer was venting and family and friends were trying to be supportive.

Would you want a business coach mentoring you if they had already had three of their businesses go into liquidation?

Would you want a business coach guiding your growth from £100k – £3m if they have never run a business of more than £250k and have only ever sold a product when you offer a service?

Making sure you surround your business with the right people is essential for business success and hiring the wrong people or taking advice from people because it ‘feels’ right is an irresponsible risk to introduce into your business.

I am a member of a number of business-related Facebook Groups where members are incredibly supportive of each other. People pose all sorts of business questions and other group members provide useful, enlightened, inspirational and business-focussed advice. However, (there is often a however) I get quite concerned about the people advice that is often given. It is still being given in the right way i.e. from the desire to be supportive and helpful; but so many times it is legally wrong! It may feel right, it may feel like the moral thing to do, it may even be what the advice giver has done in the past…… but none of that makes the advice right.

There are always options and when giving employment law or HR advice (they are not quite the same thing), it is essential that you know 3 things:

  1. What the law says
  2. What your contracts of employment and/or employee handbook says
  3. What has already been said to / is understood by the employee

When people ask about underperforming staff and everyone says “get rid”, “fire today”, “show them the door”, what they do not understand is the following:

  • Does the employee have a contract of employment and if so, what does it say?
  • Is there a contractual disciplinary, grievance or termination policy within the business?
  • How long has the employee been there?
  • Does the employee have any protected features?
  • Are there any medical issues which are causing the poor performance?

The answers to these will all determine the options available to the business owner and the risks associated with each option.

The latest employment tribunal figures show the number of claims last quarter increased by 165% compared to the same quarter last year. In the last quarter, the largest AVERAGE awards were given for disability (£30,700) and the average award for unfair dismissal was £15,007.

As employees no longer need to pay to take a case to the employment tribunal and discrimination claims do not require 2 years service and these awards are uncapped, employers really do need to be aware of the implications of what they say and the decisions they make.

So, while family, friends and other business owners are happy and willing to provide advice, you do need to make sure that you are taking the right advice. It must be right for your business, right for you and right for your employee…. It is just not worth risking your business over.

It appears you can have your cake AND eat it

14 Jun
by Donna Obstfeld, posted in Blog, employee rights, Employment Legislation, Employment Status, Employment Tribunal, Video, Vlog   |  No Comments

So this is a very quick video to tell you that today, finally, the Supreme Court have ruled on the case of Gary Smith versus Pimlico Plumbers and Charlie Mullins.

Charlie Mullins famously said that his workers, the people that work for him, the plumbers, “couldn’t have their cake and eat it”. But it appears today that the Supreme Court have said, actually, yes they can.

This is going to go across the whole of the gig economy. What they’ve said is that although Gary Smith decided that he wanted to be self-employed, that he was VAT registered, that he hired his vehicle from Pimlico Plumbers, he was actually a worker.

Now, that doesn’t sound like a big deal to some people, but it means that he’s entitled to national minimum wage, he’s entitled to sick pay, and there are other benefits that he is entitled to.

And it’s not just him. It’s going to be anybody who works in that gig economy space. It’s going to stretch to delivery drivers, to Uber drivers, Addison Lee drivers, anybody who has plumbers, engineers, air conditioner specialists, security guards, cleaners, even waiting staff.

We’ve been waiting for this ruling. It is being seen as a landmark ruling, and the Supreme Court have said that, actually, despite the fact that Gary was given the option as to whether or not he wanted to be self-employed or whether he wanted to be an employee and given the fact that he’s been earning £100,000 a year  as a self employed person; when he got ill, he has turned the tables on his employer and decided actually he wanted to be classed as an employee or worker.

These are really, really important details for anybody who’s looking to employ contractors. It is really important to make sure that you’ve got employment status right, because again, it reinforces the fact that, it is not up to the employer or the individual to decide the basis of that employment relationship. The law determines whether or not somebody is an employee, whether or not they are genuinely self-employed, and there are a series of tests that have to be applied to every relationship to make sure that as a business owner when you take on an employee, you’re taking them on as a genuine employee, or if you take someone on as a contractor, they are a genuine contractor.

The expression that I use is, “If it looks like a duck, walks like a duck and quacks like a duck, it is a duck; regardless of whether you call it a hen, a goose, or a chicken.

Employment status is going to be all over the news in the next 24 – 48 hours; it’s all about the gig economy, and it’s all about making sure that the people who are working for you are doing so on a legally acceptable basis. You don’t get to choose, and nor do they. It’s a case of what does the law say.

We’ve finally got some clarity, but it’s going to be difficult for employers to implement.

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