Time for Tiffin

A few weeks ago I wrote about whether a lapdancer could be held to be an employee (she couldn’t).  A similar question arose recently in the case of Tiffin v Lester Aldridge LLP at the EAT: can a Partner in a law firm be an Employee?  Nadine Quashie’s case was a Preliminary Hearing at first instance, i.e before the Employment Tribunal; Tiffin’s was an appeal against the refusal of the ET to hold that he was an employee.

Martin Tiffin had worked for the firm since 2001, working his way up from “Associate” to “Salaried Partner” to “Fixed Share Partner”.  What is a Fixed Share Partner? Mr Tiffin had put in a fairly small amount of money into the business (£6,000 odd),  paid tax on a self-employed basis and received monthly “drawings” and only had a limited say at management meetings.  He had also received a P45 when promoted from salaried partner to Fixed Share.

Lester Aldridge terminated his membership of the LLP and Mr Tiffin brought various claims, including for unfair dismissal.  If he was an employee then the ET had jurisdiction to hear his claim; if a partner it did not. Like Nadine Quashie, he lost.

The EAT applied the definition of “partner” contained in the Partnership Act 1890 which states that for a partnership to exit there must be a business, carried on by two or more persons with a view of profit.  Furthermore, the EAT held that it did not matter that Mr Tiffin received a smaller share of the profits than the other partners nor that he had limited voting rights.  Those considerations were irrelevant.

On all the facts, as reported, what seems most surprising is that Mr Tiffin was granted permission to appeal in the first place.  There are only two bases upon which it is possible to appeal a decision of an ET: (1) that it misdirected itself as to the applicable law or (2) there was perversity in its decision. Leave to appeal is not granted readily in either case.

Sadly (for him) Mr Tiffin could not pursue his claims before the ET or, to put it another way, he could not have his cake and eat it.

Related posts:

1. Employee, worker or neither?
2. Can an Employee be Sacked for Refusing a Paycut?
3. Can an Employee take a Lawyer into a Disciplinary or Grievance Meeting?

Can a Partner be an Employee? originally appeared on Jobsworth by Michael Scutt on 14/12/2010.

If you’re snowed in and can’t get to work, does your employer have to pay you?

Almost certainly not.  I did an interview for parentdish.co.uk on this very subject (click here).  Unless the employer is contractually obliged to pay (which would be unusual) if you can’t make it in to work because of the weather conditions, your employer doesn’t have to pay you.  The Lawyer today reported on one law firm taking a hard line on the issue.  As ever, much will depend on what the contract of employment says, but in my experience it is very unusual for contracts to say anything at all about this situation.

Whether that’s a smart move for a business to make is another matter and hardly likely to improve workplace harmony, especially amongst conscientious employees who genuinely can’t get in.

Employers should use their discretion.  They could ask employees to take holiday instead of docking pay.  Alternatively, could employees work remotely?   I wrote about the same issues back in May when many holidaymakers were stranded abroad by the Icelandic volcanic ash cloud.  It’s always best if employees know where they stand and now would be a good time for businesses to review (or create) their policy on this issue.

What about the situation where the police and weather forecasters are telling people not to travel unless absolutely necessary?  I don’t think it makes any difference to the payment issue.  But what if the employee has an accident whilst travelling in because they know they won’t get paid if they don’t?  Might they have a claim against the employer for “making” them travel in, despite the weather warnings?  I doubt it very much.

This is one of those issues where the legal answer might not always be the “right” one.  The odd day of snow induced absence here and there ought to be bearable by an employer.

What odds for a White Christmas?

No related posts.

It’s Snow Joke: My Boss Won’t Pay Me originally appeared on Jobsworth by Michael Scutt on 04/12/2010.

Nadine Quashie

There’s no question about it: take a good looking woman, preferably without her clothes, have her dancing (naked, of course), throw in some large sums of money, add a celebrity and a good soundbite from a lawyer and, hey presto, you have a story to fill the paper.  In fact, you have this story.

The case is being fought as a preliminary hearing to decide whether Ms Quashie is an employee or not.  If she is self-employed, as Stringfellows allege, then there is no jurisdiction for the ET to hear her unfair dismissal claim and she will probably have no other remedy apart from a claim for any notice monies she may be owed.  On the other hand, if she is held to be an employee then the case will go to a final hearing to decide whether she was unfairly dismissed, unless it settles in the meantime.

You might think that the issue of whether a person is an employee or not is simple, but it often isn’t.  There is no one litmus test to distinguish between an employee, a worker, or a self-employed individual.  How the person paid their tax is often a very important factor in determining their status, but it isn’t the only one.  That’s why Stringfellows barrister, Caspar Glyn of Cloisters Chambers, memorably stated “she was a complete stranger to the taxman”: not just no  PAYE there then.

Paying tax on a self-employed basis is often a very persuasive factor in pointing to a lack of an employment relationship, but it’s not the overriding consideration. Employers do sometimes set employees up as self-employed and draw up a contract of employment which states that it isn’t, and it is hard for the employee to do anything about that at least initially.  Not that many employees in the whole scheme of things seek legal advice before they join their “employer”.

One of my favourite case quotations on this subject is this one from the case of Levy McCallum Ltd v Middleton EAT [2005]

If parties agree to create a horse but instead create a camel, the fact that they intended to create a horse and even call what they have created a horse is of little assistance in determining whether it is in fact a horse

It’s almost up there with Donald Rumsfeld’s “known knowns”. You can see how you might get confused, can’t you?

One very important factor is the “mutuality of obligation” test: was the employer required to supply work and was the employee obliged to turn up and do it?  If yes to both then it is suggestive of an employment relationship. Contrast that with a plumber whom you ask to come and fix your tap: it’s a one-off job and you’re merely engaging his services for that work.  Also, the plumber can delegate his duties to someone else – e.g. his mate.  An employee can’t do that.

Ms Quashie is probably relying on another test – that of direction.  She was working at the direction of the club and that is often evidence of an employment relationship.  They told her when to dance, and supplied the customers. She alleges she had to work – dance – for free, although the club denies this.

The result will be interesting.  My money’s on the horse.

If you’re in doubt about the terms of your employment,  contact me at michaelscutt@dalelangley.co.uk for a no obligation no fee discussion.

No related posts.

What Makes a Good Employment Law Story? originally appeared on Jobsworth by Michael Scutt on 29/10/2010.

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. UK Banks Facing Rising Lawsuits over Stress? Really?
3. Stress at work

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

Well, would you believe it?  In the week that I gave a talk at the City Business Library about contracts of employment (see here for my slideshare presentation) and the differences between employees, workers and the self-employed, I came across a case in the Employment Appeal Tribunal (EAT) which discussed all these issues.  It is an important issue because the answer to the question will determine what legal remedies are available to the individual.

In the case of Clarkson v Pensher Security Doors Ltd [2009] UKEAT 0107_09_1606  the Applicant undertook the bulk of the electrical work for the Respondent company.  He provided most of the tools he did and although he was given jobs to do he was not told how to carry out those jobs.  He was paid hourly and kept to hours stipulated by the Respondent and, importantly, there was “mutuality of obligation” between the parties – i.e. the Respondent would supply work and Mr Clarkson would undertake it.  However, he took no part in the running of the company or attended company meetings or appraisals and was not paid when he didn’t work. He did do some, limited, work for On the facts it seems like he was, at least, a worker (which is a broader category with fewer legal rights).  However, it was finally held that Mr Clarkson was neither a worker nor an employee and, instead, he was an independent contractor or “business undertaking”.  This meant that his legal rights against the company were confined purely to the terms of the contract between them (and it isn’t clear whether that contract was in writing or purely oral).  In other words he had no right to apply to an Employment Tribunal for any remedies that might otherwise have been available to him. 

This case demonstrates the need for businesses and workers/employees to enter into clear written agreements that set out their status and thus, hopefully, avoid the need for expensive and time consuming litigation that these parties found themselves embroiled in. 

If you need assistance or advice on these issues please do not hesitate to contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

Related posts:

1. Can an Employee take a Lawyer into a Disciplinary or Grievance Meeting?

Employee, worker or neither? originally appeared on Jobsworth by Michael Scutt on 23/10/2009.

In a bit of a departure from normal practice here I am uploading a copy of a presentation I gave at the City Business Library today. It may be a bit cryptic if you weren’t there to hear it and please contact me if you require further assistance or explanation.  You can find it at my Slideshare site, which is here;

http://www.slideshare.net/michaelscutt/contracts-of-employment-201009f

Related posts:

1. Contracts of Employment: what you need to know
2. Harmonising contracts under TUPE
3. What Makes a Good Employment Law Story?

Contracts of Employment – what you need to know originally appeared on Jobsworth by Michael Scutt on 20/10/2009.

I  spent a good part of yesterday evening preparing a seminar that I have been asked to give at the City Business Library on 20th October next.  The topic handed to me is the title to this post: “Contracts of Employment: what you need to know”, to cover one hour.  The seminar is aimed at new businesses looking to take on staff for the first time.  At first glance I thought it would be an easy topic, one I am very familiar with, nothing too controversial and plenty of time for discussion afterwards.  Then, on my way in to work this morning, tapping out a skeleton presentation in Powerpoint on the trusty laptop, I realised just what I have let myself in for. 

The topic is huge.  You could spend an hour discussing what actually constitutes an employee before you even get on to discussing the information that has to be given to a new employee under s.1 of the Employment Rights Act 1996 (click here to view the BAILLI database for the full test of s.1). If you follow that link  you will see that s.1 requires the employer to write to the employee setting out the main terms of the employment, the name of the employer (not as silly as it might seem at first glance), the date the employment began and any periods of continuous employment to be taken into account, job title, place of work, the amount and rate of pay and many other important “housekeeping” issues.  The s.1 statement must be given within two months of the employee starting work, failing which the employee could complain to an Employment Tribunal for a declaration of the applicable terms of employment.  In other words, the ET would decide what the terms and conditions of employment will be (or were if the employee has since left); a potential double-edged sword which is why not many complaints under s.1 ERA get made to ETs.

In many cases a business will describe someone as “self-employed” when, in reality, they are an employee, in an attempt to avoid the individual acquiring the right to sue for unfair dismissal. The taxation treatment of the individual isn’t enough.  In other words, if someone is not on PAYE that doesn’t mean they are self-employed.  There are many different tests used by ETs to determine whether a person is an employee or not – none of them overridingly conclusive.  Each situation is looked at on its own facts and an ET won’t be blinded by whatever label the person has been given. 

The factors that are particularly important though concern whether there is a need for the individual to provide the services themself, or are they required to find a substitute to perform when they are sick/on holiday.  If yes, then that tends to be suggestive of an independent contractor relationship rather than an employee.  Also is there mutuality of obligation?  Is the business obliged to provide work to the individual?  If no then it is not suggestive of an employee relationship.

A massive topic and I haven’t even got onto disciplinary procedures, notice periods, PILON clauses, restrictive covenants and how to avoid being sued plus a hundred and one other considerations. At least there is scope for further seminars.  More updates to follow in due course.

Of course, if you want any advice on any of these issues please do not hesitate to contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

Related posts:

1. Contracts of Employment – what you need to know
2. Harmonising contracts under TUPE

Contracts of Employment: what you need to know originally appeared on Jobsworth by Michael Scutt on 12/08/2009.