Self-employment and other workforce dilemmas….

You may well have seen recent headlines about people whose organisation told them that they were self-employed but actually ended up not being – for example the recent cases linked to Uber, Deliveroo and Pimlico Plumbers. So what are the differences between being self-employed and employed?  Or for that matter being a “worker”?

Admittedly this can be a complex area and if you are in doubt or are being challenged by someone who works for you, you are always best to get expert advice.

However, there are some guiding principles and questions to consider when determining what someone’s employment status is. (ie. are they an employee, a worker or self-employed?)

  • Employees

Being an employee tends to be the “normal” form of employment status for many people.  They are directly employed by an organisation via a contract of employment.  This contract of employment outlines their role, responsibilities and entitlements while working for the organisation.  Legally all employees must be issued with a contract of employment (also known as a “statement of particulars”) within 8 weeks of starting with an organisation.  Failure to do this can lead to a financial penalty for the employing organisation.

Typically an employee works directly for the organisation they are employed by, in one of their workplaces, uses their equipment / facilities and is managed (or “controlled”) by them on a day to day basis.  For example, Fred has a contract of employment issued by XCo.  It outlines that he works in the office of XCo and is line managed and told what work to do by Jo, who is also employed by XCo.  If Fred doesn’t attend work, he doesn’t have to send someone else in his place.  As an employee Fred has certain entitlements or rights, such as being paid, being eligible to take paid annual leave and the entitlement to some form of sick pay if he is too ill to attend work.  These are outlined in his contract of employment – so hence it is an important document to refer to to ensure that Fred is being treated correctly.

  • Workers

In the recent cases with Uber, Deliveroo and Pimlico Plumbers the people who challenged their employment status were deemed to be “workers”.  All employees are “workers” but workers are not employees, even though there is some common ground.

A “worker” is defined as “someone who carries out paid work for an organisation but is not bound by or employed by a contract of employment”.   A simple example could be – Jane comes in to do some work tasks for your organisation during the school holidays but she doesn’t have a contract of employment with you.  She may be working via an employment agency (as a “temp”) or perhaps works directly for you.  If Jane doesn’t attend work, she doesn’t have to send someone else in her place but if she works via an employment agency, they might send a replacement. As a worker Jane has certain statutory rights such as she must be paid the national living or minimum wage (dependent on her age), she has the right to the statutory minimum paid time off and cannot be discriminated against. However, as she is a “worker” and not an “employee” she has no entitlement to unfair dismissal protection, redundancy pay or the right to request flexible working.

Confused?  There is further guidance online on the Gov.uk website that you might find useful.

https://www.gov.uk/employment-status/worker

  • Self-employed / Contractors

There is, or should be, a real difference in how self-employed people or contractors work compared to people who are employees and workers.  The fact there wasn’t a clear difference in the cases of Uber et al is part of the reason that the Employment Tribunal / Employment Appeal Tribunal ruled as they did.

The terms “self-employed” or “contractor” do not particularly make a difference when trying to determine someone’s employment status.  What is important is the arrangements for how they are “engaged” to do a task, how the task is carried and by whom, and how the work is paid for.  If someone is truly self-employed there is no contract of employment but there will be a “contract for services”.  The “contract for services” defines what work is to be done but allows the person or people fulfilling it the freedom to decide how best to carry out the work.  It may also mean that one person is substituted for another in order to fulfil the work, perhaps because they have a certain skill or area of expertise that is needed for a part of the work.

Self-employed people work for themselves and do not have a line manager in the organisation they are working for.  They typically provide their own equipment, such as tools, a vehicle or IT equipment.  A self-employed person invoices the organisation they are carrying out work for and receives the full amount of invoiced.  They have to declare this income and pay the relevant tax and national insurance contributions directly to HMRC via their annual tax return. Again this is not an exhaustive or definitive list and further information can be found at:  https://www.gov.uk/employment-status/selfemployed-contractor

The big advantage for hiring organisations is that self-employed people do not have employment rights – so are not entitled to things such as the national living wage or holiday pay.  The hiring organisation also doesn’t have to pay for any employers’ tax contribution, employers’ national insurance contributions or employers’ pension contributions.  These various contributions total up to a significant financial saving for the hiring organisation, so hence why companies such as Uber used the self-employed model to reduce their costs.

This is an area that remains under scrutiny as the government believes it is missing out on significant tax revenue due to people misusing the current system.  The government has recently announced a number of reviews to look at the issue of self-employment, particularly as part of the “gig economy” and for the public sector, in more detail.  There are bound to be developments so watch this space………….

Is in-house HR the best option for your Company?

Having worked ‘in-house’ for much of my career and more recently as a consultant, I’ve had seen both sides. This is particularly illuminated when one performs a detailed ‘access all areas’ HR audit.  Matching the needs of the business against the capability and remit of the HR function. Often it can be a bigger gap than anyone realises.

New role in HR – Work out what you need to do to fit in

When you begin a new role with a Company they are keen that you bring new ideas and change things. But many quickly realise that the most important thing to learn is ‘How they do things around here’. For in many companies not working that out quickly could mean one is not in post long enough to do more than just be new.

Companies by their very nature are insular. The individuals that do well are either the very brave and talented who do their own thing but bring in so much revenue that no-one cares. Equally those that are extremely corporate will have long and successful careers. Individuals that are very bright will move on naturally because there will be many options for them. Those that are clearly poorly performing will be moved on. But everyone else stays.

So, in that context the parameters of what ‘good HR’ looks like are set. This will almost certainly involve maintaining unique processes and ways of doing things. Quirky administrative approaches. Often long winded. And all the unwritten stuff about who gets fired quickly and how.  And what gets ignored or isn’t deemed officially important.

HR ignore half their customers

When a Company initiates an HR audit what they often want to know is how do we compare with our competitors? Do we have the right resources and skills in HR. Too much or too little? That answer is always unique to the organisation as often it is driven by individuals and/or the sector. If you have someone very senior that insists that HR is all about administration and problem solving and nothing more than that will dictate who you have in your function. If you are in a sector where you have high turnover and a lot of ER problems that may require some intense catch up before you move to a different model.

Companies have different motivations for HR audit from are we compliant (will I get my bonus?) right through to do we have the skills and talent in HR and the remit to achieve what the ambitious CEO and board want to achieve.  Often there is quite a gap.

And HR still exclusively focus their activities on ‘employees’. The self-employed, the flexible labour and the workforce of tomorrow are largely ignored which is a bit like only caring about the customers that visit your store and not the ones that shop occasionally on-line or could be buying your products.

Most HR process are substantially similar – not substantially different.

In an article written by Ruud Rikhof, Managing Partner of KennedyFitch he states “We believe that 80% of the activities in HR are substantially similar from company to company, not substantially different”. So, if it is substantially similar, why would you need it “in-house and customised” when you could pass it on to someone else, do it quicker and save money?

So many HR practitioners talk about Best in class. So many CEO’s don’t share these aspirations as they see such a process as long winded, expensive and distracting from core business.

Do ‘best in class’ processes you have contribute to the bottom line?

Whilst core HR processes should be agile and robust, they will never give your business a competitive edge. So, it’s wise to focus what resource you have on the things that will.

One of the issues about benchmarking your company’s HR needs against another is that whatever standard you use may not be the right one.

Your performance management system may have won awards and have some great technology with it – but does it drive performance?

You may have invested in a fantastic HR software system – but where are the reports and does anyone use or understand it apart from HR?

So, do you know what is right and important for your organisation and is that where you are directing your resources?

Individuals want an individual experience

When you go out to market to hire exceptional talent, the person you offer to is unique. You are excited about them joining and may even create a different package to get them on board. The CEO will take an interest in their on-boarding. But at that point the individual approach begins to wane. HR will get anxious that the Company is being inconsistent and will want the new hire to be treated the same as everyone else.

We have observed that increasingly individuals demand that they are treated as individuals. It’s often a deal breaker. Yet in-house HR activities are focussed on treating everyone the same.

What are the alternatives?

Many companies value their long serving loyal HR administrator. Key thing is to ensure you have the right level of senior HR challenge and expertise.

Equally you can contract out the administration, investing in a good system and employ a bright career hungry HR professional to work with your leaders and focus on the big things for your Company.

Many companies have an Employment lawyer on speed dial which absolutely supports the reactive problem solving risk adverse model that is hardly likely to have your HR function doing things differently.

Of course you can have both. HR lead in-house and HR admin in house. But that then results in what many businesses have now. A cost centre that stops more than it starts and manages problems.

Getting your HR capability right can be a powerful tool for increased competitive advantage. Especially in a challenging market

 

www.amelore.com