Contractor or Employee: Can you tell the difference?

It is not uncommon for contractors to quite happily agree that they are self employed and so benefit from preferential tax treatments and flexibility during the course of working and then, once the assignment is terminated, seek to make a claim for unfair dismissal on the basis that they were actually an employee.
It is therefore important that whatever the relationship, it is correctly documented in writing and the parties work in accordance with the contract.

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Redundancy: How to ensure a fair selection

A selection criteria is necessary in a redundancy situation when an employer plans to make more than one employee redundant and the employees chosen have the same job or interchangeable jobs, or the groups of employees perform identical work.

Therefore the very first thing that the employer must do is make a clear statement identifying the pool of employees from which the redundancies are to be sought, for example the marketing staff at head office or the fitters at the Ashford plant.

The selection criteria used by the employer must be carefully and exactly defined so that they can be fairly and consistently applied to each employee.

Selection criteria for redundancy may include some kind of measure of skills, qualifications, aptitude or performance.

When devising a selection criteria an employer should be cautious if s/he intends to include a length of service criteria or “last in first out” as this may expose the employer to an age discrimination claim.

There is also the risk of it being indirectly discriminatory against female employees because they tend to have shorter service due to, for example, breaks to have children.

If attendance is used as a criteria this could in particular circumstances trigger a disability discrimination claim. Care should also be taken to ensure that absence due to pregnancy-related illness and absence on maternity or other family-friendly leave is discounted.

Using the correct selection criteria can be the solution to keeping the best performing employees and making the poor performers redundant. It is likely that the pool of employees will probably contain both good and poor performers, hence if the employer’s aim is to target under performing employees the performance-related criteria should be weighted by a percentage factor.

Advertising: Age Discrimination

Employers should consider whether it is necessary to specify in an advert that a certain level of experience is required. A tribunal has found that an advert stating that a teaching vacancy “would suit candidates in the first five years of their career” amounted to indirect age discrimination.
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