August 2017


Hello, we would like to share the latest news within Cluer HR as well as keeping you up to date with developments in the world of HR and employment law as they occur.

It’s all part of the service. We hope you find it useful. Your comments and suggestions are always welcome.

When is a sub-contractor or contractor (or self-employed person) not a sub-contractor?

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We’re coming across a lot of late – employers who believe that by engaging a person to carry out work on a self-employed or sub-contractor basis, they side-step the requirement to enter into an employment relationship and all the risks and obligations that come with that relationship.

“It suits us both [the employer and the ‘sub-contractor’], so it’s a ‘no brainer, isn’t it!?”

“They do work for other people, so they must be a sub-contractor, must they not!?”

The answer to both these questions is “not necessarily” we’re afraid to say!

All too often these ‘self-employed’ workers and the sub-contractors are actually, in reality employees in disguise!

Whether someone is an employee is a notoriously tricky question to answer. There is no hard and fast definition. A lot of it boils down to how much control you, as the employer have over that person and their work. If the control is high, the likelihood is, that person is an employee.

We still sense some furrowed brows, so we’ve devised a set of questions that should help.

When considering whether that person who works for you is truly self-employed, contracting or sub-contracting, ask yourself the following 10 questions:

1. Is the worker required to comply with another person’s instructions regarding when, where, and how to perform the work?

2. Does the worker need to be trained by the employer to ensure the services are performed in a particular way?

3. Does the worker need to carry out the work themselves (as opposed to being free to engage others to perform the service for the company)?

4. Has the person worked for you for a significant period of time? (A lengthy and continuing relationship between the worker and the company indicates that an employment relationship exists)

5. Are the hours of work set, and does the company control the hours of the worker?

6. Must the worker devote substantially full time to the company’s business (as opposed to being able to perform services for more than one company at a time)?

7. Is the work carried out on the employer’s premises?

8. Is the worker paid hourly, weekly or monthly? (Payments generally point to an employment relationship. On the other hand, payments based on a contract or for completing a particular job or task will generally indicate an independent contractor relationship.)

9. Does the company ordinarily pay the worker’s business and traveling expenses?

10. Does the company provide the resources (tools, materials, and other equipment)?

If you are answering yes to any, or at least a few (if not all) of these questions, it is likely that your worker is actually an employee and therefore should be set-up and treated as such.

This is typical of the type of thing we help our clients unravel. If you think that this could affect your business, why not give us a call on 01386 751740 or email us at [email protected]

Is it ‘safe’ to suspend an employee suspected of misconduct?

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Suspension will normally be appropriate where: if proven, the employee’s conduct would be sufficiently serious to be grounds for summary dismissal; the employer has reason to believe that the employee might deliberately cause damage or create problems if allowed to remain at the workplace; or the employee’s continuing presence at work might prejudice the investigation in some way. It is not usually however, appropriate in cases of minor misconduct.

However, perhaps not surprisingly, as is so often the case with employment law there are exceptions to this guidance, particularly given a recent High Court decision, which found that the suspension of a teacher amounted to a breach of the implied term of mutual trust and confidence.
In this case the teacher concerned was suspended because of the force she used with two children. However, she had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. She resigned the same day.
The High Court found that the suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. It also considered the statutory guidance for local authorities to avoid knee-jerk reactions and not to default to suspension in such circumstances. It is also of note that the reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”.

Whilst there are some fairly specific circumstances surrounding this case, including the local government guidance and the professional status of the claimant. It does highlight the importance of considering the individual circumstances of a situation and not automatically defaulting to suspension in cases of suspected gross misconduct.

Would you recognise a case of whistle blowing (protected disclosure) in your company?

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‘Whistle blowing’, is a disclosure made by a worker, in the public interest, concerning a wrongdoing on the part of his or her employer. It can include information about:

· an alleged criminal offence;

· a failure to comply with a legal obligation;

· a miscarriage of justice;

· a breach of health and safety such that an individual has been, is, or is likely to be endangered;

· damage to the environment; or

· the deliberate concealment, or likely deliberate concealment, of information about one of the above.

It is particularly topical given a recent Court of Appeal decision which found that a disclosure which is in the private interest of a worker can potentially become in the ‘public interest’ if it also serves the (private) interests of other workers as well.

Under the Employment Rights Act 1996, the definition of a qualifying disclosure for whistleblowing purposes includes that “in the reasonable belief of the worker making the disclosure, [the disclosure] is made in the public interest…”

The claimant was, along with about 100 colleagues, paid commission at work. He believed his employer was exaggerating expenses to depress profits and thus reduce commission payments, in total by about £2­3m. That was an allegation capable of being a protected disclosure, if he fell within the provision that he had to reasonably believe it was in the public interest.

The question: was a disclosure about a commission structure affecting only a small(ish) group of salesman something which could reasonably be believed to be in the ‘public interest’?

The Court of Appeal held yes, stating the mere fact something is in the worker’s private interests does not prevent it also being in the public interest.

Whilst this case is heavily fact ­dependent and subject to certain criteria, it highlights the importance of knowing when and how to spot a protected disclosure, in order that it can be dealt with correctly and in line with legislation, before it gets out of hand.

If you think that you may have a protected disclosure situation within your business, contact us, so that we can guide and support you through the management of it.

Helpful HR Pointers– Straight to your inbox

If you missed our blogs this month, we wrote “Should Employers Bin Banter?”, which explored the problems with office getting out of hand and “Are We About To See A Rise In Employees Taking Employers To Tribunal?”, which explained how The Supreme Court has ruled employment tribunal fees to be unlawful.

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