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Archive

January, 2021

Understanding whether you ’employ’ consultants – five key steps

Posted on: January 27th, 2021 by Ginny Hallam

So, you know that employment status matters (more information here). But do you know whether your consultants are ’employed’ by you?

Here are five key steps to establishing whether you actually employ your consultants:

Personal service – review whether your consultants have to deliver the work personally, or whether they can deliver the work via a substitute. If they have to deliver the work personally, that is a factor indicating they may be an employee.

An obligation to do the work – consider whether your consultants can choose to turn down work that you offer to them. If they have to deliver work that is given to them, that is another factor indicating employment status.

Control – challenge yourself on how much control you have over the consultant. Do they use your equipment, invoice you for the work, rely on your insurance, look to you to authorise holidays (along with many other factors)? If so, each of these indicates employment status.

Documents – read carefully the arrangements that you’ve set out in writing. Do they reflect a self-employed arrangement and what truly happens in practice? Again, if not, you have further factors indicating employment status.

Advice – the test for employment status is multifactorial and complex. If you’re not confident as to the approach to take or the outcome that you’ve determined, consider taking advice. We’ve created a detailed checklist to get you on your way to determining the status of individuals you engage. Get in touch for advice or how to access the checklist.

In our next update, we’ll be considering the key terms you need to consider including / updating in your consultancy agreements to ensure you avoid claims of ’employee’ status. Get in touch for more information on accessing our consultancy agreement template. 

 

This update is accurate on the date it was sent (28 January 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Brexit series #5 – key communication to colleagues

Posted on: January 27th, 2021 by Ginny Hallam

Clear, consistent communication about employment-related Brexit changes should avoid distraction and help colleagues to remain focused and feel supported. 

Communications should cover: 

Awareness – include information about the EU Settlement Scheme, who needs to apply, and how applications can be made.

Deadlines – applications for settled or pre-settled status need to be made by 30 June 2021. Stress the importance of the deadline and the consequences of failing to secure the right to remain.

Practicalities – applications can be made online (laptops, smartphones etc.) or by post, with supporting documents either scanned and uploaded, or posted. Make IT resources available to colleagues who may not have immediate access.

Reviewing status – explain that you’ll require colleagues to provide you with a ‘share code’ to view their status online and their right to remain in the UK.

Support – whether it’s directing colleagues to online government resources, or offering drop-in sessions to help with applications, make sure you shout about help available.

We’ve created a user-friendly, accessible template letter providing detail on everything covered above (and more!). Get in touch for more information on accessing the template communication.

 

This update is accurate on the date it was sent (27 January 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Don’t be harassed by holidays!

Posted on: January 25th, 2021 by Ginny Hallam

Encouraging employees to take a break throughout the year remains a priority. Whether you’re at the start of your holiday year or haven’t got around to thinking it through, we’d suggest addressing annual leave early.

Sooner rather than later – communicate early how you’d like employees to approach their holiday throughout the year. It may well be the case that employees are saving holidays for a time when travel is possible and hospitality is open – addressing early how you expect your employees to manage their holiday is vital.

Reluctant holiday-makers – you have the right to require employees to take holidays (by giving them twice as much notice as the holiday you require them to take – or whatever is in their contract).

Holiday during furlough – although the flexible furlough scheme can’t be used solely to fund employee’s holidays, if the employee is already furloughed there is nothing wrong in ensuring employees are still taking holidays (and you can use the furlough scheme to fund them in part).

Buy-back – if you have a generous holiday scheme meaning it’s even more of a struggle for everyone to fit in their holidays, you could always offer to buy back holidays (provided that in doing so you don’t take the employee below statutory minimum holidays of 5.6 weeks).

Don’t forget that however busy you are as well as holidays giving employees the opportunity to recharge, they are a health and safety requirement under the Working Time Regulations, so regular holiday reminders are essential on lots of levels. Get in touch if you have any questions.

 

This update is accurate on the date it was sent (25 January 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Brexit series #4 – data protection changes?

Posted on: January 22nd, 2021 by Ginny Hallam

Does the UK’s departure from the EU have any effect on our data protection rules and in particular those introduced by the GDPR (General Data Protection Regulations)?

The short answer – no. The Data Protection Act 2018 continues to apply post-Brexit.

Great news for employers, but you’ll need to consider:

  1. Part of the Brexit deal included a provision that UK data protection was to be treated as ‘adequate’ up until 30 June 2021, meaning employers can continue to exchange personal data with other businesses in the EU up until this point.
  2. If the EU decide that from 1 July 2021 UK data protection isn’t ‘adequate’, you’ll need to have a written agreement in place with any EU business you exchange personal data with confirming that you will comply with EU data rules going forward.

Get in touch if you need to discuss any questions on the impact of Brexit on data protection, or your employment law processes more broadly.

 

This update is accurate on the date it was sent (22 January 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Misguided beliefs about consultants’ status?

Posted on: January 20th, 2021 by Ginny Hallam

Even if you’re not caught by IR35, you may face issues dealing with the unexpected employment status of consultants you work with.

From claims for unfair dismissal, holiday pay, unpaid pension, and redundancy pay, below we explain why it helps to understand fully the commercial relationship you have with your consultants.

With the forthcoming changes to IR35, it’s a great time to understand your consultants’ status and whether there are any risks of continuing to deal with them as self-employed. As well as the fallout from any unpaid tax (currently the liability of the consultant) if you find that your consultant isn’t genuinely self-employed, ending their employment could mean you’re faced with allegations of unfair dismissal. In addition, claims for failure to pay holiday, pension contributions, and redundancy payments, are equally possible.

So, using the introduction of the changes to IR35 as context to audit relationships with your consultants and address anomalies (whether you’re caught by the IR35 changes or not) could be a good opportunity for tackling latent issues. Waiting to identify the status of the consultant until the point you end your agreement with them may well leave you exposed to a greater chance of litigation and risk.

In our next update we explore how you identify whether a consultant is, or isn’t, self-employed for employment law purposes. Get in touch if you need support with challenges around employment status in the meantime.

 

This update is accurate on the date it was sent (21 January 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.