Step 6: How Do I Communicate A Fair Dismissal? | Employment Lawyer In Your Pocket

blackadders logoEpisode 6: Simon and Jack discuss the essential steps to communicate a fair dismissal. What should you say and what shouldn’t you say? How to say it and when? Can you do a Lord Sugar? Listen to find our more on how to navigate the pitfalls.

 

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail.

You can also download this podcast free on iTunes.

You can listen to previous episodes in this series here:

Step 5: What Is The Role Of HR In A Formal Meeting?
Step 4: How To Conduct A Disciplinary Meeting

Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerAndy

 

Step 5: What Is The Role Of HR In A Formal Meeting? | Employment Lawyer In Your Pocket

blackadders logoEpisode 5: Simon and Andy discuss the role of HR during a disciplinary meeting and the extent of the support they can provide to the person chairing the meeting. Who is the decision maker? What information can HR provide? And who needs to take responsibility for the name of Simon’s dog…?

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail.

You can also download this podcast free on iTunes.

You can listen to previous episodes in this series here:

Step 4: How To Conduct A Disciplinary Meeting
Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerAndy

Self-employed, Employee or Worker? Another “plunge” into the legal issues around worker status

The Court of Appeal issued a decision last week in the case of Pimlico Plumbers & Charlie Mullins v Gary Smith. It is anticipated that this case will become the main authority on the legal issues surrounding whether a person is self-employed, employed or in the middle category of worker.

Legal status is a matter with which courts and tribunals have grappled for years. Why is it important? Well, it all boils down to legal rights. Self-employed contractors have fairly limited legal rights under employment law. Workers have more rights but not as many as employees who have the most legal protection. For example, employees have the right to minimum notice periods, statutory redundancy pay and can claim unfair dismissal after two years’ service. Workers do not have these rights, but do share some rights in common with employees such as pension auto enrolment, the right to paid annual holidays and national minimum wage (none of which are available to self-employed contractors).

Hot on the heels of a number of recent decisions involving the legal status of those working in the gig economy (Uber, CitySprint), the Pimlico Plumbers decision brings the matter of status to the fore once again. Mr Smith worked for Pimlico for a number of years. He was self-employed for tax purposes and did his own VAT returns. He penned an agreement which committed him to minimum weekly working hours, required him to wear a uniform and drive a branded van, provided that he could only use other Pimlico Plumbers to substitute work and limited his entitlement to work for other businesses.

Mr Smith raised tribunal claims and he was found not to be self-employed (as contended by the business) but a worker. A worker is someone who undertakes to “do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried out by the individual”. He was also found to be in the extended category of employee (required for discrimination claims) which includes persons employed under a contract personally to do work. He was not, however an employee in the sense of holding the full suite of legal rights.

The Master of the Rolls stated that “the case puts a spotlight on a business model under which operatives are intended to appear to the clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker”.

The relevant considerations:-

  • Mr Smith was under an obligation to provide his services personally (true self-employed persons not being under such an obligation);
  • Minimum weekly working hours (true contractors are supposed to have autonomy as to when they work);
  • There was no express unfettered right for Mr Smith to send a substitute to do the work in his place;
  • Evidence suggested that Pimlico had very tight control over Mr Smith in many aspects;
  • He had to wear their uniform and drive their van;
  • The agreement which he entered into restricted him from working as a plumber in the area for 3 months after termination with Pimlico.

The Court of Appeal reached a conclusion that the personal obligation to perform services and the degree of control exercised by Pimlico was inconsistent with their argument that Pimlico was a client of a business being run by Mr Smith.

If you are in any doubt about the legal status of those engaged by your business and want to avoid a “drain” on your legal resources, take advice from Blackadders Employment Team.

If this case proves at least one thing, this important legal principle is not just water under the fridge”.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Step 4: How To Conduct A Disciplinary Meeting | Employment Lawyer In Your Pocket

blackadders logoEpisode 4: Simon and Jack discuss how to conduct a disciplinary meeting.  Do you know what to say?  Do you understand the role of the companion?  What should you do about any witnesses to the allegations of misconduct or bad behaviour?  Forget Lord of the Rings.

This episode is entitled Lord of the Fi-Rings.

You can click here to access the previous episode of this podcast series “How To Prepare For A Disciplinary Meeting”. 

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

I’ve just settled all my lawsuits…Or have I?

A word of caution about the wording of settlement agreements can be taken from the recent case of DWP v Brindley.  All too often, parties to an employment tribunal claim will expend a significant amount of time and effort during any negotiations surrounding the case.  If settlement is ultimately agreed, parties can breathe a deep sigh of relief knowing that they avoid the uncertain and costly realm of the employment tribunal.  However, in that moment of relief when settlement is verbally agreed, it is important to keep an eye on the ball when documenting the settlement terms.  Think about the settlement wording and the issues which the employer is seeking to cover within the settlement.

Usually, any employment tribunal settled with the assistance of ACAS will require a COT3 (a form of settlement agreement) to be issued.  This will be drafted and adjusted by the parties and then ultimately issued by ACAS in a final form for signature.

In Brindley, this is exactly what happened.  The claimant’s case was settled by COT3 Agreement.  The COT3 was drafted and signed.  The case alleged discrimination due to an absence related final written warning.  Shortly before the COT3 was signed, the claimant employee (who was still employed by the employer against whom the claim was brought) was given a second final written warning concerning absence.  The claimant raised a further tribunal claim arising out of the second final written warning which was given before the COT3 was signed to settle the first tribunal claim.  The employer sought to have the second claim struck out on the basis that it was covered by the terms of the COT3.

The Employment Appeal Tribunal disagreed and allowed the claimant to proceed with the second claim.  The COT3 covered all claims included within the original tribunal case along with all other relevant claims arising from the facts of the proceedings up to the date of the agreement.  The wording of the COT3 was not wide enough to cover any claims arising from the second warning which was a new circumstance.  The second warning did not form part of the “facts of the proceedings” of the first case and was thus outwith the scope of those claims covered by the settlement.  Had the settlement agreement covered “all matters arising from the claimant’s employment” up to the date of the COT3, the second claim might well have been barred.

This serves as a useful reminder to take advice when documenting any settlements and to use wording which is sufficiently wide to cover all claims arising out of employment (not just the specific circumstances of the claim which is being settled).   If in doubt, call Blackadders’ employment team.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Step 3: How to Prepare For A Disciplinary Meeting | Employment Lawyer in Your Pocket

Episode 3: Simon and Andy discuss how to prepare for a disciplinary meeting, addressing who should chair the meeting, the timescales recommended for such a meeting and the content of the letter inviting the employee in the meeting.

Oh, and it also happens to be National Cake Day…

You can click here to access the previous episode of this podcast series “Step 2: How to Conduct an Investigation at Work”. 

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

Step 2: How to Conduct an Investigation at Work | Employment Lawyer in Your Pocket

Employment Lawyer in Your Pocket is a podcast delivered by Blackadders award winning Employment Law team which will provide practical employment law advice to HR managers and business owners. In their first series, the team will discuss the steps which a manager must take when looking to conduct a fair dismissal.

Episode 2: Simon and Jack discuss how to conduct an investigation meeting at work.  What steps should you take before conducting an investigation meeting? Who should conduct the investigation meeting?  When it is appropriate to suspend an employee?

You can click here to access the previous episode of this podcast series “Step 1: Where Do I Start When Managing Employees?”

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

Step 1: Where Do I Start When Managing Employees? | Employment Lawyer in Your Pocket

Employment Lawyer in Your Pocket is a podcast delivered by Blackadders award winning Employment Law team which will provide practical employment law advice to HR managers and business owners. In their first series, the team will discuss the steps which a manager must take when looking to conduct a fair dismissal.

Episode 1: Simon and Andrew discuss the first steps a manager or employer should take before taking formal disciplinary action.  Why does it matter for a business to get the correct procedure?  Is it a performance issue?  Is it improper behaviour?  It is gross misconduct?  Is it conduct or is it capability?

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

Assault after office Christmas party in Hilton lobby Employer NOT vicariously liable

It’s that time of year again where office Christmas parties are high on the agenda.  A chance to have some festive bants with your colleagues, enjoy a few/a bucket load of drinks, strangle a cat on the karaoke, throw some shapes on the dance floor… and in the case of some employees, take things too far.

Lawyers frequently advise on the legal issues associated with workplace events and parties.  In particular:-

  • Office parties will potentially be considered as an extension of the workplace;
  • Any unlawful acts committed by employees at such events could be “within the course of employment”
  • Employers are liable (vicariously) for any unlawful acts carried out by employees within the course of their employment
  • This means that where employee A wrongs employee B at such an event, employee B can sue either employee A or the employer.
  • Employers are well advised to take all reasonable steps to ensure that staff know the expected standards of behaviour at such events (cue that annual all staff email from HR reminding us all to have fun, but not too much fun).

A timely decision was issued by the High Court this month in the case of Bellman v Northamton Recruitment Limited [2016].  In this case, the claimant (Mr Bellman) was employed by the company.  After their annual Christmas party (to which staff and partners were invited), approximately half of the party moved on to a hotel and continued drinking until the small hours.  This was not a pre-planned extension to the party.  In the lobby of the Hilton Hotel, Mr Major, managing director of the company, punched Mr Bellman twice in the head (bizarrely, the two men had been childhood friends).  Mr Bellman fell and struck his head on a marble floor resulting in brain damage.  Mr Bellman, who is unlikely to return to paid employment, sued the company on the basis that the company had deeper pockets than Mr Major (or rather their insurers had deeper pockets).

The issue for the court was whether, when the punches were thrown, Mr Major was acting within the course of his employment.  The court decided that the assault was not within the course of employment.  Why?

  • The assault was committed after and not during the organised work event.
  • The visit to the Hilton was an “impromptu drink” – many employees went home after the party finished.
  • The judge held that this was not to be regarded as a seamless extension of the party.
  • Those who went to the Hilton were on a voluntary, alcohol fuelled “frolic” of their own.

This decision will be welcomed by employers in that it offers some guidance in relation to where we draw the line with the concept of “within the course of employment”.

However, cases are always fact sensitive and this case should not detract from the usual warning that employers can be liable for alcohol fuelled antics at work related social events.  See my colleague Simon’s wise words here –  https://www.linkedin.com/pulse/christmas-cracker-youll-wish-you-never-pulled-why-i-hate-allison?trk=prof-post

Jack Boyle
Associate Solicitor
@EmpLawyerJack
www.blackadders.co.uk

5 “Uber” important differences between a worker and self-employed contractor

Intro

Many of you will have heard that last week an employment tribunal ruled that two Uber taxi drivers were declared to be workers rather than self-employed contractors. With 40,000 Uber drivers now operating in the UK, this was a much anticipated decision around the country. But why?

What is a worker?

The difference between a worker and an employee is often confusing. All employees are workers, but not all workers are employees. An employee is subject to an employment contract which requires an employee to work, but also requires an employer to find that employee work. A worker is subject to a contract that requires them to work, however the business is not necessarily obliged to find them work. Take for example a zero-hours contract. Someone under a zero-hours contract would be a worker, but not an employee. The worker is obliged to work when asked to, but the business is not obliged to provide that work if it is not there. The difference between the two status can have serious consequences on the rights of the individual.

How does this compare with a self-employed contractor?

There is a third possible employment status, a self-employed contractor. A self-employed contractor will often be subject to an agreement, but this will require a job to be done, as opposed to offering hours of work. The way in which contractors carry out jobs, and the tools they use to do them, will be entirely up to the contractors. A self-employed contractor will be paid per job, as opposed to being paid monthly. They are not entitled to the same protection as workers.

Why is the status important?

It is easy to see how the boundaries between each status can be a minefield for employers and employment lawyers. It is not as simple as looking at the contract or agreement. Many contractual terms can be implied from how the contract is carried out, just to complicate matters further. The fact that Uber drivers were declared to be ‘workers’ entitles them to a number of rights to which they were not previously entitled.

What are the 5 key differences in how each is treated?

  1. A worker is entitled to receive paid annual leave. A contractor is not.
  1. A worker is entitled to rest breaks. A contractor is responsible for achieving their goal in the agreed time period.
  1. A worker is entitled to national minimum wage for the hours he or she works. Again, a contractor is paid the agreed price for the agreed work.
  1. A worker is protected by discrimination in the workplace and can raise an action in the employment tribunal. A contractor may raise a claim for harassment in the civil courts, but not in an employment tribunal.
  1. A worker is entitled to be auto-enrolled into the company pension scheme. A contractor is not.

Conclusion

It is clear therefor that a worker receives substantially greater protection in the workplace than someone who is self-employed. This is why the Uber drivers wanted to contest their status in the employment tribunal. What is also clear from the case is that the boundaries between the two are often blurred by a number of different circumstances. If you are unsure about the employment status of the people in your workplace it would be sensible to seek clarification from an employment solicitor.

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk