I have been made aware that we have a kitchen porter that invoices the company and has been doing so for the last few months. The Head Chef has agreed with this arrangement. He says it makes no difference that he is relatively low-skilled; it is common in the industry.
There are a number of tests that collectively indicate if someone is self employed or an employee. These include the ability to substitute, control over tasks, use of equipment and materials etc., supervision, other jobs, regularity etc.
In principle it “could” be legal to engage an individual on a self employed basis to provide low level catering or waiting activities if they have their own business hiring themselves or others, out for these tasks but it’s highly unlikely in reality.
HMRC produce a very simple checklist that guides you through this, albeit an Employment Tribunal could easily come up with a different decision and the checklist is just a guide to help you decide from a tax and national insurance perspective.
It is not unusual for people to be happily self employed until something goes wrong with the working relationship. At that point they could well claim that they should have been classed as employees, or, at the very least, they should have been treated as workers, able to claim the minimum wage and paid holidays.
Courts have ruled that the intention of the parties is not the main determinant of a person’s contractual employment status, and that whether someone is employed or self employed is a question of fact for a tribunal to determine. Tribunals will look at the reality of the working situation. In this case the Kitchen Porter will have largely been controlled by the Head Chef determining the what, where, when and how the work is done. Therefore, the Porter is almost certainly an employee and you risk a hefty fine and extra attention from the HMRC if you are ‘caught’ paying him this way. Even if he is not an employee he may well be a ‘worker’ as highlighted in numerous recent court cases such as Uber, and is therefore entitled to holiday pay and possibly other benefits.
You must tell the Head Chef that the current arrangement cannot continue from an employment law or HMRC perspective. The Porter should transfer onto your payroll and if they are not happy to do so then they may decide to leave but at least you are not storing up serious problems for the future.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
One of our Regional Managers went to see one of our managers who has been off sick with cancer for 8 months. It is said that he opened the conversation with the phrase “Right Barry, I think it is time to stop playing on this cancer thing and get back to work”. His wife, who also works for us, has complained that they were both so shocked by this opening statement that they really did not take in much more. She is angry and her husband is now feeling depressed about it, when timing wise he has only one more cycle of chemotherapy and radiotherapy to go. We asked the Regional Manager who has admitted to this comment.
Approximately 90,000 people of working age receive a new cancer diagnosis every year. Millions of people in the UK under the age of 65 have been diagnosed with cancer at some point in their lives. More people are also surviving the disease and continuing or resuming their every-day lives, including their working career, as a result of continuing progress in diagnosis and treatment. This means that it is increasingly important that employers have the right policies, procedures and attitudes to provide the necessary advice and support to help employees affected by cancer from the point of diagnosis.
Your manager’s comments were at best crass and at worst insensitive and discriminatory.
Being diagnosed with cancer can be one of the most difficult situations that anyone has to face. It can cause great fear and worry, and can affect every aspect of their life, including their ability to work.
Very few organisations have a cancer policy and not many ensure that relevant staff have a good understanding of cancer and the impact of treatment on employees. Most organisations however do have policies or practices on phased return-to-work and provide a significant amount of flexibility around hours and work adjustments to employees affected by cancer. This does not require much training other than reminding people that cancer is a disability, that disability discrimination is unlawful and that stupid comments can be discriminatory.
Whilst it is tempting to put all the blame on your manager, too few employers ensure relevant staff have sufficient knowledge on how cancer affects individuals, or give them the necessary support, so the company are partially to blame too. Instead you could have conducted a cancer risk assessment with the employee and then taken appropriate action, with regular contact on an agreed basis.
There are many straightforward steps that employers can take. The simplest and easiest way you can help staff members with cancer is to keep in regular contact with the employee, and, plan their return-to-work carefully with them. Reasonable adjustments such as flexible working arrangements and a phased return-to-work can ease the transition back to work, when people are still dealing with the physical and emotional effects of cancer and its treatment.
You should quickly instruct your Regional Manager to visit again to apologise for his insensitivity and to re-assure the couple that his employer is going to do all that it can to help them (bearing in mind that the cancer affects his wife as well). It may be as well to have him accompanied by a senior colleague. After 8 months you might just have had a chance to fairly dismiss, subject to following a thorough consultation and medical assessment. This opportunity has gone and all you can do now is to be properly supportive, and thus potentially avoid a Tribunal claim, and keeping your company’s name out of the newspapers.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
We run a petrol station and as is common in the industry, we reserve the right to deduct from our staff’s pay in respect of till shortages, even when that is due to what is termed ‘bilking’ i.e. when drivers fail to pay up after filling their tanks and just drive off. We had such an incident recently and decided that the time had come to enforce our rights by deducting the cost of the lost fuel (£56.72) from their next weekly pay.
They have written to say:
“I find it hard because even if I saw someone stealing petrol, what can I do about it? I would first have to leave the till unattended and then challenge the person who won’t pay even if I managed to get to their car in time. Every time I go to work I run the risk of not getting paid and I only earn £150 per week. I think it is illegal and wrong”.
This is a common problem and inevitably a controversial one with the Petrol Retailers Association stating that docking wages is acceptable under certain circumstances. Trade unions see the practice as being ‘illegal and immoral’.
The law protects individuals from having unauthorised deductions made from their wages, including complete non-payment. This protection applies both to employees and to some self-employed workers.
The deduction will be unlawful if any of the following applies:-
- it is not required or authorised by legislation, for example, income tax or national insurance deductions;
- it was not authorised in their contract of employment, provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made;
- It was not consented to by the employee in writing before it was taken.
There are some limited exceptions where a deduction will be lawful, such as if they were previously overpaid or where they’ve taken part in a strike or industrial action.
In the retail industry or in a restaurant, employers can take up to 10% of gross wages to cover any shortfall if the deduction is made because of cash shortages or stock deficiencies. Such an employer may, however, make deductions over a course of many weeks/months, as long as they don’t take more than 10% for that pay period. If the employee leaves employment, you are then allowed to deduct the full outstanding amount from their final pay.
Workers who believe they have suffered an unlawful deduction from wages can take it up with their employer informally. If this does not sort out the matter, recourse may be made to formal internal grievance procedures. If this does not resolve the issue, then a complaint to an employment tribunal may be made. The abolition of Tribunal fees will make this option much more likely.
You appear to have over-deducted (certainly more than 10%) and do not state that you have the requisite authority as detailed above. You should deal with their letter as a grievance and seek to find an amicable resolution in this case.
In future you need to properly investigate and decide if disciplinary action is more appropriate in the circumstances, and if that does not work, then apply the above processes properly. Failure to do it properly not only opens you up to legal claims but makes it more likely that staff will leave because they feel unfairly treated.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
We have a team that performs well, but because they are on commission, rarely take their official lunch break of 45 minutes, and usually take nothing at all. When one of the team told me that he was unhappy and wanted to be able to take a short break every day, I told him that it was the choice of the team how to arrange breaks.
You don’t ask – you don’t get? Not quite when it comes to refreshment breaks. The failure to allow for rest breaks under the Working Time Regulations 1998 (“WTR”) is a ‘refusal’, even if no request has been made. Up until now, you may have been able to maintain that the responsibility has been on the employee, and it might also be characterised as ‘use it or lose it’.
This all changed last year with the case of Grange v Abellio London Ltd Employment Appeal Tribunal (EAT), which examined the scope of the right for workers to take a rest break. The case essentially asked: Is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal?
The EAT made it clear that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked. It does not matter if the employee has appeared to acquiesce to an arrangement that prevents him or her taking a break. The entitlement to rest breaks under the EU Working Time Directive is intended to be actively respected by employers, for the protection of workers and health and safety.
An employee in this position can still bring a working time claim.
Many workers in high-pressured environments and many working mums do not take rest breaks, and will not complain that the right has been denied to them. Their perception may be that it is their choice, given their heavy workload, not to take a break. However, you will not be able to use that as a defence if the employee later complains and seeks to enforce their rights. Employers may have been lulled into a false sense of security by the earlier case law, and need to be aware of the risk of claims, if they arrange working hours in a way that explicitly, or implicitly, prevents employees from taking a short break during the working day. This will be challenging in sectors where employees are often required to work long shifts, and where it is often difficult for them to take a scheduled rest break, due to the need to provide continuity of care/service.
Whilst employers will be reassured that there is no obligation to ensure that workers are taking the required rest breaks where they choose not to do so, it does mean:
- You should review working arrangements to ensure measures are in place to enable workers to take such breaks should they wish to do so.
- You must take active steps to ensure that your working time arrangements enable workers to take requisite breaks. This does not mean that you should force them to take breaks, but workers must be encouraged to take breaks. The onus is, therefore, put on employers to proactively make such arrangements, rather than employees to ask for their break entitlement.
- Set out in your Handbook, and/or employment contract, their right to unpaid rest breaks.
- Train Managers to raise the issue with employees who appear to be working long hours without a break.
- You can foster a working culture that encourages breaks.
It can be a difficult balancing act to encourage employees to take rest breaks, without forcing them to do so, but you should do something with this employee, their boss and your Manager.
We are having to cut back due to lower sales and have offered someone in the sales office an alternative job on the same pay, but quite different working hours in a different department. They have said they cannot do those hours for family reasons, do not like the sound of the job and are insisting not only on a statutory redundancy payment, but payment in lieu of notice as well. I told him that he is entitled to nothing and will get nothing. He is consulting his solicitor.
If their job no longer exists then their job is clearly redundant. Employees will lose their right to statutory redundancy pay if they unreasonably refuse a suitable alternative job offer. So this begs the question – What makes an alternative role “suitable”?
When considering whether an alternative role is suitable, an employer needs to consider the employee’s skills and experience, and the terms of the alternative job including status, location, duties, pay, hours and responsibility.
You would also need to show that the employee’s refusal was unreasonable. The employee’s specific personal situation, such as whether they have caring responsibilities and travelling distance, also need to be considered, and can mean that a job that may be a suitable alternative for one employee is not for another.
Their specific circumstances might well include:
- the circumstances in which the offer is made, e.g. the time they are given to consider it;
- whether or not the role is temporary; and
- the employee’s personal situation, e.g. the impact it would have on their commute, family responsibilities or career aspirations.
If an employee’s personal circumstances mean that it is reasonable for them to refuse a suitable alternative role, they will still be entitled to a statutory redundancy payment. The issue of whether work is suitable is to be considered separately from whether an employee is acting reasonably in rejecting it. An employee will decide if the work is suitable based upon subjective factors personal to that employee.
The likelihood is that, unless the employee’s reasons for not accepting the offer are very poor indeed; an employer would need to pay redundancy payments to avoid an Employment Tribunal hearing where the rationale will be assessed from the employee’s point of vie. All the case law has favoured employees, so the outcome of a Tribunal claim would probably make it too risky to defend.
Highlighting to an employee that they may lose their redundancy payment if they unreasonably refuse an offer of alternative employment is a useful tactic, but only if you have done everything correctly and they are just being awkward.
Employees are entitled to a trial period of four weeks in the new job, so it might be worth talking to him further i.e. redundancy consultation to see if you can find a compromise on the hours and at least give it a try.
If that does not work then be prepared to pay them a redundancy payment and, unless you are happy for them to work normally during their notice pay, you will also have to give them a payment in lieu of notice, or pay them whilst they are on garden leave.
The manner in which the redundancy process is conducted is important. Whether or not an employee’s refusal to accept suitable alternative employment is reasonable is a subjective judgment, and so the way they are treated is crucial, to whether they accept and how you are perceived. Following a planned redundancy, procedure is not a bureaucratic nightmare; it is just a sensible precaution, legally and in terms of good employee relations.
We have been recruiting catering staff and I saw a chef who was ok, but was a bit overweight and in his late 50s. I emailed his CV to my boss who emailed me back to say that “he is a bit long in the tooth for us”. Unfortunately he managed to also copy him in on the email. When that person emailed my boss back, to express his resentment, she replied that it was nothing personal, but we are quite a young and dynamic business and they would probably not fit in with the team.
Is there a way out of this?
Legally you are up a proverbial creek without a paddle. It is rare to find direct evidence of age discrimination, and the first email was probably sufficient to get you into trouble at a Tribunal, assuming this leads to an age discrimination claim. The second email just drove a further big nail into the coffin lid.
Since 1 October 2006, age discrimination legislation (now contained in the Equality Act 2010) has made it unlawful for employers to discriminate on grounds of age in the opportunities that are afforded to employees for promotion, transfer and training, and for the receipt of any other benefit in their employment. Most employment tribunal claims are from ex-employees, some are from people remaining in employment, and a few are from people denied the chance to get a job, who believe that they have been unlawfully discriminated against, as this case relates to.
Managers need to be aware of the fact that they should not discriminate when it comes to offering employment, training, or promotion, on the grounds of age. Managers and anyone involved in the recruitment process need to be aware of age discrimination legislation and be trained in and follow good recruitment practices. The process of shortlisting and interviewing is to identify individuals that have the skills to do the job without regard to their age.
The law not only makes it unlawful to discriminate on grounds of age, directly and indirectly, but also to harass anyone intentionally or unintentionally (by subjecting them to behaviour which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment), Mocking or bullying individuals because of their age, will be considered as harassment. The Manager’s actions in seeking to explain her discrimination just dug a bigger hole, which could also be seen as harassment. It is stupid to assume that people of all ages cannot get along at work or outside of work, so trying to justify this comment will just keep digging a bigger hole. Both comments indicate a negative attitude to age, which can be construed as influencing the ‘decision’ not to pursue the application.
You have three approaches you can take:
- Write to apologise profusely and hope that does the trick.
- Apologise and ask them in for a further interview. They will either get the job or at the very least give you ammunition to justify why they would not have got the job anyway.
- Contact them or ACAS to sort out a deal i.e. a Settlement Agreement or a COT3 which includes a confidentiality clause to cover your embarrassment.
I would go for option 2, but if the candidate turns out to be ‘ok’ or even “quite good but not exciting” then I would give him a second chance. If he is no good then take care to give some constructive feedback that does not relate at all to his age and is totally job specific in what he is lacking. Whatever happens organise some form of Equal Opportunities and Dignity at Work training for all of your Managers as soon as possible.
A long serving manager went on a pre-booked holiday to attend his daughter’s wedding. He had not made proper arrangements for cover so we were embarrassed by a potentially major customer service failure. A decision was taken to issue him with a written warning upon his return, in relation to the failure to arrange cover. He was handed the letter which started by saying “This is a written warning…”. He argued this warning twice, firstly in a row on the day he read the letter and again a fortnight or so later when he expressed dissatisfaction that the warning would stand. As part of his arguments, the Claimant stated he had acted in accordance with usual practice when arranging cover, and no process had been followed when issuing the warning. A week later he spoke to this boss to say he was resigning, collected his pay packet, returned his keys and left. He then sent an email to the boss, repeating his explanation about cover, complaining that he had been given a warning without any process being followed and explaining that he felt he had no choice to resign as he felt he had been constructively dismissed.
We emailed him to say, he should withdraw his resignation and attend a grievance meeting (if it was his wish to raise a grievance). Following advice, we suggested that the previous letter (the one which started “This is a written warning…”) was not intended to be a formal warning and was not part of the disciplinary process.
Are we now safe from a Tribunal claim?
The letter sounds like a written warning to me. On that basis such a penalty looks wholly disproportionate to the misconduct or performance he may have been guilty of, had a proper procedure been followed. The bigger problem is that no process has been followed at all. This failure to follow any process (either your own process or the ACAS Code) is likely to be held to be a breach of the implied term of trust and confidence, entitling him to resign in response to that breach.
It is a well established principle that a Claimant should not delay in accepting a breach and resigning in response to it. You can try to argue that his delay of 3 weeks between the warning and his resignation was too long, and so he had waived his right to accept the breach and make a claim. A Tribunal may well not accept this and find that he had not waited too long. He complained quickly about your conduct, which took you around a fortnight to respond to, and had walked out and sent an email which expressly stated he considered he had been constructively dismissed.
You might be able to get a reduction to the compensatory award, on the basis that he was guilty of some contributory conduct towards his dismissal, however he might get an uplift of up to 25% on the basis that the Club failed to comply with the ACAS Code of Practice.
A proper procedure must be followed with all disciplinary sanctions (not just dismissal) and that procedure must include a meeting and offering a right of appeal. Appeals can be used as, either a review of the original decision, or a complete rehearing, which is beneficial if there have been any flaws in the disciplinary process. This is the way you should have gone, instead of trying to simply back-track on the previous letter.
You can have several options:
- Pray that he gets another job and forgets about it, which is unlikely
- Wait for the Early Conciliation approach from ACAS and offer to settle quickly
- Approach ACAS to let them arrange conciliation and facilitate a deal
- Approach him on a without prejudice basis, to seek to arrange a Settlement Agreement
I would not rely on the first option. I would suggest seeking professional employment law advice in future as unfortunately, your actions over this matter are likely to be costly.
We caught one of our employees committing an act of gross misconduct (theft) and dismissed him properly in terms of our procedure. We have now had a Tribunal application saying that because everyone, including the Managing Director called him ‘Pikey’ we are guilty of discrimination which makes the dismissal unfair and discriminatory. We think that he is of Romany extraction. It is true that we called him this, because that is what he was happy with and indeed referred to himself as.
You are in difficulty as it is discrimination to treat someone less favourably due to having, or being perceived to have, a protected characteristic. The Equality Act 2010 says people must not be discriminated against because of their race. It is race discrimination if they are treated unfairly because of one of the following factors:
- ethnic origin
- national origin.
Some Gypsies and Travellers are protected against discrimination on the basis of their ethnic origins. The courts have said that Romany Gypsies and Irish Travellers are protected against race discrimination because they’re ethnic groups under the Equality Act.
Trying to argue the point about whether this person is really protected is likely to be a fruitless task, given that in any event they can argue that discrimination by perception is just as bad as direct ‘normal’ discrimination.
Despite being classed as ethnic groups and protected by equality legislation, discrimination against Gypsies and Travellers is so rife across the UK that some feel they have to hide their ethnicity when applying for jobs according to a 2016 report by the Equality and Human Rights Commission (EHRC).
Even though you may have dismissed him fairly, he is entitled to argue that the discrimination so tainted the dismissal as to make it unfair. You may be able to argue against this, if the person making the decision to dismiss was not motivated in any way by racial discrimination.
You will however be unlikely to succeed in winning the claim for racial discrimination, albeit if you can ‘prove’ that the individual did not really take offence, then it may be possible to limit the compensation for injury to feelings.
You will not however be able to do much to limit the damage to your reputation, and for that reason it would be worth exploring the scope for an agreed settlement to make this go away, making sure that such an agreement also covers a confidentiality clause.
You might also need to organise some training for your entire workforce about what your Equal Opportunities policy means in real and practical terms especially on the matter of banter.
The Senior Team are uncomfortable because the Managing Director has promoted one of our colleagues to a new role of Deputy Managing Director and given her a ridiculous salary increase, (albeit only the FD and I know about the salary hike). This is not sour grapes, but due to the fact that their ‘relationship’ is the worst kept secret in the whole business, and it had already drawn lots of snide and crude comments about both of them from the shop floor. We are not sure if the Chairman and Non -Executive Directors are aware of it.
As employees spend nearly as much time at work as they do at home, it is easy to understand why it is common for personal relationships, not just friendships, to be formed. However, personal relationships between colleagues can give rise to a number of issues for employers. They create a distraction for the employees concerned and their colleagues, as well as giving rise to complaints of unfair treatment, favouritism and abuse of power, and even discrimination or harassment.
If the relationship is between colleagues of different seniority, there is a risk that the more senior employee may abuse their position, to influence decisions relating to their partner and subordinate work colleague over performance assessment, pay reviews or applications for promotion. There is an even bigger commercial risk if they both have access to corporate bank accounts as that creates the opportunity for potential wrongdoing.
Such relationships at least have the potential to raise suspicions of unfair treatment among colleagues. According to a 2016 survey conducted by Vault, a company that ranks and reviews employers, while the majority of respondents did not have a problem with relationships between colleagues, a third thought that relationships between co-workers at different levels were unacceptable.
There are four problems here:
- A perception that the MD is wrongly taking advantage of his seniority and is guilty of unjustifiable favouritism.
- A lack of trust with the senior team as the MD is not capable of making rational judgments especially if it involves his ‘partner’.
- There is the concern over “pillow talk” and that the Deputy MD is made aware of business sensitive issues that they would not otherwise have been aware of.
- If the relationship later goes wrong and the Deputy is later removed as a consequence it could result in a claim for sexual harassment.
Whilst it may be sensible to introduce some form of personal relationships policy, this is likely to be very badly received by the people responsible for approving it.
In the USA, consensual relationship agreements – known as ‘love contracts’ – are used by some employers as a way of attempting to limit liability for claims of discrimination or harassment by employees, who are romantically involved should the relationship flounder. The use of these ‘love contracts’ does not appear to have taken off in the UK to any significant degree and in this case, would be very much about shutting the stable door after the horse has bolted!
We would recommend that you find a way of raising your anxieties with the Chairman or other non executive director on a confidential basis about two issues:
- Whether the promotion/pay increase was properly approved.
- How they are going to address matters so that your concerns about partiality and fairness are addressed.
There is probably no easy way out of this, and it is going to get messy, but it is likely that one or both will have to go. If not, it looks likely that the senior management team will be looking for new jobs to avoid an intolerable situation.
An employee has posted a comment on his personal Facebook page saying that he hates his work, our customers and his colleagues. The comment was made in his own time on his home computer, but it has been seen by some of our regular customers. His manager has told him that we will dismiss him.
Whenever an employer is considering disciplining an employee because of social media misuse, the ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed. This requires:
- a letter to be sent to the employee to explain the allegations and the potential sanctions
- a disciplinary meeting with the employee to give them an opportunity to explain their side of the story
- informing the employee of the decision
- giving the employee an opportunity to appeal against that decision.
An employer should always act reasonably in the circumstances. Therefore, before coming to a decision as to whether the employee should be dismissed, you should reflect on whether the posting and any damage caused by it, is so bad that it justifies such action. You must avoid knee-jerk reactions. Consider what was actually said and the context. Saying “I think I work in a nursery and I do not mean working with plants” is very different to specifically saying “my manager is apparently a c**t” (both of which are examples that have featured in Tribunal cases.
Someone must investigate the matter thoroughly. The employee should be given an opportunity to explain themselves. There have been situations where, for example, an employee’s account has been hacked and they did not make the offensive posting.
You should also evaluate the reach and impact of the posting; the more posts that are made and the more people that see them, the more likely it is to have a damaging impact. In this case regular customers are already aware of what was written. Consider your own internal guidance as most sensible employers now have a social media policy. Take into account any mitigating circumstances; where the employee has swiftly removed the posting or apologised, you may perhaps want to be more lenient, particularly if they have a previously good employment record.
Case law continues to evolve on employees being disciplined for what they say online, both in and outside the workplace. You can seek to treat social media postings by employees as disciplinary matters if they would genuinely damage your interests.
After the investigation, decide whether disciplinary proceedings are appropriate given the circumstances. If you believe that they are, start those proceedings by following the steps set out in your Disciplinary Procedure. Conduct a fair, impartial, thorough disciplinary hearing; then make up your mind.
To safeguard your business against social media misuse occurring in the first place:
- Introduce a robust Social Media Policy which clarifies how employees should behave and the consequences of the misuse of social media, even those written in their own time using their own equipment.
- Ensure the policy fits with existing employment documents such as policies on bullying and harassment, data protection etc.
- Train employees so that they fully understand the expected standards.