Right to an employment tribunal

[Leftie]

I had an interesting chat with a contractor this week. I think he may just be a softie on this and trying to blag his way out, but this is the story;

I did some employee survey work (you know the thing "my boss listens to me.." kind of questions). Anyway, during that work we identified a problem with some external consultants who are brought in via a contractor to advise staff on career planning etc. Each one has about 50 people they advise and in some cases they don't do a very good job. They have an annual contract via the contractor for so many hours per employee per month/year.

Armed with a list of which consultants served which employees we were asked by our client to backtrack the survey and identify who the crap consultants were. Accordingly our client pulled the contractor in and roasted them over [patchy performance of consultants.

I met the contractor this week and asked if he would like to do this again this year with a view to performance managing his consultants (who are all self employed) through the nest survey. He was horrified and said that there were data protection issues with us gathering personal performnace data without their knowledge ( which I kind of agree with) but when I suggested telling them we were doing it, why and let them see the results, he retreated further, suggesting that if he ended a consultant's contract based on the ratings of performance of the consultants given by the 30 out of the potential 50 employees per consulatnt who had responded they could take us both to an employment tribunal (ET).

My understanding was that to have access to an employmnet tribunal you had to be an 'employee' or perspective employee and that the contracted consultants were just that, self employed tradesmen just like a plumber or electrician. I was just seeing if the customers were happy with their work and if not they might decide not to renew their 12 monthly contracts with that consultant. They may need to put the PM in their formal contracts but if the contract was terminated I didn't think an ET was open to them.


Has he got a point that they have aces to an ET or is he just running scared and afraid of having to address the performance issue do you think?

[justinp1]

If you are SELF employed, then there is only one person you could hope to have a tribunal with!

...and its not anyone you might contract yourself out to.

[Tor.Duff]

They do have the right to a tribunal on the grounds of breach of contract. If they lose work because of anything you have done along the lines that you have described, they would also have a case against you. Maybe not at an employment tribunal but certainly in court. Something along the lines of 'interference with a contract'. If the guy who is supplying them is concerned about their performance then he has to put some kind of review into place himself.

These 'contractors' are not necessarily self-employed. A lot of temps are incorrectly classed as 'contractors' by the agency who supplies them. The Employment Appeals Tribunal has been very busy sorting this kind of thing out these last few years.

I'd back off, if I were you.

Cheers

[RichBurley]

Tor is quite correct, that they *might* be designated employees, even if they work and are "known" as contractors. However, performance analysis of someone who benefits from the contractors work is quite reasonable and if you want to ensure that they are good enough by assessment, then that is perfectly fine. That is not unfairness.

However, there may be dodgy ground, if as a result of the assessment, which might be right or wrong in it's conclusion, some of the contractors miss out on work. I don't think the contractors would have good standing though. If they are deemed as employee's then it wouldn't be their employer refusing them to work, but another third party.

[Tor.Duff]

Rich

If they are "employees" of the contractor supplying them to workplaces then the contractor would have to offer them alternative work or go through the process of dismissal/redundancy. If they are denied work on the say-so of the third-party, i.e. the person the contractor is supplying them to, then they can ask an ET to find that they were, for the purposes of their dismissal, employed by the third-party. ETs have so found in the recent past.

Also, if the people concerned find out what's going on, especially the data protection issues, they could quit and claim "unfair dismissal".

[Jasper Gilder]

If these people were employees - which they aren't, it would be potentailly fair for them to be dismissed as a result of third party pressure which is a potentially fair reason under Some Other Substantial Reason. Obviously the client has the right to interest himself in the quality of the work he has contracted in and if not happy to ask for changes.

As they aren't employees ( unless there is some IR35 stuff in the background)they can't apply to an employment tribunal. The test to see if they are employees( among others) is mutuality of obligation - is the 'employer' obliged to provide work, and is the 'employee' obliged to do it. Other questions cover the regularity of payments and the ability of the 'employee' to work for others

Looks to me as if the supplier doen't really know if his people are employees or not and may be trying to use this stuff as a ruse to get th ecustomer to accept sub-standard work.

I'd find a new supplier

Edited by Jasper Gilder on Friday 18th May 11:49

[stevieb]

Leftie,

there are Data Protection Rules, but handled the rightway then this should be a problem for repating the survey etc.

But regarding the Tribunal, if he is a self employed contractor i do not see how he can have the right to a tribunal. If there is a problem with him loosing his contract then that would be a legal issue dealt with by his solicitor and not a tribunal.

But regarding assesing each cosultant, i see this survey serving a good purpose for your client, by measuring there percieved performace based on the people they are mentoring/advising. In my view i would see this as a 360 degree appraisal of there performace

Steve

[Leftie]

As I understand it the consultants have a contract for X days a year at Y rate. They have some constraints ( Z days every 3 months) but when and how they do it is up to them. They all provide their own equipment and work elsewhere for other organisations. All this suggested to me that they were not employees.

The client organisation has a contract with the supplier, which includes a QA requirement, which todate has been pretty ineffective because the work they do is mainly by phone or email with less frequent face-to-face contact so sitting in on sessions isn't easy. They did do a small scale survey of 2 or 3 random users per consultant as the basis for 'QA'. As we typically sample 30 or 40 users per consultant and in much more detail this seems more robust than the 2 or 3 at random.

I think I may point out the issues to the client and let them decide! We do still have a generic measure of all consultants performance with which to beat the contractor without the Data Proetection and Contract issues of the consultants. I just hate letting the lazy and incompeteent hide away.