A burning message to the business community…

(Not reading this may be bad for the health of your business)

The Government seems to think that the burden of employment rights is stopping businesses employing people. It seems that they are right about the problem: having been talking to business people recently, I find them telling me of decisions not to take business opportunities, so as to avoid employing more people or, in some cases, anyone at all! To someone like me, first a businesswoman and second an employment lawyer, this is dreadful, and it is also unnecessary, even with the law as it is now.

As always, fear and anxiety is more to do with perception than reality. The Government are wrong when they suggest that the solution is to change the law. You may find it odd for me to say it, but the law does not need to change. And if it does change, to allow no fault dismissals, unless the whole protection against unfair dismissal and discrimination is swept away, employers will still worry about dismissal and lawyers will still argue about the detail. If small employers are allowed to dismiss people, without unfair dismissal protection, good people will surely gravitate to larger employers or not move jobs at all. As the law is at a present, unchanged, if a business has a genuine, non-discriminatory, business reason for someone to leave and follows the basic process to make sure, then the law allows the dismissal anyway.

The problem is all about perception. I expect it is really the fault of employment lawyers like me, so keen to help people be aware of the legal pitfalls that we have made it seem like an area of unmarked landmines: best avoided. True, there are areas like discrimination to be tiptoed round. BUT, the worst that employment law can do should never, ever, be seen as such a risk that it is put before business opportunities.

Believe me, as someone who knows, with the law as it is at present you can choose the best person, buy control of their time, energy and skills in the interests of your business, and the law will not stand in your way. To start: recruit the best person you can get for the money and make the job description as broad and useful to you as possible. With so many good people unemployed, it is more of a buyer’s market than I can remember. Offer less, ask more, and you may well be surprised by what you can get.

Think part-time, think temporary and experiment. Invest in some minimal legal paperwork to keep your options open and you won’t regret it. Temporary can become permanent if it works well. What about someone for a few weeks to relieve you of admin so that you can concentrate on the real job in hand? What about having someone who knows about a newish sector for a while to see what grows?

Yes, have probation, but the law anyway now gives employers nearly two years protection against almost all claims for unfair dismissal for those who start after 6 April 2012. You just end it by giving notice – provided there is nothing like discrimination. I never advocate hire ’em, fire ’em, but I do absolutely advocate this priority:

  1. Do what is best for the business
  2. Reduce the risks as much as possible.

And rarely if ever, in my experience, are the legal risks so high as to outweigh an opportunity to grow the business, to improve performance and to make more money. Surely business is all about calculated risk anyway?

So please, business first. Employees are essential, once past the size where you can do it all yourself. Don’t let the law put you off. Just have a good lawyer and together lower the risks as much as possible. Even a good lawyer can’t protect you from, say, employee pregnancy (celibacy clauses are very hard to monitor), but remember that if a new employee would benefit the business this will almost certainly outweigh the likely risk.

My burning message? Don’t let the law and lawyers put you off using the essential tool of employees to help you achieve your business goals. Be commercial, creative and wise, and get alongside you a lawyer who is the same. Do I expect a rough response to all this? Probably, but that will only prove my point about perception. And, whoever your lawyers are, you are very welcome to contact me and tell me what you think. But you might prefer to spend the time thinking outside the box, and deciding where a bit of money might buy control of a set of time and skills that could really help you to grow that business…… And then contact me and we’ll lower the risk together.

The above is general comment only. For specific advice contact Frances Barker, Employment Partner at Blocks Solicitors on 01473 343911 or frb@blockslegal.co.uk.