As you may have seen on the news last week, the Supreme Court has ruled employment tribunal fees unlawful, and has abolished them. In fact those who have paid fees will get them refunded. Claimants with genuine claims might even be allowed to make a claim “out of time” if they can show the fees were the reason they did not claim. 

Since the fees regime was instigated, claims went down by 70%, so in all likelihood this now means that because there will be no financial barriers to those seeking redress in employment tribunals, the instance of both strong and weaker claims, even pure "fishing expeditions" is highly likely to increase.

This means that it’s more important than ever to make sure that the proper processes are followed, not only to avoid actual claims, but also to avoid being tied up in the administrative burden that even a threatened claim can produce. 

As always, it's invariably cheaper to contact me and ask me whether it's okay for you to do something, rather than contact me and ask me whether it was okay to do the thing that you just did. 

I hope you are enjoying the summer, weather permitting! 

I was watching a TED Talk recently and a very important point was made about finding the correct balance between life and technology. 

The speaker, Simon Sinek, pointed out the many behaviours that people have with email, text messaging, and social media, particularly in relation to cell phone usage, which in his opinion can amount to an addiction.

I highly recommend searching for some of his talks. One of the many examples he gives is that he feels mobile phones should not be present during meetings. Fair enough if they are on silent and in people's pockets, but certainly not placed on the table. 

He feels that walking into a meeting and placing your phone in front of you on the table sends the signal that the meeting isn't actually that important to you, that you are prepared to answer your phone or respond to a message, rather than give your full attention to the person with whom you are meeting.

That's just one small example. But there is one thing he said which really resonated with me, and it was this;

"When you don't have your phone, you kind of just enjoy the world."

My phone, as a business tool at least, is important to me. Being available for clients is one of the key selling points of my business. My clients know that if I don't answer their call, I'll be getting back to them within a few hours, as soon as my meeting is finished usually, and always on the same day. 

So when I went on holiday for two weeks it was difficult for me to let go of the concept of being on call. But I did need a holiday. So I planned one. I booked one. I told my clients well in advance. I put in place an emergency plan so they could contact someone in my absence, then I turned my phone off and went on holiday, so I left the phone off for two weeks, locked in the safe in the villa. 

The world didn't end, there were no emergencies, and when I got back my clients asked me whether I had a nice holiday. Me being out of contact for two weeks didn't cause any problems whatsoever, and I learned an important lesson.

But the reason why the above quote about not always having your phone resonated with me is that I have personal experience of it. You see there was another interesting and very beneficial by-product of having my phone switched off. Because I had no phone in my pocket, I had no camera in my pocket. In fact I don't possess a camera apart from the one on my phone. 

I was staying on a beautiful island with many interesting places to visit and I cannot tell you how liberating it was to arrive at a beauty spot festooned with so many perfect photo opportunities, but without a camera.  

I watched every other tourist, without fail, arrive at these amazing places and appear to be viewing them completely through their phone; obsessed with taking as many pictures as possible. Sometimes after doing this they just trudged back to the tour bus or the hire car, in a way that seems to me they hadn't really looked​ properly. I however felt a sense of grounding and presence at these places which I believe I never would have felt had I, like them, had my camera phone with me. 

Another important lesson.

I believe it made my holiday so much better, and let’s face it, who really goes through holiday snaps anyway, apart from to show them to others? Perhaps people are only really taking the pictures to put them online to show all their friends what a lovely time they had.

So remember, next time you’re going to do something amazing, or go somewhere beautiful; don’t take your phone, just kind of enjoy the world.

Most employers will have noticed the news stories recently about companies such as Uber and Pimlico Plumbers losing tribunal cases where people whom firms considered were self-employed turn out to be 'workers/employees' in the eyes of the law. 

The law will always look at the reality of any relationship between an individual performing services and the hiring firm. In a nutshell therefore, whatever you have in writing saying someone is self-employed, doesn't necessarily mean they are. 

Each case is assessed on its merits, so I can't give absolute advice here, but here are some useful guidelines to help understand the way the relationship is assessed.

In addition to the information below, it's also worth asking whether the person you are engaging to perform self-employed services is A; actually in business in their own right (although they do not have to be a Ltd company), B; whether they have an identifiable brand (i.e. a trading name, a website etc.) and C; whether they have a range of other clients. 

Any arrangement which holds itself out to be a self-employed situation but in every other way looks like an employed relationship, for example purely for the hiring firm to avoid the legal obligations of employment and the service provider to have a few tax advantages, then it may well be that the law will say that it is not legitimate self-employment. 

We have been asked whether a company can reject a job applicant from another EU member state on the basis that they could lose their right to work here following Brexit.

No you can't. Until the terms of Brexit are put in place the rejection of a candidate (or any detrimental treatment of an employee) on this basis will count as unlawful discrimination on the grounds of Nationality.  

It has long been supposed by many that restrictive covenants in an employment or engagement contract are largely unenforceable and not really worth the paper they are written on. This is not true; properly and fairly drafted restrictive covenants which legitimately protect the specific business interests of an employer are likely to be enforceable, provided they don't try to impose an unfair restriction on trade. 

However, in a new twist, a recent case has shed light on a criminal element in client data theft, via the good old Data Protection Act. This has been highlighted by the Information Commissioner's Office in a recent press release regarding the case of a man who was convicted after sending personal and commercially sensitive information concerning 957 clients of his employer to his personal email account as he prepared to join a rival company.

Data Protection Act – criminal litigation risks

So, rogue employees be warned – taking client records to a new employer may be a criminal offence under the Data Protection Act 1998, punishable by a fine on conviction. 

The ICO is even calling for harsher penalties, including custodial sentences, to punish offenders, so it really is time to put down the flash drive and think again.

Hopefully companies have more protection than they might think, after all, an employee evading a civil court issue is one thing, but risking a criminal record is quite another. In fact in some industries (e.g. Financial Services) it could lead to a banning order. 

​

​One of the classic 'trailing edge' administrative functions of a growing business is Human Resources. 

•    Are you using out of date Employment Contracts? 
•    Do you have contracts at all? 
•    Do you have the required Policies in place, i.e. Equal Opportunities, Health & Safety, Disciplinary etc.? 
•    Are your contracts unwittingly exposing you to increased costs and responsibilities not actually required in law?

If you suspect that the answer to any of those questions causes you concern, then perhaps now is the perfect time to contact me. I specialise in assisting successful organisations during growth phases, in order to make sure they keep doing what they're good at, and leave the administration to those with both the legal knowledge and the commercial focus to maximise profits.

Let me help you; if you are searching for HR answers all day, what are you not doing elsewhere in the business? 

How much is your time as a business owner worth? 

Common HR mistakes that SMEs make..

Or to put it another way, the costs of trying to do your own HR and not getting it right. This post explores two of the most common things I find when clients try to do the right thing, but get it wrong.

Mistake Number One

Question: Do you know how much it costs your business if a manager, fee-earner or director spends all day, all week, or a weekend searching for employment law advice on Google? 

Answer: A lot more than you would pay me!

That's the first thing; the realisation that properly procured outsourcing is often the cheapest option. When you look at how much a director gets paid (which, let's face it, should reflect their value to the business) you are tying up incredibly valuable time on what is very often an administrative task. If you're searching on the Internet for employment law advice the other major factor at play is that you have no way of knowing whether the advice you find can be relied upon. 

Employment legislation usually changes in both April and October, with additional cases going to tribunal on a weekly basis, the decisions from which do sometimes affect law. Even lawyers have trouble keeping up with all this, so how can a business owner, with all their other responsibilities, possibly do it? 

Mistake Number Two

I come across this one a great deal. Many business owners, but particularly ones setting up a fledgling businesses, sometimes use HR documents and handbooks that they've 'liberated' from their previous company, you know what I mean. 

The danger of this, apart from the obvious breach of intellectual property law and possibly even theft, is the fact that it is almost certain that some of these documents are going to be out of date before you even begin to start using them. 

I recently came across the most poorly drafted employment contract I have ever seen in my career, and without naming names, it had been purloined from a national organisation. So much for bigger being better. 

In short, HR and employment law is far too important to leave to chance, or the Internet, or to rely on the stuff in the boot of your car which you 'accidentally' didn't give back when you resigned from your job.

If you want to know how much money I can save you, contact me to find out.

One of the problems is, like searching for any service provider in whom you are going to have to place an enormous amount of trust, confidence is key. For example my accountant was referred to me by my brother, so I couldn't get any more of a personal recommendation than that. 

We all know that most business people wouldn't think twice about using an accountant to do their books, yet they often hesitate about seeking help in other areas. I have a theory that it's not so much that they're not open to outsourcing, it's that they're not really sure what to search for. For example, I'm an HR Consultant, but many people won't Google HR Consultant, they are more likely to Google the actual problem they are having, for example something like Unfair Dismissal.

They then go onto spend (some might say waste) an inordinate amount of their time trying to get an answer to something that I could give them in five minutes. My problem is communicating this concept to as wide a customer base as possible. If anyone reading this has any ideas that can help, please let me know. 

The other problem that I come across constantly, is when people do Google HR Consultant, they experience something approximately along the lines of the following:

They engage with some sort of large HR / business support company whose largest section of employees will probably be their sales force (that in itself should tell you something). The employer might even receive a visit from a sales representative with a fairly slick brief, who will emphasise the benefits of signing up to a contract of often many years duration, 'safe' in the knowledge that they will be covered by insurance for when the inevitably huge number of tribunal claims comes their way. They also receive reassurance that they will have dedicated support when they need it. This is all very well, but it is true?

More or less I suppose, except perhaps that the suggested inevitably huge number of tribunal claims is exaggerated, and the fact that 'support' is a subjective term. So whilst the above claims may be technically true, will the customer get not only what they think they want, but more importantly, what they need?

All my clients without exception appreciate more than anything else that I'm available on the phone whenever they need me, and that I will, if it comes to it, drop everything and come and see them in an emergency. That might mean mediating in disputes, sitting in on a final interview, or a huge host of other things that, if you were a larger company, you would ask the Human Resources department to do for you.

In fact not so long ago, I was asked a barrage of questions by a business person I met at a function, all about HR. It turned out that this person signed up to a very long contract with a HR support provider. I asked him why he wasn't asking them these questions, and he said that he wasn't getting the kind of response that he needed and he got the distinct (and most likely correct) impression that the different person he spoke to every time he called was reading the answer to his questions from a computer screen.

Draw your own conclusions as to why he was unsatisfied with this. If you, or anyone you know, is running a business and employs people, and who would like straightforward, personal HR support, director-to-director, then please give me a call. 

Have a great week. 
Duncan.