Contractors, Discipline and Suspension

Welcome to this two minute HR Blast. You may remember how the UK was a hotbed of Jeremy Clarkson/Marmite fever – if we can call it that! Love him or hate him…either way he always makes the headlines.

With our HR hat on though, this whole chaotic mess begs a few questions around the management and discipline of contractors for, despite what has often been reported in the press, Clarkson is a contractor and not an employee of the BBC. We also take a brief look at the issue of suspension…

Contractors/associates

Fast becoming a major issue for many organisations with the rapid increase in numbers of individuals setting up in business as consultants, freelancers, associates, contractors, solopreneurs etc. PLUS more and more organisations choosing to use contractors rather than increase headcount.
Usually work under a contract for services, rather than a contract of services (employment).
Usually not subject to an organisation’s disciplinary or other procedures.

The Clarkson difference

The BBC includes within every contract for services, a requirement to abide by the BBCs Bullying and Harassment Grievance Policy. Unfortunately for Jeremy Clarkson this policy only came in last month so he has quickly become its first ‘test case’.

The Bullying and Harassment Grievance Policy was introduced after consideration of how to make the BBC more transparent following criticisms over the handling of complaints such as around Jimmy Saville.

Managing contractors/associates

When does a contractor become an employee?

It’s easy for a manager who is not very employment law aware to treat contractors in such a way that an employment tribunal might view them as employed. For clarity, contractors should not, be treated as employees! This is a mistake that can be very expensive if the employment relationship breaks down. In our experience at Jaluch, mistakes happen in many ways including for example:

The management of absence such as insisting on return to work interviews, medical reports.
Letters and documents sent out that mistakenly use the word employee or employment.
Employment policies wrongly being applied by managers to contractors.
Insufficient differentiation in treatment, including provision of benefits and management.
Lack of clarity in treatment including blurring the lines by agreeing to pay a contractor through payroll.

Managing the discipline of a contractor

Have clear termination notices in the contract for services – both for non renewal and termination in the event of a discipline issue.
State whether any of your employment policies apply to contractors (e.g. equal opportunities, anti-bribery).
Manage the relationship by reviewing output with them on a regular basis.
If you’re going to suspend them, ensure any period of suspension will be without pay.

Balancing sensible workforce management and commercial needs

Whether employees or contractors have stepped out of line…

HR should aim to support business decision making, not lead it without reference to any other department. HR does not exist in a bubble, it has to be part of a whole process which includes operations, finance, customer service etc.
HR should not be able to rely on implementing process and procedure, if they cannot demonstrate they have considered the implications for the wider workforce and business continuity.
An over reliance on process and procedure will seldom make for sophisticated decision making. It can also encourage very lazy decision making.
Don’t blame HR for their lack of commercial understanding if no money has ever been invested in developing their commercial understanding. The HR team needs training too.

How long should a suspension be?

For an employee, full pay is required for whole length of suspension. This means that most private sector organisations suspend, investigate and dismiss (or discipline) in less than a month. How does your organisation compare to that?

Suspension, shouldn’t also be a knee-jerk reaction, it should be imposed only after consideration is given e.g. the impact of the employee’s attendance at work may influence and pressure key witnesses before the hearing.

Most contractors will not need to be suspended pending an investigation into alleged misconduct but if you do, your contract should exclude any requirement to pay full pay during this period.

We often hear in the press of very lengthy suspensions of head teachers, NHS doctors, social services employees, employees involved in fraud etc. From our experience, most of these lengthy suspensions are totally unnecessary. No reason at all why an investigation shouldn’t just take a few weeks, or a few months at most, provided you treat it like a priority and review it on a regular basis

These are the factors that Jaluch believes impact investigations that then result in very lengthy suspensions e.g. of a year or more…

Organisation drags its heels and doesn’t prioritise doing the investigation (i.e. incompetence).
Police involvement and police recommendation to suspend pending outcome of criminal trial (often we would advise to suspend, investigate and discipline or dismiss before notifying police to avoid huge salary payments during a lengthy suspension).
The organisation has never had to watch the pennies before, so could pay full pay indefinitely with no detriment suffered by organisation (lack of commercial awareness)
Unions slow down and complicate process, particularly with organising meetings (just need to appoint someone who will drive it forwards and not be slowed down by the complexity of involving more people).
Fear of being accused by a tribunal/the media of not being thorough in investigating -but just because it takes 4 months not 4 weeks, does not make it more thorough! (lack of HR accountability, confidence and competence).
Fear of making a decision results in no decision being made (time to tackle the thorny issue of why your organisation has an established blame culture and what you can do about that).

What is the downside of a long suspension?

Full pay is paid to all employees suspended. Sometimes they are stuck at home on full pay for a year or more and two years is not unheard of. A ridiculous waste of money.
Bad for employee relations and employee morale when issues go for so long unresolved.
Bad for victims of those being investigated to have matters unresolved.
Bad for those stuck at home and unable to seek employment elsewhere, can result in depression, stress and a long term loss of confidence essential if eventually they are to seek a new role.
Those involved such as witnesses may leave their roles and move elsewhere making it harder and harder to reach a fair and sensible outcome.
What does it say to staff about the competence of their leaders.

And finally

In the BBCs in house magazine, one employee is quoted as saying:

“There are only so many warnings the BBC can give one person. There is a lot of great talent in the BBC; let’s not make one man a god”.

This employee won’t be the first who believes that treating people consistently and in line with agreed policies is more important than revenue generation. It can be a tough call, but the reality is that revenue loss for any organisation is extremely serious and most employees do not have the financial or commercial awareness to be able to make the call.

In this case, when we appear to be talking about a loss of temper in the heat of the moment that resulted in one punch, let’s hope that that employee feels the same when the financial squeeze comes as a result of revenue loss to the BBC that could well be in excess of £100M – and that’s not monopoly money we are talking about, but money that pays for salaries, pensions, employee welfare, buildings and investment in new programmes.

We really don’t envy the person who ultimately decides whether Clarkson is in or out…..what a massive responsibility.

Like what we do and how we do it? Here’s how you can tap into our services:

Training services from Jaluch

Practical HR Skills – Designed for those who want to learn some of the essential HR skills. Great for those new into HR.

Managing Discipline/Managing Grievances – Training kits: training content created by us and available to you to deliver in house using your own resources – an incredibly cost effective way to develop skills.

Diversity and Inclusion or Unconscious bias Workshops and training sessions for staff, e-Learning on unconscious bias also available – a very cost effective way to spread the knowledge.

HR support services

Investigations and formal meetings: use us to provide a great additional resource for your team.

Employment documentation: ask us about drafting or reviewing employment contracts, policies or service agreements.

Take a look at our HR services page for more info.

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.