Employer Right to Work Checks
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EAT confirms Uber drivers are workers

It has been confirmed by the Employment Appeal Tribunal that the drivers for the transport company Uber are not ‘self-employed’ and are in fact workers by the Company.  Uber operates a digital platform to provide transport services, whereby, drivers sign up online and are connected with customers through a mobile phone app.  Uber had argued that it is no different to the ‘traditional’ cab company and they acted as the ‘agent’ for the drivers and not the employer and maintained that they did not control when and how drivers work.

According to Uber, their guidelines for drivers as to how work should be done are ‘recommendations’ and not obligations, they also argued that there is no obligation on the drivers to perform work for instance they were not obliged to switch on the app or accept driving jobs once the app is switched on as well as the drivers bearing the financial risk of the transaction, Uber can choose to absorb the loss if a customer refuses to pay, but is not obliged to do so.

The EAT rejected these submissions and upheld the decision of the employment tribunal that the drivers are engaged as workers by the company, when the drivers were driving, they are a worker and that is their working time

The reality of the situation was that the drivers are subject to significant control by the business.

It was less certain that the drivers were workers when the app was on and they were waiting for a job to be allocated (as they could in theory be working for multiple companies during this time).  However, the EAT accepted that the tribunal was entitled to decide that the drivers were also working during this period particularly because there was an obligation on drivers to accept 80% of the jobs offered whilst the app is on.  The decision suggests that, whether an individual is a worker during these interim periods will depend on the particular facts of the case and the operating model used by each organisation.

What does this mean for me?

Whether an individual is self-employed or is a worker is fundamental, as worker is entitled to various employment-related benefits such as paid holidays, rest breaks, the national minimum/living wage, auto-enrolled to a qualifying pension scheme, and not to be detrimentally treated for whistleblowing.

This Judgment is very clear, what a Company says in their documents will not determine the status of an individual and in fact the starting point is the reality of that working arrangements.  An Employment Tribunal will look at what you do, the rules and requirements you impose, and the arrangements you have in place, these are some key attributes that will determine the status of your workers / contractors.

If you are at all concerned about the status of those you engage, you should take advice on the reality of the entire relationship.

Employer Right to Work Checks
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Administrative worker wins £75,300 over desk move disagreement

An employer found out that making mistakes when dealing with reasonable adjustments can mean you end up with some very costly consequences!

In Bannister v The Commissioners for Her Majesty’s Revenue and Customs, the employee was asked to move desk from one floor to another because her team was being disbanded.  She told one of her managers that she was an alcoholic and that due to her condition, she could not move desks.  Following a conversation with a manager, the manager noted that the employee apologised that she had turned a small change like a desk move into a big issue.  An Occupational Health Adviser informed the employer that the employee had suffered from depression for about three years and had become anxious when asked to move desk, but said that she was fit to work.  They continued that the employee ‘remains vulnerable to further episodes of this condition, the frequency or severity of which cannot be predicted’ and that her ‘condition is likely to be considered as disabilities because they have lasted for longer than 12 months and would have a significant impact on normal daily activities without the benefit of treatment’.

The employee was issued a first written warning for poor attendance.  After several Fit Notes stating she was not fit to work because of alcohol dependency, anxiety and depression and meetings with management, the employee was told she would be moving.  The employee complained and was told by a senior manager ‘in fairness, he was not aware of issues around previous moves and, to be honest, he had no interest’.

In another letter by an Occupational Health Adviser, the employer was told that the employee was ‘keen to return to work, however she needs to go back to where she was with her desk prior to the absence and that after a few days settling in she will be able to manage in work’.  The employee’s request to return to work with her old team for a short period of time before moving to her new team was declined.  She was dismissed and subsequently appealed the decision to dismiss her and the decision to not be awarded compensation, but both appeals failed.

The Tribunal found that the employee required the ‘security of an established routine at the workplace and that any change posed a threat which unsettled her’.  She was scared of drawing any attention to her and gave a number of examples of how she reacted to stressful situations, for example, she would not board a busy bus or join a queue with more than three people in the supermarket.

It was clear in the Tribunal’s view that this requirement to work on a different floor caused a ‘serious unsettling effect’ on the employee and put her at a substantial disadvantage when compared to people who were not disabled.  She wanted to return to work and would have done so but for this requirement to move desk and change floors.

The Tribunal noted that the employer had offered several adjustments including a phased return to work, a temporary reduction in hours, the elimination of performance targets and a lighter workload. However, they concluded that they had failed to make a reasonable adjustment by not allowing the employee to return to her original desk for two weeks.

She was awarded nearly £75,300 in compensation.

There is a legal duty under the Equality Act to make reasonable adjustments for disabled employees when they are placed at a substantial disadvantage by:

  • an employer’s provision, criterion or practice or
  • a physical feature of the employer’s premises or
  • an employer’s failure to provide an auxiliary aid.

Some examples of reasonable adjustments include:

  • adjusting the recruitment process,
  • changing equipment,
  • allowing a disabled person to make a phased return to work
  • making physical changes to the workplace.

For a worker to be considered disabled under the Equality Act, they must show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.  A person will meet the disability definition under the Act if they have an HIV infection, cancer or multiple sclerosis, but someone who has alcohol dependency will not fall within under this definition.

As this case proves failing to make reasonable adjustments can be costly so it’s important to understand what the law requires and how to minimise any risks to your business.  At Solve. we can advise and support with disability cases.

hospitality and human resources

The Importance of HR Support in SME’s

 

It is startling to read how many SME’s in the UK who don’t have HR support.  There can be many reasons for the lack of HR support, such as budget constraints.  SME’s mostly work on a tight budget and focus more on growth and scale of the business versus people and culture related issues. Many SME owners feel that their teams are too small and they can manage their HR activities adequately themselves.

Employers are not being properly educated about the disadvantages they face because of a lack of engagement with HR.

Most businesses – no matter how small – will have specialist support to manage finance, IT and operations, but, don’t realise the benefit of bringing in HR when it comes to the management of their (usually) most valuable asset – their people.

Common issues we are often asked to help employers resolve:

1.     Poor pre-recruitment screening, with promotion decisions based on length of service, not quality of skills, often leading to poor retention rates of the right people who become frustrated working with people in the wrong roles.

2.     People are moved to new roles because they’ve been with the business a long time, not because they have the right skills and experience to succeed in their new role.  This leads to informal conversations with no documentation used to measure performance accurately.

3.     Lack of training and coaching given.

4.     “Warnings” issued on the spot with no documentation to support decisions, and no formal procedures being followed.

5.     No formal policies and procedures in place meaning there is no protection for the manager, the employee or the business.

6.     Absence is not managed, documented or controlled with no return-to-work interviews in place, which often leads to unhappy employees who are picking up the workload of absent colleagues.

7.     Employees unhappy with the way they are managed but feel the culture of the organisation is one that there is no-one to listen to their complaints, or no process for them to lodge a complaint.

8.     No contracts of employment or job descriptions, leading to confusion over terms and conditions and job roles and responsibilities.

Having HR support in your business can mitigate these risks and many others.  As you get in place contracts of employment (which are essential for you to comply with legislation) and structure your policies and procedures with clear standards for managing both good and bad performance, this helps builds engagement and trust.

Well laid out HR practices, these help to remove ambiguities employees may have related to their job role in the business and can help improve employees’ motivation, improve Line Managers skillset in managing people, business efficiency and reduce attrition.

There are many ways to engage with us to ensure your HR support is affordable, the argument that HR is a luxury to SME’s should be revisited before you face the financial consequences of leaving it too late.

HR Masterclass seminar

Free HR Masterclass Seminar

HR Masterclass seminar

Join us on Thursday 9th November at Livingston Football Club for a free HR masterclass seminar including how to prepare your business for the introduction of General Data Protection Regulation (GDPR) coming into force from May 2018 plus an opportunity to network with local businesses.

We have also teamed up with the guys at The Logic so they can give you some overall guidance on overarching requirements on the protection of your data.

The Masterclass will cover both IT and data security, risk assessment completion and the requirements on processing HR and employee data. There will be lots of hints and tips for you to take away and implement and you will leave with clarity on your obligations and be comfortable on any changes you need to make. We promise no scare mongering!

There will also be an opportunity the opportunity to have one to one sessions with IT and HR experts.

When: Thursday 9th November

Time: 9am for 9.30am start until 11.30 (teas and coffees provided)

Where: Livingston Football Club (plenty of parking)- Meadow Bank Suite

Please feel free to share with colleagues and fellow business associates who you think might be interested.

In addition to this, Solve are offering a free Contract of Employment document review consultation.

 

To reserve your place please complete the form below:

  • Please select if you have a preferred date for a Free Contract of Employment review consultation.
HR consulting services

10 things to consider when choosing a HR supplier

HR consulting services

As an HR and Employment Law Consultancy, we’re often asked to speak with prospective Clients who are ‘beauty parading’ a number of HR consultancies before deciding on the right one for them.  Often, what happens though is much like when you love all the things on a restaurant menu or try too many beautiful fragrances in a local department store – they can’t decide!

They see that there are differences – style and approach to managing HR dilemmas, culture fit with their business or even just plain old fashioned price, but most of the time, the consultancies offerings merge into one and they just can’t determine what consultancy would best meet their needs.  Sound familiar?

If you are scratching your head trying to decide what provider is right for you, we’re here to help!  Here are our top ten things to consider when choosing and using your HR supplier – no bias – promise!

  1. Know what your HR needs are

Are you a small start up business with one employee or a more established SME with a number of staff?  It’s very common in today’s fast paced marketplace that businesses can grow at a rapid rate and often, what worked for you as a start up, can quickly become out of date.  Therefore, when choosing your HR supplier, you need to be really clear on what your HR needs are today and what they are likely to be tomorrow and choose an HR supplier that is flexible and skilled enough to deliver both.  Do you want a call centre or IT solution that you can contact/use 24/7 or do you want a face to face solution?  Do you want to be sent templates to complete or letters prepared for you and ready to send?  Do you want only the Directors of the business to liaise with your HR supplier or do you have managers that require HR support also.  By establishing your current and future needs, you will be more prepared for any supplier meetings and may even be able to de select potential suppliers just by looking at their website!

 

  1. Evaluate their expertise

How many times have we gone into businesses where the owner tells us that they have the HR basics covered, contracts of employment, employee handbooks, absence management etc.  Sometimes of course this is all there and more and is a great foundation for advanced HR strategy and practice, but often, when we review these documents, they are at best ill thought out or at worst out of date legally.  This leaves the business and its Directors exposed to legal risk.  It pays to check who you are partnering with in advance – how long has the consultancy been in business?  What’s their operational structure?  Who will be dealing with your issues on a day to day basis and what are their qualifications? How often will the supplier update your paperwork and ensure that it complies with legislation?  Can they carry out small and larger scale change projects? Have they ever been to a tribunal?  These and many other questions will soon tell you about the credibility of your supplier and their expertise.

 

  1. Eye up the competition

No business owner has time to meet with every HR supplier that’s out there; however, once you have established your needs, you can quickly pick which suppliers you want to meet with.  Our advice would be to keep those meeting numbers low – maximum three potential suppliers.  Any more and your head will be swimming with choice and you will be left in the scenario of not knowing who to choose for the best.

 

  1. Establish if there’s a culture match

Now you have chosen the three suppliers you want to meet with and evaluated their expertise – it’s time to look at what kind of business they are.  What are the Directors/Business Development Manager like?  Are they aloof or down to earth?  Do they appreciate your challenges and have empathy with you?  Will they work with you as a business partner or are they simply there to get the deal?  How do they treat their staff? How long has their team been established?  Questions like these really focus the mind on how alike the supplier is in terms of culture and fit and will help you make a better choice

 

  1. What are they offering?

HR suppliers can vary in terms of what services they offer and how these are packaged for Clients.  It pays to choose a supplier who can be flexible to meet your needs.  Sometimes, before you sign up to a retained agreement, you may want to ‘try before you buy’ and work with your preferred supplier on a small piece of work to confirm that you can work together and that you are happy with their style and approach to dealing with your HR challenges.  If a supplier can’t offer you this – why not?  Retained agreements are great for both Client and supplier, however, if the supplier is the right one for you, they should work with you in a way that makes you feel the most comfortable before signing you up to any longer term commitment.  Of course you may want to commence a retained agreement immediately and that’s great.  Just make sure you are happy with all the terms of the agreement before doing so.

 

  1. What else can you do for me?

As your relationship with your HR supplier becomes more of a partnership, you may wish to use them to support other people related processes in your business.  Recruitment is a great example of this.  Recruitment can be a time and cost drain on your business and it can be a weight off your shoulders to work with a trusted partner to support you in getting it right.  However, many HR suppliers don’t offer additional services such as Recruitment either as part of their retained agreements or as a stand alone offering.  Therefore, it pays to check that your supplier offers the full spectrum of HR activities and has in house expertise in these areas that can help you when you need.

 

  1. Take up References

As you would with any new employee, we would always recommend taking professional references before committing to a supplier.  If they are as good as they say they are, then they should be able to provide at least 2-3 professional references from businesses, similar to your own, that you can speak to independently and ask any questions that you may have regarding the business as a supplier of professional HR services

 

  1. So what’s the deal?

Once you have agreed how you will work with your supplier and taken references, you need to review and agree to business terms.   As best practice, your preferred supplier should have provided you with a written proposal for the work to be undertaken, including the detailed elements of that work and any related costs.  Be sure to clarify what exactly the costs include and exclude e.g. project work and provision of third party services such as Occupational Health Consultations may be charged separately from any retained agreements.   Once you have agreed to the proposal, the supplier should follow up with a contract for services.  Any contractual agreement should be reviewed by Client and Supplier on an annual basis and should be flexible enough to be revised by both parties as required at that stage.

 

  1. Measuring Success

Your HR supplier, should, over time, be able to demonstrate how they are positively impacting on your business.  Once you commence working with your supplier, it might be a good idea to sit down and discuss with them how you will, together, ensure a return on investment.  Whether it’s reduced absence or turnover rates, increased employee satisfaction and engagement, your HR supplier should be able to establish early on how their success can be measured, should you choose to do so

 

  1. Use your HR service!

Finally, whilst you may not have HR issues arising daily, it pays to communicate actively with your supplier and discuss with them pro active HR strategies such as engagement, employee communication and involvement and so on.  Remember HR is not just about being reactive and fire fighting but getting the most from your people for business benefit.  There will always be something to do and your HR supplier should support you in finding the ‘magic dust’ that will take your business from good to great!

 

Contact Solve today to discuss your needs.

Employment Law
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FAQ’s on Employment Status

Employment Law

You may have heard the term employment status on the news at the end of October 2016 in relation to Uber drivers.  This has prompted many business owners to think about the status of the people they engage.

1.     What is Employment Status?

  • Employment status looks at the nature of the relationship between an employer and the people that work for that company / provide services to that company.
  • Employment status looks at how bound and obliged the 2 parties are to each other and defines the employment status accordingly.

 

2.     What are the key categories?

The key categories when looking at employment status are:

  • Self employed
  • Workers
  • Employees

The Uber drivers were found to be ‘workers’ and not self employed

 

3.     Why is Employment Status important ?

Employment status is important because it determines employment rights

(Self-employed have the least rights, employees have the most rights)

  • Independent contractors – the truly self-employed have very few rights in relation to their work; for example, they have no entitlement to be paid minimum wage, holiday pay or sick pay.
  • Workers have various employment rights such as the right to minimum wage, paid holiday, appropriate daily rest breaks,
  • Employees have all the employment rights that workers have but have some additional protections including (subject to length of service) the right to: bring an unfair dismissal claim; request flexible working; statutory maternity pay; redundancy pay; and to a minimum notice period.

The HMRC website has an employment status indicator that you can use to look at how the Inland Revenue view employment status with respect to the paying of taxes.

 

4.     Surely if I agree with someone that they are self-employed and they are happy with that, then that is okay

  • That might sound okay and work out okay at the start of the relationship, however if the person is truly a worker or truly an employee attaching the label of self-employed to them doesn’t make them self-employed.
  • Furthermore it is always a good idea to look at a relationship – not when things are going well – but when things are not going so well. For instance when you want to part company with the person – if they are not self-employed then parting company with them may not be as easy as it would be if they were truly self employed
  • When determining employment status a  court will look at the reality of the situation – they will look at what happens in practice
  • A court will look at the detail of the relationship with a fine tooth comb

 

5.     How do I work out what someone’s employment status is?

To work out someone’s employment status there are many different tests but here are a few key areas to look at:

  • One of the most important things to consider is ‘mutuality of obligation’ – does mutuality of obligation exist between the company and the person?  If there is mutuality of obligation then that points towards the person being an employee. If there is a lack of mutuality of obligation then that points towards the employment relationship being looser and therefore the person could very well be a worker or self-employed.
  • It is worth looking at control also. How much control do you have over the person?
  • In the Uber case the court looked at the amount of control the employer had over the drivers. The court looked at the substance of the relationship between employer and driver – not the language of the documentation issued to the drivers – again just because you call someone self-employed does not make them so
  • The Uber situation isn’t new law – it was a case of applying old law to a set of modern circumstances.

 

6.      So once I have worked out employment status for each person then I don’t need to bother checking it again?

  • That is a very good question.   It is worth being aware that some employment relationships develop over time and can mutate/change into something different. For instance – someone may start off as a casual worker but over time there becomes a mutuality of obligation that makes them move from being a casual worker to actually being an employee.

For more information and advice please visit out Employment Law section or simply Contact us