Senior solicitor ESP Law
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Are HR professionals becoming employment lawyers?

6th Dec 2018
Senior solicitor ESP Law
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Evolving employment legislation and mounting economic stresses, together with the uncertain political climate, are culminating to create an increasingly challenging legal landscape for HR teams to navigate. Some have even been left feeling as though they’re verging on becoming employment lawyers, as a result.

But are Human Resources professionals putting too much pressure on themselves to manage everything, or is this widening litigation knowledge actually necessary? Arwen Makin, senior solicitor at ESP Law, offers her thoughts, in this exclusive blog for HR News…

2018 has been a big year when it comes to employment law. The repercussions of the abolished employment tribunal fees have been felt on an escalating scale, for example, with many employers acutely aware that claimants now have no reason not to pursue a case. 

So, whilst few HR professionals would have previously been blasé about workplace legislation, there is certainly a consciousness that a litigation culture is upon us once again, and the fear of getting it wrong is very real.

To some extent this has impacted on HR teams’ willingness to take calculated risks. This is not to say the laws will have ever been purposefully flaunted, but sometimes in complex people- or process-driven scenarios, judgment calls will have once been made as to the best decision for the business. Now, it may feel sensible to be far more risk averse. However, to be truly aware of all of the risks involved, an unparalleled amount of knowledge is required.

To take one area of employment law as an example, complex ‘employment status’ discussions have rumbled on and now we’re waiting to hear how someone being a ‘worker’ – rather than self-employed – will affect back-dated holiday pay. This is a very movable beast and just one of many examples which demonstrates that cases are fact-specific and much relies on interpretation. Trying to understand every nuance of every case would be nigh-on impossible for a HR professional – not to mention a distraction from the core elements of their role.

HR professionals don’t need to be employment lawyers, but they are right to develop a proactive stance to their employee relations, if they’re to avoid ever becoming one of the HR headlines!

This isn’t to say, on the other hand, that they need to rely on the daily assistance of an ‘on the clock’ lawyer – mindful of the fees that would be incurred as a result, this would probably detract them from having the conversations they need. Yet working collaboratively with a legal advisor undoubtedly helps. Aside from the empowerment of knowledge, plus the ability to take two steps back and view the situation without emotion, this approach also provides legal privilege – protection surrounding the advice given.

Moving into 2019, it is of course important for HR professionals to remain abreast of ER, as well as the direction of travel of wider legislative issues, so that they are aware of potential ‘red flag’ areas. There are many helpful resources for HR teams to consult to ensure such ongoing learning, and the perfect time to upskill is during quieter periods – if they look likely to ever exist! But there is absolutely no need for Human Resources managers to feel like they’re verging on becoming employment lawyers – that’s what we are here for.

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