Tag Archive for: Law

Home | Law

Banter in the workplace can help build good working relationships amongst staff, but with a 45% increase in tribunal claims relating to workplace banter, it’s clear the lines between banter and harassment are getting increasingly blurred.

A few years ago a company asked us to deliver some training for their staff on the subject of workplace banter. They had identified that in a particular area of their business, things had become a little bit too well, bantery, and they were concerned that the invisible line we all talk about was in the process of being trampled over.

According to recent research conducted by employment law firm GQ Littler, they were right to be concerned. The number of tribunal claims relating to workplace banter has increased by 45% in the last year. 

The statistics refer to the number of claims where ‘banter’ was an integral part of the employers defence, the ‘it was just a bit of banter’ defence.

What Does the Law Say About Banter?

As you might imagine, the term ‘banter’ is not one that is defined in law. 

The Equality Act 2010 prohibits less favourable treatment on the grounds of ‘protected characteristics’, namely sex, race, sexual orientation, age, disability, gender reassignment, pregnancy and maternity and marriage and civil partnership. 

Employers need to be concerned as they can be vicariously liable for the acts of their employees. In simple terms this means a claim can be brought against the employer and the employer can be held responsible and ordered to pay compensation. 

What Are the Common Issues?

Often, the sorts of issues that can give rise to unhappy employees are jokes or nicknames that are intended to be, and often are funny. However, the reason it’s tricky is because, as Joe Lycett recently found out when a member of his audience reported one of his jokes to the Police, what one person finds funny, another can find offensive.

So how can employers create the right balance of creating a workplace that encourages a collegiate atmosphere where people get on well and develop relationships but don’t offend one other?

Best Practice

In truth, employers probably need to accept that their staff are not going to get it right all of the time. But there are things employers can do to help (and minimise their potential liability if it does go wrong). Suggestions include:

  • Set the right tone – it’s got to start with senior staff and line managers. If they are not behaving in a respectful and appropriate way, it will inevitably lead to problems.
  • Create an environment where people are confident to call out or challenge behaviour they find upsetting or offensive. Often things deteriorate when they are allowed to fester. If people feel comfortable to speak up then issues should hopefully be easier to resolve.
  • Ensure managers are skilled in having difficult conversations. It is a skill and it can be learnt. Things rarely improve if they are not addressed.
  • Consider how you incorporate the types of positive behaviours you want to see from staff into your core values or a company charter. It is one thing having a dignity at work or bullying policy for when things go wrong but implementing these things can be a more proactive and positive tool.
  • Offer staff training, either on induction or as part of a more general training agenda. It does no harm for any of us to be reminded about these issues and it can be a helpful reset button if you’ve identified that there is a problem.

Our team are experienced in offering bespoke staff training for a variety of organisations. Please get in touch if you’d like to discuss training on workplace banter, managing difficult conversations or your other training needs. Please contact Sarah Martin on 07799 136 091.

Home | Law

TV presenter Adrian Chiles’ recent victory over HMRC in IR35 case has highlighted the complexity of the IR35 rules in the UK. 

Since last April private and voluntary sector businesses with an annual turnover of over £10.2 million, a balance sheet worth more £5.1 million or more, and 50 or more employees, will be responsible for deciding whether IR35 applies, and for deducting tax and NICs from contractors’ fees paid through intermediaries when it does not. 

There are a number of steps that you should be taking in respect of that and it is always worth getting specialist advice on this if the need arises. 

IR35 Considerations for Your Organisation

The first step is to decide where the responsibility for dealing with IR35 lies in your organisation, this is a matter that often straddles HR and payroll/finance and you need to make sure it doesn’t fall between the two stools.

The next is to create a list of who your organisation is contracting with, as IR35 applies to those who provide their services through a limited service company or via a supply agency. 

The next stage, and probably the most challenging, is to decide which of your contactors falls inside IR35. HMRC have provided an online tool which can assist but it may not be determinative, in which case it might be worth taking specialist advice. 

ELM-Banner

The Three-Part Test

HMRC applies a similar test as Employment Tribunals to determine employment status, but they often arrive at different conclusions on the same individuals, and it’s worth remembering that a Tribunal decision is not binding on HMRC and vice versa. The test is as follows: 

  • Mutuality of obligations – The individual agrees to provide work, in return for a wage for the skill and work that they provide.
  • Control – The individual has given express or implied willingness to be under the employer’s control.
  • Other factors – The other terms and conditions are consistent with a contract of employment, such as ownership of significant assets, financial risk, or opportunity to profit.

Although a three-part test, traditionally the first two elements have tended to be considered to be the most important. Until recently that is. The sands may have shifted slightly, following cases involving high profile TV presenters who claimed to be working freelance, including for the BBC and ITV. HMRC challenged their employment status and, in the recent case involving the presenter Adrian Chiles, HMRC lost because of the third part of the test. 

What Does This Mean?

Now, it’s clear that it’s worth focussing on the third part of the test, we should think about some of the relevant factors which can include:

  • Is the individual in business on their own account? 
  • Does the individual use their own office, including working from home? 
  • Does the individual provide their own tools? 
  • Does the individual provide services to a significant number of other clients?
  • What percentage of total income does that end user contribute towards the individual’s financial earnings?

Employers, contractors, freelancers and consultants alike should take comfort from the shift in focus with, it would seem, greater significance now being placed on the bigger picture. However, this can be a complex area so we recommend seeking advice.

Please contact Jo Bradbury in the NQHR team on 07570 372118 if you would like to discuss these issues.