Whistle while you 'worker'

Not infrequently, I find myself pointing out to employers the risk of using self-employed consultants.  You may call someone self-employed and they may agree to it, until you have a falling out.  At that stage, they start to scream they’re an employee and have been unfairly dismissed.

What more frequently passes ‘under the wire’, is the question of whether such people qualify as workers.  A worker is not an employee, but they do have rights.  These include the right to holiday pay and not to have unlawful deductions from wages.  A worker is anyone who works under a contract to perform work personally for another person, where that other party is not their customer or client.  The question of whether a person is a client or a customer, thus removing an individual’s worker status, can sometimes be difficult to determine.

In the case of Hospital Medical Group Ltd v Westwood the Court of Appeal provided timely guidance.

Mr Westwood was a senior partner in a GP’s surgery.  He provided hair restoration surgery to HMG Ltd.  Mr Westwood had no obligation to carry out work and HMG Ltd were not obliged to provide it.  So he couldn’t be classed as an employee. 

Mr Westwood ran his own surgery and undertook work for another clinic advising on trans-gender issues.  He was paid a percentage of the fee received from the patient by HMG and, for all purposes, was treated as a self-employed independent contractor.

HMG Ltd brought the arrangement abruptly to an end.  An unhappy Mr Westwood went to the Employment Tribunal who held he was a worker.  They upheld his claim to holiday pay and unlawful deduction from wages.  That is to say, the payments he hadn’t received from the company.

Matters went as far as the Court of Appeal. They agreed Mr Westwood ran his own business.  But they said he had three distinct businesses, one of which was the hair restoration service he provided to HMG Ltd.  The court had to decide whether HMG qualified as a customer or client, with the result that Mr Westwood would not be a worker.

They applied the “Integration Test”; To what degree were the services of Mr Westwood integrated in the business of HMG?  The court decided the company was not just another purchaser of Mr Westwood’s medical skills.  He had contracted specifically and exclusively with it to carry out the relevant services and had done so separately from his surgery and other work.  Mr Westwood was an integral part of HMG Ltd’s operations, even though he was in business on his own account.  By example, he was referred to as one of the company’s surgeons in their marketing material.

This is a point many businesses, who wish to appear bigger than they are, should heed.  If you represent to the outside world that someone is part of your business, then you may find the courts agreeing with you.  The end result being your self-employed contractor acquires  rights you hadn’t planned to provide.

The Court of Appeal rejected HMG Ltd’s claims that a party must be a customer or client if it contracts with an individual who is in business on their own account.  Such an interpretation would exclude all people in business on their own account from being workers.  If this had been Parliament’s intention, then the legislation would have said so.

There is a common misconception that if an individual has their own business, they cannot be an employee.  Some people also take the view that if a person has more than one job, they cannot be an employee.  If this latter were the case, then no part-time employee would ever have employment law rights.

The important lesson to learn is not what other business interests a contractor may have, but what the nature of their business relationship is with you.

Whatever you say in writing, the courts are well aware there is a world of difference between the written word and what happens in practice.  Life rarely does ‘what it says on the tin’.

Queen Victoria or Ena Sharples ?

Is Death to be embraced or should you spend your life in mourning?

For those less grey haired than me, Ena Sharples was an early stalwart and busy body on Coronation Street in the 1960’s.  Think Dot Cotton from Eastenders.  Queen Victoria - who was never on Coronation Street but coincidentally plays a pub in Eastenders - was as the name implies Queen of England during Victorian times.  You can’t beat having an age named after yourself!

Ena and Vicky had sharply different views on death.

An early 1960’s episode of Coronation Street involves a conversation between Ena Sharples and her then sidekick Martha Longhurst.  Ena says she feels ready to go to the cemetery and would like to go the way her mother did.  Martha responds that Ena’s mother had a beautiful ending, to which Ena replies; “Lovely, she sat up, broke wind and died”.

To talk about death in such an open manner in 1960 seems a little advanced for its time.  Having said that, people born at the beginning of the 20^th Century had far more experience of death, particularly during infancy, than we ever have now.  Life expectancy in 1900 was 51.  It’s now 79. 

Queen Victoria became a widow at the age of 42.  She spent the next 40 years of her life mourning her 'dear' Albert’s death.

Albert was an extraordinary character. He reformed and modernised university curricula, staged the Great Exhibition, had 9 children with Victoria (clearly no slouch between the sheets) and gave us the Christmas tree.

He led a short but rich life.  How different it would have been if she'd spent those years celebrating his legacy and not mourning his death. Yes death is sad and we should mourn. But I'm sure Albert would have wanted her to live her life as well.

So which camp are you in?  Ena Sharples or Queen Victoria?

Want to discuss this and other issues more? Do you like cake? Then come to the Death Cafe on the 24th October. See blog entries below for more information

WHAT RIGHTS FOR SURROGATE PARENTS?

While there is an ever-growing body of protection for parents who give birth or adopt, what rights do surrogate parents have?  Not many.  They aren’t covered by maternity or adoption legislation.

That may all change.  Two claims are currently in the High Court lodged by Surrogacy UK and a woman directly affected by her lack of protection.  She  was made redundant while taking unpaid parental leave, following the birth of a child through a surrogacy arrangement.

She had brought a claim under the Human Rights Act 1989 claiming she was discriminated against.  She was not entitled to any statutory paid leave, nor given employment protection while off caring for her son.  Judicial review proceedings have been commenced.

Watch this space !

What a beautiful ending?

Coronation Street Episode 2 1960

The topic of conversation in the Rovers snug is death.

Ena Sharples: Sometimes I think I am bout ready to go down to that cemetery.

Martha Longhurst: Really?

Ena Sharples: I would just like to go the way me mother did.

Martha Longhurst: Ooh, that were a beautiful ending.

Ena Sharples: Lovely - she just sat up, broke wind, and died.

 

How would you like to go?

 

 

An evening of life, death, cake and contemplation

24^th October 7.00 pm - 9.00pm

At the Woolpit Institute (1^st floor)

The Street, Woolpit, Bury St Edmunds IP30 9QN

 (The Institute is located in the village centre. Directions at www.woolpit.org)

What is the Death Café?

At Death Cafes people come together in a relaxed and safe setting to discuss life and death, drink tea and eat delicious cake.  The objective of Death Cafe is "To increase awareness of death with a view to helping people make the most of their (finite) lives".

"Somebody should tell us, right at the start of our lives that we are dying. Then we might live life to the limit, every minute of every day. Do it! I say. Whatever you want to do, do it now! There are only so many tomorrows." - Pope Paul VI, Italian pope, 1897-1978

The idea of running Death Cafes came from the work of Swiss sociologist Bernard Crettaz. Jon Underwood has brought the idea to the UK.  The first Death Cafe took place in Jon's basement in September 2011. Since then Death Cafes have been held in the Royal Festival Hall, a yurt, cool cafes and people's houses. Over 200 people have so far attended a Death Café in the UK. The events have invariably been very special and feedback has been fantastic.

Death Cafes are always offered:

On a not for profit basis though, to be sustainable, we try to cover expenses through donations and fundraising
·      

In an accessible, respectful and confidential space, free of discrimination, where people can express their views safely

With no intention of leading participants towards any particular conclusion, product or course of action

Alongside refreshing drinks, nourishing food – and cake!

RSVP if you would like to attend (so we know how much cake we need!)

For more details call Nigel George on 01449 737582 or email nigel.george@keme.co.uk

Want to know more about the Death Café? Go to www.deathcafe.com

Water on Mars - signs found of prehistoric Trout?

According to unreliable sources at the Borley Green Space Centre the finding of an empty Mothers Pride bread rapper (much loved by anglers to keep their sandwiches in) and what could have been the remains of a fishing float have led to rampant and wholly unwarranted speculation that the rivers of Mars were once full of Trout.
     Watch this space for more groundless claims on what NASA is refusing to tell us!

Don't speak ill of the living dead!

So Obama delivered a pants performance in the debate with Romney. I'm reminded of how impressed we all were by Nick Clegg's performance in the debates we had. How wrong we all turned out to be.
    "You can talk the talk, but can you walk to the walk?" I don't think anyone would seriously suggest Clegg could do both at the same time.

Mary Poppins and the minimum wage

Is your au pair entitled to claim the minimum wage? Currently £6.19 per hour if she’s over 21.

     It can be a time consuming process removing all the eggy bread, pasta etc. that your little darlings may throw to the floor with gay abandon.  My kids worked on a one in three ratio when they were small.  Eat a mouthful, throw the next one on the floor and smear the third over their face, body or any other surface in easy reach.  So if you're paying for every minute they spend looking after your little treasures it can soon mount up.

     The Court of Appeal have been asked if the minimum wage can be claimed where certain tasks are not shared with the family?  In Nambalat v Taher & others they came up with a big fat NO!  Provided you treat them as part of the family and not just some skivvy to be exploited at will.
    The National Minimum Wage Regulations say domestic workers and au pairs can’t claim it if they live in the family home, get free board and lodgings and are treated generally as part of the family.
    However if you take the Cinderella approach to your domestic help then the situation may be different.  So the next time you’re considering asking the kids nanny to spend the evening cleaning your car as opposed to joining in the family meal think twice!

Is talking about death morbid?

My good old Oxford English dictionary tells me that morbid means:

'an abnormal and unhealthy interest in unpleasant subjects especially death and disease'

Can you have a normal and healthy interest in death and disease? Doctors have an interest in both and no one would call them morbid. Their interest lies in preventing both. Very normal and healthy.
      What of the rest of us? Death is still regarded by many as a taboo subject, not to be discussed. Let us not tempt fate. If we don't want to tempt fate should we stop insuring our houses against fire and flood? Most of us do and our houses don't burn down or disappear under water as a result.
       Similarly many people don't make a will for the same reason. I can confirm that most of my clients go on to live long and happy lives after making a will. They have the added knowledge they've carried out some planning for when they die.
        So discussing a subject doesn't make it a fait accompli. Since I've embarked on this journey to the 'dark side,' I've come to realise how much light it throws back. The Egyptian question on death, 'did you bring joy to the world and did you find joy,' is one we should ask ourselves everyday.
        I tweeted the other day about a great blog entry by Lizzy Miles, who runs the Death Cafe in Columbus Ohio. To paraphrase she said 'The Death Cafe gives people the space to have the conversations we can't seem to have anywhere else. It gives people an opportunity to share their stories and that's what makes it special and beautiful.'
       So is talking about death morbid? No. It's not always an easy subject to discuss, but for some of us it's very important to be able to say what we feel about it. For others its never a bad idea to consider our own mortality and the value of doing things in life while you still can.

I'm running Suffolk's first Death Cafe on the 24th October. See posts below for further details.

What would you spend $2.5 billion on?

NASA has sent its latest space probe, Curiosity, a vehicle the size of a small car, to Mars to look for signs of life. For most of us, signs of life mean the lights on and the sound of a TV set. For NASA its detecting the presence of microbes that lived billions of years ago.
     As Dr McCoy would have said; 'It's life Jim but not as we know it.'
     If they'd gone in search of little green men (or women) - why must aliens be green? The Moon isn't green neither is Mars, do we have any green planets? I digress - it might have been worthwhile. But to spend oodles of cash looking for prehistoric signs of life that are equivalent to something nasty at the back of the fridge does make me wonder?
     If you had $2.5 billion what would you spend it on?