Employment Status – How to Distinguish Between Employed and Self Employed

The recent case of Stringfellow Restaurants Ltd v Quashie has highlighted the importance of distinguishing between employed and self employed workers.

Quashie worked as a lap dancer for Stringfellows and took them to an employment tribunal claiming unfair dismissal.  She alleged that she had the right to do so because she was an employee.  Although the tribunal found in her favour the case was overturned by the EAT who found that because she took the risk in terms of receiving payment from Stringfellows she did not have a contract of service.
When employing staff it is important to provide the right contractual paperwork which is reflected in how workers are used and given work.
With a contract of service the employer has a great deal of influence  over the worker in terms of the hours they work, where they work and how they do it.  The employer provides the equipment they use.  The worker has to do the work themselves for which they are provided with a salary as detailed in a wage slip.  In return the worker receives employment rights that they may challenge in an employment tribunal if unfairly treated depending on the situation and their length of service. 
A self employed worker is usually provided with a contract for service.  With this there is no obligation for the company to use their services.  The self employed worker should have the choice of where to work, which may be at their own premises or those of the company and should use their own equipment.  In no way should they be integrated into the company.  With the agreement of the company they should have the ability to choose the hours/days they work and may provide a substitute.  To receive payment they should invoice the company and manage their own tax and national insurance contributions liaising with HMRC.  They take the risk of whether they get paid or not,  chasing non-payment through the small claims court.  Furthermore they should obtain appropriate insurance such as professional liability and/or public liability.  They should be able to work for a number of companies without restriction. 

 

How to Defend a Case of Vicarious Liability

Employers should not turn a blind eye to allegations of harassment.  They should be investigated fully as quickly as possible and dealt with appropriately and fairly.    In cases of sexual or racial harassment that are taken to an employment tribunal an employer may have to defend an allegation of vicarious liability.  Vicarious liability refers to a situation where an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment or work related duties.  

Employers can be liable for a range of actions committed by their employees in the course of their employment – these can include bullying and harassment, violent or discriminatory acts or even libel and breach of copyright. It’s also possible to take action against an employer for the behaviour of third parties, such as clients and customers, provided these parties are deemed to be under the control of the employer.
The key question of any case of vicarious liability is whether the employee was acting in a personal capacity what has been termed “a frolic of their own”, or in the course of their employment. This can often be difficult to determine. Furthermore, an employer’s liability does not end once the employee leaves the organisation – as the law stands, action can still be taken against an employer even though the person in question no longer works for them.
In determining vicarious liability previous case law has considered the test to be applied to determine if employers were at fault.
In Lister v Helsey Hall Limited (2001) concerned the sexual abuse by a warden of a school boarding house on a pupil. The question and the test applied in this case was where the warden’s  action in abusing the pupil was so closely connected with employment would it be fair and just to hold his employers liable. 

The court found that the company which owned and ran the school was responsible for the wardens conduct as the wardens responsibilities included the welfare and safety of his charged. It was considered that vicarious liability would not have attached to other employees for example the gardener whose job would have no connection with the welfare of the pupils. 
In the application of this close connection test, Mattis v Pollock (trading as Flamingos Nightclubs) 2003provides additional guidance as to how this would be applied. Mattis was a doorman who returned in his working hours to stab a victim as an act of revenge.  The court had to determine whether the action of the employee was so closely connected with what was authorised or expected of the employee whether it would be fair and just to hold the employer to be vicariously liable.  It determined that the employer was vicariously liable as it expected the doorman to burly and act aggressively in his role.  

The test to be applied when looking at the actions of employees who have committed negligent acts at work is whether the tort was so closely connected with what was authorised or expected of the employee that it would be fair and just to hold the employer liable.  
The case of JGE v English Province of Our Lady of Charity and Trustees of the Portsmouth Roman Catholic Diocesan Trust (2011)  provides yet further questions that the court should take into account:
— the nature and purpose of the relationship;

— whether tools, equipment, uniform or premises were provided to assist the performance of the role;

— the extent  to which one party had been authorised or empowered to act  on behalf of the other;

— the extent to which the employee may reasonably be perceived as acting on behalf of the employer;

To defend an allegation of vicarious liability an employer needs to show that they have taken all reasonable steps to ensure the prevention of such acts or omissions therefore providing a statutory defence.

Employers may do so by having in place an up to date equal opportunities policy, a code of conduct, a bullying and harassment policy, written guidance for managers on harassment and discrimination and to have implemented training on the subjects.  Policies should be clearly communicated and fairly and consistently operated.
New starters should be made firmly aware of the company policies and should undergo equal opportunities and anti discrimination/harassment training as part of induction. Existing employees should occasionally go on refresher training.  Written records of these actions should be retained on file eg training records and new starters sign a form to show they have read the employee handbook.
This will demonstrate an active commitment on the part of the employer and would reduce the likelihood of an employer being held vicariously liable for any discriminatory acts committed by its employees.


 

New Year’s Resolutions – How to Set Your Personal Goals

So another year has passed and once again we are looking forward to another year.  Traditionally most of us set New Year’s resolutions, which is all about setting personal goals.
 
This is not a new phenomeon.  The ancient Babylonians made promises to their gods at the start of a new year.  The Romans made promises to their god, Janus, after whom the month of January is named.   In the Medieval era the knights took the “peacock vow” at the end of the Christmas season to reaffirm their commitment to chivalry. 
However, in the modern age we set lots of different personal goals with the aim of becoming a better person – to get along better with people, to quit smoking, stop biting nails, to lose weight, take more exercise, eat better, drink less alcohol, improve our career, get another job, manage our time better, be less stressed, etc.
Whatever personal goals we set ourselves, ideally, they should be SMART which stands for specific, measureable, achievable, realistic and timed.   They can be related to your work or your personal life or both. 
It is important to be specific about a personal goal because then you understand exactly what you need to do.  Ask yourself question such as who, what, when, where, how and why  The goal should be measureable so that ultimately you can see whether you have achieved what you set out to do eg if you lose a few pounds after setting a goal to lose weight you know you will have achieved what you set out to do. 
A personal goal should be achievable.  There’s no point setting a goal about taking a trip to the moon when you know you are never ever going to achieve that so it needs to something that you can accomplish, however, don’t make it too easy.  There is pride in achieving something that has been a challenge to you.    
Likewise a realistic goal needs to be one that you are willing to work towards, which means commitment. 
Finally a goal needs to be time bound so you set parameters in terms of a timescale by which you wish to achieve your goal.  By setting a deadline hopefully it will give you something to work towards rather than put it off.
Having set your personal objectives you need to write them down.  Research has shown that if goals are written down they are more likely to be achieved.  Write a to do list, put a note in your diary or put up a post it note on the wall.   Conjure up a powerful image of you actually achieving your goal – you are more likely to achieve it. 
Monitor and review your progress, it may help to rejuvenate your enthusiasm which might wane as the days, weeks and months go by.  Create a routine and stick to it. 
Research has shown that 88% of those people who set New Year’s resolutions fail.  However, men were more likely to achieve their goal by taking small steps to achieve that goal, whereas women are best harnessing public support from their friends. 
If you share your goals with others who are looking to achieve the same thing or gaining peer support it can make a huge difference to the success rate.

 

Bad Santas – Highlighting the Rehabilitation of Offenders

The recently screened Channel 4 programme “Bad Santas” has highlighted the issue of employing ex-offenders with a tongue in cheek seasonal focus.  The four ex-offenders  were trained in Santa School to  become Santas so that they could become employed and begin to earn a wage.   They had all been CRB checked and deemed fit to work with children, having records for bank robbing, burglary and grievous bodily harm.

Some employers see giving a job to an ex-offender carries some risk because they consider they lack essential skills of honesty, reliability and personal behaviour.  They are worried about safety for their staff and customers and damage to their reputation.  However, this stereo-typing and prejudice marginalises a significant portion of the working population who have a great deal to offer to the workplace.  However, according to the CIPD these fears are often unfounded.  By giving an ex-offender a job, an employer, may be giving someone their life back.  They can have pride for a job well done and earn enough to live their life  independently.  Furthermore they are less likely to re-offend.  For employers there is a talent pool to tap into, skills shortages can be reduced and effective performance achieved.   
CIPD research shows that many employers do not ask for details of unspent convictions.    The Rehabilitation of Offenders Act 1974 enables criminal convictions to be ignored after a rehabilitation period.  It ensures that people do not have a lifelong blemish on their working life for a minor offence in the past.  The rehabilitation period is determined by the sentence and starts with the date of the conviction.  After the period if there has been no further conviction, the conviction  is spent albeit with certain exceptions.  It need not be disclosed by the ex-offender when applying for a job.  Furthermore employees have protection against dismissal or exclusion from employment.  Employers can not show prejudice against a person because of a spent conviction.   However, if an employee fails to disclose an unspent conviction that an employer finds out about subsequently they may dismiss albeit following a fair procedure. 
For adults, the rehabilitation period is five years for most non-custodial sentences, seven years for prison sentences of up to 6 months, and ten years for prison sentences of between six months and 2½ years. For a young offender (under 18) the rehabilitation period is generally half that for adults. Currently other sentences have variable rehabilitation periods. There are some exceptions to the Act, broadly relating to work with children, the sick, disabled people and the administration of justice.
A prison sentence of more than 2½ years can never be spent, however, the government is currently looking at this time frame for unspent convictions.  The Government’s proposals are that instead of the time period for determining when a conviction is spent commencing from the conviction date, it will start from when the offender completes his sentence. Furthermore, rehabilitation periods will be shorter. Thus the conviction of an offender who is imprisoned for between 6- 30 months will be spent four years after the sentence itself is completed. It is also proposed that the only conviction never to be spent will be one resulting in a custodial sentence of four years or more. Where an offender receives a custodial sentence of between 30 months and four years, that conviction will be spent seven years from the end of the sentence.
According to CIPD research most employers recruit offenders who have been released from prison for two years and who no longer have a supervision order with the Probation Service.  Most employers would only take on an ex-offender whose conviction is fully spent. 
There is therefore work to be done to encourage employers to take on ex-offenders earlier to ensure the risk of re-offending is reduced as research shows that an offender without a job to go to on leaving prison is twice as likely to re-offend.   60,000 offenders leave prison every year with two thirds re-offending within two years.  In 2005 the Ministry of Justice set up the Corporate Alliance in order to engage employers with the issue of employing ex-offenders.  100 employers participate with a view to providing training and employment of ex-offenders. However, the government needs to do more to ensure employers have more guidance on this very important issue.

Redundancy Consultation Changes on the Way

The Government has confirmed its intention to change the way employers consult workforce representatives during large-scale redundancies, including by reducing the 90 day consultation period to 45 days. The changes will come into force in April 2013.
Some employers will welcome this as usually consultation is completed well within the 90 days with the current law preventing the business from re-structuring sooner. The TUC however had said the government is making it easier to sack people.
Currently, an employer is required to inform and consult with trade union or other elected employee representatives where it is proposing to make 20 or more employees at one establishment redundant within a period of 90 days or less. Consultation must begin no later than 30 days, where between 20 and 99 redundancies are proposed, or 90 days, where 100 or more redundancies are proposed, before the first dismissal takes effect.
Fixed-term contracts will be excluded from collective redundancy consultation.  Fixed term contracts and their expiry cause particular problems for the education sector, and mean that many education institutions engage in rolling consultation processes in order to comply with the current consultation obligations. This step is intended to alleviate those problems.
ACAS will produce non-statutory guidance to address key contentious issues in the consultation process.
Employers have the legal obligation to begin consultation “in good time” and to ensure it is meaningful. 

Growth In Older Worker Employment

Recent statistics have shown that there has been a huge rise in the number of people aged over 50 becoming employed.  The fastest rate of increase is with those people aged 65 (older women in particular) with almost one million people in that age bracket in the working population.  The rise in “oldies” employment accounts for 20% of the increase.  However the growth in employment of the older worker is not the detriment of younger workers.  Currently 30 % of older workers work in managerial and professional jobs with only 14 % in sales, care and leisure jobs; this is in complete contrast to younger people where 34% work in that sector and only 9% in managerial and professional jobs.   Older people provide effective role models to the young who can gain from their valuable knowledge.

There may be several reasons why older people are working longer.  In some cases employers want to retain their valuable skills and experience sometimes offering flexible working patterns.  For some older workers their pension may be inadequate, they fear the rising cost of living or they feel fit and healthy and willing to remain the workplace.  There is also a growing group of self-employed who want to remain connected to the business world.   Being employed means older workers have better standards of living which they would lose if they gave up employment. 

In 2011 the default retirement age was abolished, therefore, people can work longer and not be compulsorily retired.  An employer can only force someone to retire with objective justification. 

At the moment men can take their state pension from the age of 65, for women it may vary between 60 and 65.  However with the rising cost of pensions and life expectancy the government is planning to raise the age of retirement to 66 in 2020 for both men and women and to 67 in 2026. 

Tis the Season To Be Jolly – Employers Beware

Christmas music has been played on the radio and in the shops for a number of weeks now whichcan only mean one thing – the Christmas season is fast approaching along with the anticipation of the associated festivities.  Many companies like to put on a Christmas party for their hard working staff, but with that there comes responsibilities on both sides.christmas_party
Christmas parties generally have a positive impact on moral and team spirit and it an opportunity for an employer to thank employees for all their hard work. However the boundaries need to be set by the employer to avoid any future problems. UK legislation is clear, the office party is an extension of the normal work environment if is held at a separate venue or outside of working hours. Employers can be held responsible for employee actions so need to avoid discrimination and health and safety claims so need to have procedures in place.
Companies need to make sure they make it clear to staff what is and what is not acceptable behaviour at social events and follow up any failure to comply with this order with disciplinary action.
Employers may be liable for the discriminatory behaviour of their employees and ultimately face significant tribunal claims if they are found vicariously liable. Employees can be disciplined for any breaches of disciplinary rules, including dismissal for gross misconduct, following unacceptable behaviour at the Christmas party. Therefore, having clear HR procedures in place that are well communicated with training provided are essential.
Companies need to ensure managers are careful not to let their guard down being sociable or allowing alcohol to loosen their tongue and discussing issues such as promotions or pay rises in the informal setting of the Christmas party.
It is important to carry out a risk assessment of the Christmas party venue, considering any particular risks posed to any disabled employees.
It might be a good idea to limit the free bar, if one is planned and, in any case, encourage responsible drinking.  Companies may be liable for the welfare of employees if they suffer alcohol-induced accidents. Consider organising transport home with designated non-drinkers as drivers or paid for coaches/mini buses.
If there is a ‘Secret Santa’ taking place, make sure staff know the boundaries confirming that racist or adult gifts, which might offend, are not acceptable.
A decision needs to be taken to what extent employers will be lenient with staff on the day after the party, if it is a working day, provide clear information on employee requirements beforehand. Health and safety should be of utmost importance. Employees should not be expected to operate machinery if not fit to do so. Also the safety of employees driving to work after having had transport home the night before should be considered.
Take these reasonable steps to prevent inappropriate behaviour then employees must take their own responsibility for their actions.
In any case it might be a good idea to produce guidelines for employee behaviour at the company party.

I’m Pregnant! What Employers Need to Know

I have recently been contacted by several women who feel they have been unfairly treated by their employers because of pregnancy and maternity issues.  It seems that this is an area of employment law that many employers fall foul of possibly unintentionally. 
Pregnant employees or those on maternity leave have many key rights in accordance with employment law.   This includes:
up to 52 weeks maternity leave regardless of length of service (26 weeks ordinary maternity leave + additional maternity leave)
statutory maternity pay (or maternity allowance if length of service is not sufficient)
receipt of full benefits during maternity leave
paid time off for ante natal classes
not to be dismissed for pregnancy or maternity-related reasons, to be offered suitable alternative role in redundancy situations in preference to other employees
protection from discrimination
the right to return to the same job after a period of ordinary maternity leave on the same terms and conditions.  
The latter may be more difficult returning after additional maternity leave but any alternative role should be a reasonable equivalent on the same terms and with the same status.  
Ideally when a female employee announces they are pregnant, a risk assessment should be done particularly if their work could place them and their unborn child at risk eg carrying heavy loads, working in dangerous conditions.
Pregnant employees are required to give their MAT B1 to their employers which they receive at 26 weeks pregnancy.  This indicates the possible expected date of delivery allowing both parties to plan ahead.  The employee can go off on maternity leave at any time from the 11thweek before the expected week of confinement.  They could even work right up to date of delivery although that is not advisable.  Maternity leave can start on any day of the week.  Whilst on maternity leave the legislation allows for up to ten keeping in touch days where the employee can come into work.  This is ideal for training purposes or to remain in touch with key developments in their job.
 
Whilst on maternity leave they accrue holidays which can be taken after their maternity pay period ends and before they return to work.  
Some employers engage a fixed term worker to cover the maternity post.  The contract should be clear with regards to the purpose of the cover giving a clear termination date.  Employers should beware of preferring to keep the fixed term employee in the role over and above the returning employee.  Any such treatment could be discriminatory.  If the fixed term worker becomes pregnant during their contract they will be entitled to statutory maternity pay with sufficient continuous service and this is payable even after the contract has ended either as a lump sum or subsequent continuous payments. 
Sometimes a female employee may fall pregnant again immediately.  However the law allows for this to happen despite it being frustrating to employers.  They are still entitled to full maternity leave although maternity pay may be affected as this is calculated on previous earnings; if they are below the lower earnings limit statutory maternity pay is not payable.  Contractual maternity pay/sick pay/holiday pay/bonuses/commission will be classed as earnings.
There is a perception that it is legally dangerous to make a pregnant employee redundant.  This is not the case however provided there is a clear reason for the redundancy situation.  Employers should certainly not single out any pregnant employee or employee on maternity leave for redundancy and should beware of other possible discriminatory treatment.  A skills matrix should be used, where appropriate, applying demonstrable fair scores, consultation should be conducted according to the law and the dismissal procedure undertaken fairly and legally.  Statutory maternity pay is payable if continuous service is sufficient and the employee is identified for redundancy.  It is important to remember that employees at home on maternity leave should not be forgotten during a redundancy consultation process – it sometimes happens.    
Employers need to be seen to be treating employees who are pregnant or on maternity leave fairly.  If they fail to do so then the penalty could be huge employment tribunal compensation.


If you need advice with a maternity or pregnancy issue call Sandra Beale on 07762 771290.
www.sjbealehrconsult.co.uk

The Stained Glass Ceiling – What About Diversity?

The Church of England  has just voted against women bishops and it will be another five years before a vote can take place again. 

Equal opportunities legislation has ruled in the UK for over forty years, but apparently the internal workings of the Church of England remains untouched by this.  However the government has said it will not step in and apply equalities legislation which allows it to disbar women from the episcopate.  If the immunity was removed women could sue the Church of England for discrimination. At the moment there is no intention do so.  As it is the Church now appears out of date and out of touch.

The debate has been going on for decades. One of the major sticking points is that women bishops will require to be obeyed not just tolerated and that is seems is too much for those who just can not accept that.  Apparently the draft legislation did not provide fairness to those who do not wish to see women bishops.  Women priests were introduced twenty years ago but today the talk is of the stained glass ceiling. 
To a certain extent the decision to not allow women to climb the career ladder within the Church is reflected in the European business community where the situation with women at the top is pretty dire.  Therefore the EU has plans to allow 40% of the top jobs to be given to women. Currently men dominate company boards and board chairs are 96.8% men.  However, it will take a long time to achieve such progress within the Church of England. 

For all organisations to benefit from diversity women have to be allowed to achieve their potential in all walks of life.

What To Do With An Employee Who Has Gone AWOL

The recent media interest in Conservative MP Nadine Dorries who has apparently gone to the Australian jungle to feature in “I’m a celebrity get me out of here” without apparently obtaining parliamentary permission has brought to light the matter of what to do with an employee who has gone AWOL.

Failing to turn up to work can be deemed to be gross misconduct and following the disciplinary procedure is essential whether the employee eventually comes back to work or repeatedly fails to turn up at all.

If the employee has turned up for work an initial conversation or return to work interview will provide investigatory evidence from which should follow a disciplinary meeting to formally give the employee a chance to respond to the allegation of being absent without leave.  Without a plausible excuse a suitable warning should be delivered with the right to appeal. 

If the employee has not turned up work attempts should be made to get in touch with them to find out the reason for their absence.  Any letters should be delivered by recorded delivery. 

Now Ms Dorries has been evicted from the camp we must wait and see what treatment the government doles out to her.