In the aftermath of the Jeremy Clarkson debacle earlier this year, Jo Cairns, HR consultant in the HR & employment law team at Taylor Bracewell LLP, answers some frequently asked questions surrounding managing permanent and the temporary employees, what are the key challenges employers face?
What are the differences between managing talent you employ versus talent you have contracted into your business?
According to the CIPD, "talent management is the systematic attraction, identification, development, engagement, retention and deployment of those individuals who are of particular value to an organisation, either in view of their ‘high potential’ for the future or because they are fulfilling business/operation-critical roles."
From this perspective, therefore, there is no difference between employees and contractors. The difference in how you manage the talent comes from the distinction between whether your relationship with the person in question is one based on a contract of employment or on a service contract.
Both types of contract, however, can stipulate the behaviour expected of both the business and the employee or contractor, and any consequences for breaches of such behaviour. Both contract types can also stipulate any bonuses for exceptional achievement and how and when performance will be reviewed and objectives agreed. And of course both types of contract should stipulate how the contract may be terminated by either the employee/contractor or the business. Where there is a termination by an employer of an employee, however, the process can take longer and there is specific legislation in place that gives the employee a right of recourse in an employment tribunal, if they feel they have been unfairly dismissed.
The coverage on the Jeremy Clarkson case is illustrative of how words and terms relating to employment are often bandied about with insufficient thought given to their meaning and the impact of the use of words on peoples' perceptions of the employment relationship.
The words 'sacked' and 'contract not being renewed' were used seemingly interchangeably, yet Mr Clarkson was a contractor who worked for the BBC rather than being employed by them, and thus was not 'sacked'.
Can employees or contractors that consistently deliver results 'get away with' more than others?
Jeremy Clarkson happens to be a high profile personality, but there are many organisations that do not face the public scrutiny the BBC faced in this case, where employees or contractors that deliver exceptional results are given more leeway to behave in a manner that, in other less highly-performing employees or contractors, may not be tolerated.
In an interview on BBC Radio 5 Live, Taylor Bracewell senior employment solicitor Debbie Mactaggart asked "How far do you let high-performing individuals push the boundaries? Is there a business case for allowing them to get away with more before enough is enough?"
Employers need to be careful as they have a duty of care towards all their employees and contractors, and by tacitly condoning bullying or other inappropriate behaviour, they could lay themselves open to other employees claiming constructive dismissal.
BBC Chair Lord Hall's statement when he announced that Mr Clarkson's contract wouldn't be renewed reflected very well the considerations any employer or contractor for services must weigh up when examining disciplinary allegations.
Whether you are Mr Clarkson or Jocinta Bloggs, the firm you are either employed by or working on a contract for, has a duty of care to themselves and their employees and contractors to investigate thoroughly and reach decisions fairly. A cool head, good assessment skills and concentrating on a fair process are essential for dealing with all the surprises, both small and large, that you face.
How can you avoid the potential pitfalls the BBC faced in the Jeremy Clarkson case?
The key to avoiding pitfalls is to have clear written policies in the first place and communicate these to all employees and contractors. These need to be backed by employment or services contracts that outline expected performance outcomes and behaviours, as well as the processes for contract termination. In an ideal world, when things go wrong, investigations should happen in private, without the world watching, in order to allow a timely but considered and careful investigation to take place before a decision can be reached.
Ultimately, however, one thing that the Clarkson debacle highlighted was the need to 'nip problems in the bud' early. If an organisation allows high-performing talent to 'get away with' more than others time and time again, it ends up being pushed into a corner when things go too far. Big talent often comes with big personalities and these need to be carefully nurtured and managed over time so that the organisation and its employees and contractors can thrive in a safe and pleasant working environment.