1. 10/23/2009
EMPLOYMENT LAW SEMINAR
g
www.bennettslegal.co.uk
BUSINESS GROWTH THROUGH FLEXIBLE
WORKING SOLUTIONS
Paul Bennett 01743 453 161
contactus@bennettslegal.co.uk
Part 1 ‐ Overview
• The main aim of this talk is to show that
employment law can be used to grow a
business.
• Employers often only hear the negative
Employers often only hear the negative
compliance elements;
• Today is about showing it can be used more
creatively;
• We will cover the compliance as well.
Part 2‐ Update
• 1st October 2009 changes;
• Questions and Answer session
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2. 10/23/2009
Flexible Working Solutions
• Not all workers need to be employees;
• Different rights and obligations exist between
the two;
• Employees have far better rights;
l h f b i h
• Employers can make use of these differences
to reduce the cost of employing staff;
• You can also keep staff by offering flexible
working (particularly those with families)
Flexible Working Solutions
Employees Workers
• Written particulars of • Not need a statement of
employment (Section 1 ERA terms;
1996 within 8 weeks).
• Statutory Sick Pay(SSP) • No SSP, SMP, SPP, SAP
needs to be paid.
• Statutory Maternity Pay
(SMP), Paternity (SPP),
Adoption(SAP) needs to be
paid.
Employment Status Overview
(continued)
Employees Workers
• Time off for public duties, • No such “rights”.
trade union etc; • No such protection rights.
• Notice Pay on termination,
written reasons for
dismissal, right not to be
unfairly dismissed,
redundancy payment right
(after 2 year qualifying
period).
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3. 10/23/2009
Does it matter?
• It may do to the employee or worker;
• It affects HMRC Taxation and National
Insurance position (you can save money and
some workers can to!);
some workers can to!);
• Employment Tribunals have to apply the rights
applicable to the status of the worker. Using
workers reduces the risks;
Full Time In house
• I see businesses trying to claim all staff are self
employed;
• Full Time, part of the furniture workers are
employees both for HMRC and ET purposes.
employees both for HMRC and ET purposes
Trying to argue not is foolish and destroys
credibility
Flexible?
• Anyone not working a typical way. I mean
work which does not fit the classic or
traditional concept of an employee working
full time for a single employer under a
full‐time for a single employer under a
contract of indefinite length;
• For example:‐ Casual, Home Workers,
Consultants, Self Employed or Multi‐
Employed.
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4. 10/23/2009
Casual
• Casual workers supply their labour or services in irregular or
informal working arrangements under which there is no obligation
to provide or accept work. The flexibility in such arrangements may
suit both employer and worker and often takes the form of:
• One‐off tasks or events.
• Being available on an on‐call basis: the employer contacting the
worker when work becomes available, but there being no obligation
on the worker to accept the work.
• Working under a zero hours contract, under which the employer
does not guarantee to provide work and pays only for work actually
done can be useful in some sectors (care work, bar, shop staff etc)
How to do casual working?
• Zero hours contracts • Zero hours contract the
with individuals; ideal if recruiting direct;
• Target skill shortages • Agency workers –
and those for whom it “temps” ensuring
may appeal i.e. neither the agent or
Students, parents with business have them as
child care issues, older employees (a paper trail
workers, self‐employed test. ET/HMRC check if
people looking to top such arrangement are a
up income. sham).
Consultants
• Many self‐employed workers are engaged on a
consultancy basis. However, a person who works
in a consultancy or advisory capacity may be an
p y
employee.
• Whether an individual is self‐employed or an
employee will depend on the circumstances and
the application of relevant case law. Get a written
agreement in place and stick to it – include status
clause and Tax and NI indemnity for business.
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5. 10/23/2009
Consultants
• Each case is unique and hence a agreement is
needed bespoke to the services or skills being
provided.
• HMRC challenge these so ensure paperwork is
HMRC challenge these so ensure paperwork is
in order.
• Can obtain highly skilled individuals for a
limited time period per week/month.
What do I mean?
• Self Employed • No PAYE;
Consultants; • Payment by results;
• Experts selling their • No tax contribution by
skills to the business; employer;
• P j b d
Project based work; k • No NI contribution by
• Temporary workers employer;
being used to bridge • No long term
gaps. overheads;
• Limited cost
commitments.
Why now?
• Flexibility for both parties;
• Income from various sources for experts;
• It bridges the gap between permanent new
roles for the recently unemployed;
l f h l l d
• Economic situation causes both sides to
consider “new” ways of working.
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6. 10/23/2009
Contractors
Can be engaged because of :
1. Specific Skills;
2. Experience;
3. Industry knowledge (for lack of knowledge if
business is being reviewed);
4. Short term needs of business or a specific
project.
How?
• Use a Consultancy Agreement or Contract for
Services;
• This sets out terms of engagement;
• Additionally this permits the use of
ddi i ll hi i h f
restrictions to allow confidential information,
client information and commercially sensitive
material to be shared;
• Sets out expectations.
How? (continued)
• Deal with tax and NI contributions by worker;
• If limited hours per week I suggest Self‐
Employed hence not entitled to employee
rights such as holiday pay; notice pay; sick pay
rights such as holiday pay; notice pay; sick pay
etc;
• Must make clear consultant may decline work
and be available to work for others (HMRC
test).
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7. 10/23/2009
Experts
• High level expertise may be available to be
purchased;
• IT;
• Marketing;
• Public Relations;
• Accountancy/Finance;
• Sales;
• Business Development;
Documents
The need to use these should be clear for a
number of reasons:
1. Managing both parties expectations;
2.
2 Avoiding disputes;
idi di
3. Ensures Tax and NI position is clear to all
parties;
4. Focus on outcomes/targets to ensure project
runs smoothly.
Home workers
• There is no statutory definition of a home
worker;
• Unlike the traditional image of someone
(
(usually a woman) with little job security
y ) j y
doing tasks on piecework rates, the majority
of home workers are now managerial,
professional, technical or skilled workers.
Home working is also more common among
the self‐employed.
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8. 10/23/2009
The Options
• Work exclusively at home (on a full‐time or
part‐time basis).
• Divide their working time between home and
their employers premises
their employers' premises.
• Work at home only on an occasional basis.
• Be mobile workers, using their home as an
administrative base.
Practical Tips
• The employer needs to be satisfied that the
worker has a suitable place to work at home and
is able to ensure that domestic and family
g
commitments do not intrude into working time; ;
• Whilst employers usually steer clear of asking
express questions about childcare, it may be
essential for the employer to know that
appropriate arrangements have been made – a
contractual clause can be included;
Practical Tip’s Continued
• The same questions relating to domestic and
family commitments must be asked of both
male and female workers, however, to avoid
accusations of discrimination. Record them on
accusations of discrimination Record them on
personnel files;
• It is usually better and safer to agree a trial
period than just to move straight into the
home‐working situation;
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9. 10/23/2009
Practical Tips (continued)
• The home worker should be self‐motivated,
self‐reliant and disciplined and able to
complete work to scheduled deadlines.
• They usually require greater than average
They usually require greater than average
initiative, flexibility, communication and time
management skills. Use these to select home
workers or to manage such requests.
Self Employed
• Consultants are usually self‐employed;
• Anyone who is not obliged to accept work can
be self‐employed hence any of the status we
have talked about can be self employed.
have talked about can be self employed
Flexible Working Requests
• So far I have talked about Employer requests
to highlight the business benefits but of
course ‐ sometimes employees want to work
flexibly;
• The rules are found in three pieces of
legislation;
• Focus first on those for child care reasons.
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10. 10/23/2009
The criteria
1. Be employed – But as we have seen this is not
necessary if it makes business sense;
2. Have 26 weeks' continuous employment at the
date the application is made;
date the application is made;
3. Not be an agency worker or a member of the
armed forces;
4. Not have made another application to work
flexibly under the Right to Request Legislation
during the preceding twelve months;
Criteria (continued)
5. Be making the request in relation to a child
under 17 years old (or 18 years old if the
child is disabled);
• Be either:
5.1 The child's mother, father, adoptive parent,
guardian or foster parent; or
5.2 The spouse, civil partner or partner of the
child's mother, father, adopter, guardian or
foster parent.
Criteria (continued)
6. Have or expect to have responsibility for the
child's upbringing;
7. Be making the application in order to care for
the child;
the child;
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11. 10/23/2009
Adult Carers
1. Employees caring for adults have also been
eligible to make a statutory request to work
flexibly since 6 April 2007;
2. Be or expect to be caring for a person aged
eighteen or over who is in need of care;
eighteen or over who is in need of care;
3. Married to, or the civil partner or partner of the
employee; or
4. A relative of the employee; or
5. Fall into neither category but live at the same
address as the employee.
What kind of changes can be applied
for?
An eligible employee may request:
1. A change to the hours they work.
2. A change to the times when they are
required to work.
i d k
3. To work from a different location (for
example, from home).
Procedure – It is statutory and
prescriptive
• The employee submits a written application
setting out the work pattern that they are
requesting and specifying their entitlement to
make the application in accordance with the
make the application in accordance with the
EA 2002;
• Within 28 days of receiving the request, the
employer must arrange to meet with the
employee in order to discuss the application;
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12. 10/23/2009
Continued...
• Within 14 days after the date of the meeting,
the employer must write to the employee to
either agree to the new work pattern and set
a start date, or to provide grounds for the
a start date or to provide grounds for the
rejection of the application and set out the
appeal procedure (regulations 4 and 5,
Procedure Regulations);
Continued....
• The employee can appeal the rejection of a
request, but must do so within 14 days of the
appeal being rejected;
• Within 14 days of receiving the appeal notice
Within 14 days of receiving the appeal notice
the employer must arrange a further meeting
in order to discuss the grounds of appeal.
• Within a further 14 days after the meeting the
employer must deliver the appeal decision;
Rejecting or refusing the request
• A request may only be refused on eligibility or
procedural grounds or on one or more
prescribed statutory reasons, which are listed
below:
below:‐
1. Rejection of application on eligibility or
procedural grounds;
2. Refusal of request following initial meeting
can be on the following grounds:‐
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13. 10/23/2009
Reasons to Refuse continued...
• The burden of additional costs;
• Detrimental effect on ability to meet customer
demand;
• Inability to re‐organise work among existing staff;
• I bili
Inability to recruit additional staff;
i ddi i l ff
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during the periods the
employee proposes to work;
• Planned structural changes.
Conclusion
• Hopefully today has shown flexible working
can be employer or employee initiated and if
it make sense for business then use it.
Part 2 – Employment Law Update
Recent Employment Tribunal statistics show:‐
• 20% increased in claims accepted over the last
year;
• I
Increasing claim areas were unfair dismissal;
i l i f i di i l
redundancy pay and breach of contract
claims;
• Decreasing areas of claim are working time
claims, equal pay and sex discrimination.
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14. 10/23/2009
Statistics
• Largest Award ‐ £1,353,432;
• 21 Age Discrimination claims (average
£8,000);
• Costs awarded on 0.2 % of cases;
d d 02% f
1st October 2009 Changes
• A weeks pay is now calculated at a maximum
of £380 (for redundancy, unfair dismissal);
• National Minimum Wage rate increase:
£5.80 (Adults – 22
80 ( d l 22 years and over)
d )
£4.83 (Development Rate 18‐21 years)
£3.57 (Young Workers 16‐17 years)
• Tips no longer count as part of wages
1st October 2009 (Cont)
• 250 or more staff – ICO Data Protection Fee now
£500 (up from £35);
• Immigration new points system introduced.
Those with none EU workers must follow a new
procedure to show worth (5th October onwards);
h
• Unification of Safeguarding Children and
Vulnerable Adults lists (12th October 2009). Those
in the care sector need to review compliance and
until 26th July 2010 be aware the rules are
changing in phases.
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15. 10/23/2009
Question & Answer Session
Bennett’s Legal
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y
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implementation;
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support is offered.
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