The Tribunals and Gender Recognition Statistics have recently been published for the period January to March 2018.
The main headlines are:
*All statistics compared to the same period last year (January – March 2017).
What does this mean?
There is a clear rise in (or simply the return of) an appetite to litigate amongst employees. This, in the main, is due to the removal of employment tribunal fees, which were considered by many as a barrier to justice. Since their abolition, employees and workers alike are free to raise claims at an employment tribunal without the financial consideration previously required.
Now, more than ever, employers should ensure their processes, procedures and documentation are up to date and more so, reflect the true working arrangement agreed with employees and/or workers. For example, there is no point engaging individuals on a casual worker agreement, when in reality, they are employees. There, the individuals should be issued with a contract of employment and treated in a manner that is consistent with an employment relationship. Failure to do so may cause unrest, uncertainty and expose businesses to multiple claims.
Having dealt with a range of clients from different sectors, it is not uncommon for employers to hold a misplaced belief that an individual is a worker, rather than an employee, and therefore considered “lower risk”. There are fundamental problems with that approach, but in the main, it is worth noting the following:
- Workers should not be considered as lower risk or lower ranking members of the work force. They often provide flexibility and short-term solutions to companies thereby complementing business models and enhancing service delivery. Treat them differently and you may dissuade workers from engaging with or providing services to you; leaving others (who treat them lawfully, fairly and reasonably) to prosper and thrive within your competing market. Very rarely do you read headlines praising businesses for how well they treat their workers but we all remember the stories about those who don’t!
- Workers have exactly the same rights as employees in many respects. For example, they have the same rights and level of protection in relation to the national minimum wage, discrimination, holiday entitlement, statutory sick pay, unlawful deductions, maternity, paternity and adoption pay, limits on night work and rest breaks (to name a few!) – so, treating them differently (or thinking you can) exposes your business to risk . A prime example can be seen in the less than concluded matter of the gig economy.
Lawyers naturally prefer to have sight of written, documented evidence that supports a legal argument or factual position. If there is a particular arrangement or agreement that you have made with an individual (e.g. to pay back training costs, to leave early every other Friday) such arrangements should be reflected in a contract of employment or separate agreement to ensure that you can rely upon its terms and enforce what has been agreed. It is far easier to refer to a contract of employment, variation letter or anything supplemental in writing that has been agreed and signed by both parties to help prove a point. The alternative, in the event of a dispute, is for both parties to provide oral evidence of what they each believed was agreed – that leaves a greater degree of uncertainty, which is naturally less than ideal.
Unsurprisingly, with any degree of uncertainty or factual dispute comes an increase in risk, management time and costs. Therefore, it is always recommended that notwithstanding the basic terms and conditions required in an employment contract (or a worker’s agreement), anything particular or unique to the relationship should be reflected in a written agreement at the commencement of any working relationship and varied as and when the relationship evolves.
So, why does this matter?
With the return of the litigious employment landscape, employers (or companies engaging workers) should ensure they get at least the basics right. They should do all that they can to ensure their paperwork (contracts, handbooks, agreements, offer of employment letters, return to work forms for example) is in order, up to date and accurately reflects the working relationship agreed from the outset. Failure to do so will not only expose employers to risk, but may hand over what could have been a winnable case to an employee (or worker) on account of there being insufficient evidence to support the employer’s factual or legal position.
With that in mind, is it time for an audit, update or complete refresh of your employment documentation or working practices? The HR and the employment sphere is vast and ever expanding, but if your foundations are solid, it stands you in good stead for anything else you may have to deal with in future.
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