Our latest guest on Ten2Two’s Talking SME podcast is Kimberley Whalen-Blake, Director at Hughes Paddison Solicitors. In this episode we discuss the top 5 employment law questions currently affecting SME business leaders.
A bit about Kimberley
Kimberley specialises in all areas of employment law, with over 10 years’ experience in her field. She represents both employers and employees in employment tribunal proceedings, including conducting the advocacy. This has given her a hugely advantageous aspect, enabling her to gain considerable insight into how the Tribunal conduct the cases in practice.
Kimberley draws on this experience when preparing her cases, presenting them in the most advantageous way for her clients. She has advised on and litigated all aspects of employment law, from unfair dismissals, TUPE, redundancies and restructures, to lengthy and complex discrimination and whistle-blowing cases.
Kimberley provides regular advice and assistance on corporate support work and also provides a range of HR support services to SME businesses. She ensures they are up to date with the constant evolution of employment law, and helps them best protect their business in what can be a very complex area of law.
She has previous experience as department head of a 33 strong team. This means she is well aware of the challenges faced in running a productive, profitable and efficient workforce. And the constant need to be juggling the management issues that comes with being an employer.
In order to gain a greater insight into challenges her commercial clients faced and to assist in the provision of supporting the HR function, Kimberley undertook a level 7 CIPD Human Resources qualification. Kimberley remains a member of the CIPD institute and regularly keeps herself informed on HR developments.
Outside of the workplace Kimberley enjoys spending time with her two children, particularly doing outdoor activities. She also loves travelling and exploring cultures far and wide. Kimberley is a school governor at Our Lady of the Rosary and also a trustee of local charity, The Hollie Gazzard Trust.
Here are some useful resources for business leaders, provided by Kimberley:
‘Top 5 Employment Law Questions for SME Business Leaders’ is just one in our series of podcasts where we talk about a wide range of topics. We talk with business experts, and also offer broad insights to help SMEs become more successful.
Tracey Adams (00:02):
Hello, and welcome to Talking SME, our quick fire chat with business leaders. I’m Tracey Adams and today I’m pleased to welcome Kimberley Whalen-Blake, director at Hughes Paddison Solicitors, a leading legal practice in Cheltenham. Welcome Kim.
Kimberley Whalen-Blake (00:19):
Good morning Tracey.
Tracey Adams (00:20):
We’ve had many conversations, with businesses of all sizes here at Ten2Two, but particularly SMEs. And as we have your undivided attention for about 15 to 20 minutes, perhaps we could pick your brains on the five most common employment law topics that we are coming across at the moment.
Kimberley Whalen-Blake (00:41):
Tracey Adams (00:42):
I’m sure you probably have similar sort of subjects and topics as well from your point of view. So the first one, the pandemic. Of course, it’s been top of everybody’s mind. So, I guess lots to do with this, but things like getting the workforce back safely and any issues around that.
Kimberley Whalen-Blake (01:04):
Yeah. So obviously the pandemic, it’s continued to rattle on way longer than any of us expected. The common themes that I am getting calls on now, is we obviously have the end in sight. It’s looking to be June-ish time, that we’re expecting significant easing of restrictions. How do we get our workforce back in? How can we do so safely? So, they are the key points that I’m getting at the moment.
The guidance is that at the moment its work from home, unless it’s not reasonable for you to be able to do your work at home. Obviously you’ve got all of the COVID secure practices in place. It is likely that come June, no matter how optimistic Boris Johnson is that there will still be measures and guidance in place.
Kimberley Whalen-Blake (01:57):
So definitely check that out, its published all of the time on direct.gov, to ensure that you’re complying with it. The importance with that is that we have just had a case out in the last couple of weeks where an employee refused to return to work, cited that it was not reasonable for him to do so because his health and safety was at risk. The employer had dismissed him and he was relying on that for traumatic unfair dismissal. And the tribunal found that it wasn’t an unfair dismissal. The employer had reasonably complied with the guidance in place, was COVID secure. And so they were perfectly entitled to ask him to come back to work. What I would say from a practical point of view is that your workforce has been out of the office, outside the usual routine for some time now.
Kimberley Whalen-Blake (02:52):
So just as you would in maternity cases and things like that, please ensure that you do a form of re-onboarding, to help them settle back in. They may be more nervous than usual in terms of, if they have to catch public transport et cetera. So just have those open and honest conversations with them.
Tracey Adams (03:11):
Yeah. Perfect. Thank you. Alongside that, as part of the whole pandemic picture, vaccinations. So I’ve been reading lots about whether you should be vaccinated or have to be vaccinated to go back to work. So what’s going on here?
Kimberley Whalen-Blake (03:27):
Yeah. Hugely topical and very political at the moment. Isn’t it? The whole vaccination process. You know, you’ve got very clear divides, in those that are really supportive of the vaccinations and those that feel as though it’s oppressive and it’s a restriction of their human rights.
Kimberley Whalen-Blake (03:47):
Now, there are many jobs out there already that require certain prerequisites and you will have seen all across the news about the vaccinations for care homes and things like that. So this is likely to be topical for some time, because as an employer, yes you owe a duty to individual employees, but you also owe a duty to the wider workforce and keeping them safe. There has been a very interesting case on this. It’s not related to the pandemic, but it is very much related to vaccinations – it’s a Czech Republic case that went to the European court of human rights.
And it’s important to note that not withstanding Brexit, we still are bound by decisions in the European court of human rights. So, there was a Czech Republic case and the whole thing was about vaccinations. Their children’s vaccination programs, a case was bought on the basis that it was a breach of their Article Eight, which is right to family life and privacy and Article Nine freedom of thought and consciousness.
Kimberley Whalen-Blake (04:56):
That has now been decided, that whilst there is interference with those rights, it was perfectly legitimate for the Czech Republic to enforce them because they had a reasonable, legitimate aim in respect of protecting the rest of their society that were vulnerable, that couldn’t take the vaccinations because of health issues and relied on herd immunity. So whilst not directly related to the pandemic, it is very, very interesting given that there is such a topical discussion about COVID vaccinations and it is highly likely that this case will be referred to in any dispute about them.
Tracey Adams (05:37):
Okay. Wow. Now on a slightly separate note, it’s sort of linked to the pandemic this one. You and I were talking before, and you’d mentioned, a number you’d seen sort of touted around if you like, that there’s been an increase in SMEs setting up last year and over the previous year, quite a significant increase. So, that had caused more competition and restrictive covenant questions. So that was really interesting. Perhaps you could expand on that?
Kimberley Whalen-Blake (06:07):
I think that, if we look at the unstable job market at the moment, because of the pandemic, we’ve had a lot of individuals obviously utilizing the coronavirus job retention scheme, so a lot of people that have been furloughed, and you also have the organizations that have restructured and made redundancies. So what was really interesting is that, from the period of June to October last year, so what’s that five months..
Kimberley Whalen-Blake (06:40):
So a five month period, there were 376,000 SMEs incorporated. That is an increase on the same period for 2019 of 90,000. So 90,000 that’s UK figures, of new, small and medium enterprises being set up. Now, what I’ve found on the employment law side of this, is I’m getting frequent calls about my employee has set up in business in competition and is contacting my clients, or they are using intellectual property. And so I am seeing a very, very sharp increase in restrictive covenant cases.
So if this is a concern, if you’ve had loads of staff on furlough, or if you have, or intend to make redundancies when business resumes and the furlough scheme ends in September. Definitely make sure that your restrictive covenants are well drafted because the fundamental principle is that they’re unenforceable as a restraint of trade, unless they only are to the level in which it protects the legitimate business interest.
Kimberley Whalen-Blake (07:52):
So if you are concerned about that, get those in ship shape order.
Tracey Adams (07:57):
Yeah. Okay. Thank you. Wow. I’m still flabbergasted by that number, but it makes sense when you look at the picture.
Kimberley Whalen-Blake (08:06):
It does and if you think if people are on furlough and they are used to working in a busy environment, they’re looking at ways to fill their time and they certainly aren’t doing that by going on holiday and visiting people. So we’re seeing a lot of people taking that time to set up their own businesses.
Tracey Adams (08:22):
Yeah, absolutely. So, for the next topic, the fourth question, I think we love this one.
Kimberley Whalen-Blake (08:34):
Oh yes the dreaded IR35. I mean I think this has been the longest talked about new employment update. I think I was talking about this back in like 2017 but the pandemic obviously delayed the roll out of it. So it has now been rolled out. This year it applies to medium and large, private businesses. Obviously it was already introduced in the public sector and the, private sector was the next one to go. So your small businesses are still excluded. It is about your off payroll workers. And specifically it’s targeted obviously as the individuals that set themselves up as a personal service company, i.e. company of one that is providing work to obviously the employer.
So we do have some grace and that’s come out in the last couple of weeks that, HMRC are offering a period of grace up until the end of this year, in respect of not issuing penalties to employers who have made genuine mistakes in relation to IR35, but it is caveated by, it needs to be a genuine mistake and therefore they will be expecting them to have done some work around that.
Kimberley Whalen-Blake (09:49):
So key takeaway, key recommendation, if you haven’t done so already, is to do an audit on those that work for you that are not on payroll, i.e. your contractors, your agency workers, include everything, not just those that are solo individuals in their own solo personal services company, do it for all off payroll working. If there are any queries about it, there are toolkits online in terms of asking questions and it will pop out the answer for you. And then finally obviously get some advice on it. Cause if you do those measures, it’s highly likely if you get it wrong, HMRC will be far, far more lenient with you.
Tracey Adams (10:27):
Great. Okay. Just in terms of the difference between small, medium and large businesses, is there a number of turnover or anything like that?
Kimberley Whalen-Blake (10:38):
It’s twofold. I don’t have the exact figures to hand Tracey, but I can send them to you so you can upload them to your database. But basically it’s twofold. One is turnover and one is number of employees.
Tracey Adams (10:51):
Yeah. So a number of SMEs, small businesses will fall out of that.
Kimberley Whalen-Blake (10:58):
They will on this implementation, but they’re not excluded forever. So, once this roll out has been done, they will be then brought into IR35, no doubt. So even if you are small in size, you’re still best off getting your house in order and saving yourself, the hassle of running around at the last.
Tracey Adams (11:20):
Yeah, absolutely. Okay. Thank you. And then the final topic, which, has sort of paled into the background, into insignificance whilst the pandemic’s been on, but it’s still there. So – Brexit and the right to work. So any updates on that for us?
Kimberley Whalen-Blake (11:36):
Yeah, I mean, it’s a huge thing that somehow has seemed to have gone under the radar because of everything that’s been going on with the COVID-19 pandemic. But obviously from the 1st of January of this year, 2021, there is no longer the free movement of people because Brexit. Now again, because of the pandemic, if there’s silver linings of the pandemic, these are the small ones. There is some grace on that, if people have got it wrong, up until the end of this month. So, not this month, next month, 30th of June.
There is a little bit of time for, employers to check their HR their staff databases, in respect of any EU or Swiss nationals that are working for them, they need to obviously get settled or pre settled status. And if they don’t, then they need to be looking at whether they can either get a visa or if the employer can sponsor them and they get it through the skilled worker points regime.
Kimberley Whalen-Blake (12:37):
So huge, huge things that have somehow been paled into insignificance, in the background. But definitely has huge ramifications if it’s got wrong. Cause obviously one, it would be an illegal contract, so there will be issues there. And secondly, there is fines from, the home office, there are criminal sanctions. So it’s definitely something that they need to look at. We, obviously a few weeks ago, did a podcast specifically on this point. And if anybody has any concerns, I would recommend starting there at that podcast.
Tracey Adams (13:13):
Absolutely. Thank you, Kim. I was just going to mention that, that’s perfect. We will signpost people to that one as well, where we have more details. So, lovely. There’s 5 huge, quite huge subjects there in their own rights. Interestingly all quite interlinked around the pandemic and things that are happening out of the pandemic as well. So thank you for that.
Kimberley Whalen-Blake (13:36):
More than welcome. And obviously if any of your clients or listeners want to pick up the phone and give me a call about any of those issues, it’s obviously a whistle stop tour, there’s only so much I can say in 15 to 20 minutes. But, if there are any queries, then, they’re more than welcome to contact me.
Tracey Adams (13:55):
That’s brilliant. And we’ll put your contact details around all of this so people can get hold of you if they need to. Thank you again for joining us today. Been lovely talking to you. Thank you.
Kimberley Whalen-Blake (14:05):
Thank you for having me.
Tracey Adams (14:08):
If you’re listening, I hope you’ve enjoyed talking SME today and look out for future episodes coming soon.