Who is an employee?
A slippery pole for lap dancer.

The question over who is an employee has always been a tricky one. Generally speaking if you tell someone where to work, when to work, how to work, what they will be paid and provide them with the tools to do their job more likely than not they will be an employee.

In the case of Quashie v Stringfellows, Miss Quashie was a lap dancer who was told that she had to work a minimum of three shifts per week, told that she had to work topless and wear nothing more than a garter and G-string, told how much to charge per dance and told not to handle cash. Despite this she was not an employee.

There had been a contract, entered into with Stringfellows within which they purported that Miss Quashie was self employed and set out details as to payments that were to be made to the club in respect of attendance fees, commissions and fines. The tribunal found that on the facts of the case there was insufficient evidence that the contract was illegal and so found her not to be an employee.

Companies must use this case with extreme caution as and be aware that if they do not want someone to be a member of staff, they must ensure that there is sufficient information and detail contained within a contract for services.

Who Cares? Time off for Dependants

As the cold and flu season is well and truly underway, its important for employers to bear in mind that employees don’t have to be ill themselves to have time off. All employees, regardless of their length of service, have the right to take time off, unpaid, to deal with an emergency involving a dependant. This should not be confused with parental leave.

Who is a dependant?

An employer must be aware that a dependant doesn’t necessarily have to be a child, it can be a husband, wife, partner, anyone living in the same household as a member of the family or someone who reasonably relies on you for help in an emergency, such as an elderly neighbour living alone.

What is an emergency?

An employee will not be able to take time off to deal with a broken boiler but equally an emergency doesn’t mean that there has to be a serious or life threatening incident. It can be for example where a dependant falls ill, where a nursery or school is closed due to bad weather, or where a dependant has been suddenly injured or dies.

How long and how often can they have off?

There is no limit to the number of times an employee can take off but you can of course monitor things and so your policies should be clear and consistent. You must allow a reasonable amount of time to deal with the emergency. The time off may vary depending on what has happened, although 1-2 days would normally be sufficient but a common sense approach is always best.

Although the right to time off is unpaid, an employer should use their discretion to pay an employee particularly where employees can work flexibly from home.

The End of The Golf Day?

The Bribery Act 2010 will come into force in April 2011 and it will create four new criminal offences. The importance of this to businesses is that one of the offences will mean that individuals found to be involved in bribery can be subjected to imprisonment and an unlimited fine.

To ensure that employers don’t fall foul of the Bribery Act, they must take immediate steps to assess whether their businesses are at a high risk of being the subject of corruption or if they do business with high risk countries, such as India, China and Russia. They must also ensure that they have clear, practical and accessible policies and procedures on anti corruption.

Although large companies do generally have anti corruption policies already in place, it is estimated that approximately 95% of the world’s business is carried out by small to medium enterprises (SME’s) who do not have the same financial and human resources. It is the SME’s who are likely to need to amend, for example their disciplinary procedures and their Whistle blowing procedures to ensure that bribery and anticorruption are dealt with appropriately.

Although there is currently no set definition of bribery one area that is going to be questionable for any business is the giving and receiving of gifts and the use of hospitality.

In reality where an event such as a golf day is used as a marketing tool and representatives of a number of companies go along, it is unlikely to ever be construed as bribery. Caution must be exercised in respect of the initiation to golf from the prospective customer where you will be the only person. For that reason all employers must ensure that they have a strict policy on the acceptance of gifts and hospitality which is applied to all staff, including directors.

Plug The Hole

I was recently contacted by a horrified small businessman who had read an article in the Heating and Plumbing Monthly. The article told the story of a parent of a student plumber approaching a business and asking if they would allow him to do some unpaid work when he was not at college so he could gain some experience. The business was not in need of additional staff but he would not need paying so what harm could it do? It was arranged that he would do a couple of days per week. At the end of the college course the lad requested an apprenticeship but the firm had no need of an apprentice and the lad left amicably. What a happy story. Unfortunately HM Revenue and Customs then visited and wanted to know why he was not paid the minimum wage. The result was a large bill and an additional 50% penalty for the breach of the Regulations.

Many businesses are asked each year to take people for work experience. It is encouraged by government and schools alike. However if any work is done rather than mere spectating and as is normal some hours are set aside for this, then it becomes likely that the student will satisfy the legal definition of a worker so that certain statutory rights will apply including of course the right to be paid the minimum wage. Rights relating to the protection of wages, the right to be accompanied at a greivance and disciplinary meeting, the right to holidays and other working time requirements could all become relevant.

If therefore the arrangement is work shadowing there is no problem. Once you start asking them to do things which could be considered as work such as perhaps making the tea then beware.