Do You Really Need A Human Resource Consultant?
If you are thinking about whether or not to engage a human resource consultant and have never done so in the past, you may want to consider whether or not you actually need an employment lawyer.
If you’re like most business owners, you’ve probably stumbled across this article whilst looking for an HR consultant which is one of a million tasks you need to get through this week. If that’s you, we’ve provided a bit of a cheat sheet on the roles of an employment lawyer and HR consultant, further down the article. If you have another minute or two to spare, we encourage you to read on.
The purpose of this article is to give you, the business owner, information about whether you need an HR consultant or a lawyer experienced in employment law, to help address the issues you are currently experiencing (or help you avoid experiencing those issues in the future). For example, where you are considering exiting a staff member for performance or redundancy issues.
HR Consultant vs Employment Lawyer
One key difference between HR and lawyers is that lawyers are authorised to practice law, while HR consultants may not be required to have any specific licensing or certifications. With that in mind, lawyers are bound by ethical and professional duties including the duty to keep client matters confidential. This is not always the case with HR consultants who may have to disclose the information if it pertains to a potential legal matter, whereas conversations with your lawyer may be protected by legal professional privilege.
So, let’s consider the different roles each play.
What Is The Role Of An HR Consultant?
Human resource consultants can provide valuable advice on a variety of topics related to employment law, such as discrimination, harassment, and wrongful termination. They also provide valuable assistance when dealing with recruitment and employee development, including advice and strategies to attract and retain employees, managing employee development programs and fostering appropriate workplace culture. Sometimes, Human Resource consultants can work with managers to identify and resolve workplace conflicts and provide training to help management manage sensitive issues in the workplace. They can also be vital in making sure that the workplace is managed in accordance with the policies and procedures of the business, that the frameworks established are being followed, and that issues are identified. In short, they play an important role in the management of staff, and good human resource managers or consultants can be invaluable resources to a team.
When To Seek Help From Employment Lawyer?
There are occasions, however, when you should seek legal advice (from an employment lawyer). Let’s explore what this means in practice with a few examples.
You’ve found an amazing person who you think will fit well into your team. You’ve offered them the role and you need an employment contract for them. Unfortunately, you don’t have one that works for the new employee. You put out a call for a human resource consultant to assist you. A human resource consultant will often have the expertise to manage the engagement of the new employee which may include inputting information into a drafted contract and negotiating matters around pay, position description and KPIs. They will also be able to ensure the proper onboarding of the new employee. But as they are not qualified to offer legal advice, they are not able to tell you whether the contract is drafted in the best way to protect your business, or is appropriate for the circumstances, or provide you with advice on what specific clauses mean (or what the ramifications are of amendments sought by the employee) from a legal perspective.
Understanding this distinction is crucial as employers need to ensure they receive accurate and appropriate advice when providing an employment contract to an employee, as a poorly drafted contract, or the use of the wrong contract for the wrong employee, can lead to issues down the line.
Employers should always consider whether it is necessary to seek legal advice before entering into an employment contract with an employee. A lawyer will be able to review the contract and identify any potential issues which could leave the employer open to litigation. They flag issues that you or the HR consultant may not have considered and can work with you and /or the HR consultant to provide guidance on how best to protect the company in the event of a dispute with the employee.
Another advantage of using an experienced human resource consultant is that they will generally know when a lawyer is required. However, the ability to identify when a lawyer should get involved will often depend on the experience of the consultant.
On other matters an HR consultant will typically be able to assist a business owner with our policies, procedures, and best practices within the organisation with the goal of optimising employee productivity and engagement.
Whilst an HR consultant can be helpful in resolving these issues, again they cannot provide legal advice.
Benefits Of An Employment Lawyer
An employment lawyer, on the other hand, is often consulted to provide legal advice related to employment law matters such as hiring/firing, wage & hour compliance, the drafting of compliant policies and other employment documentation, and advising and acting in unfair dismissal and general protections claims in the Fair Work Commission as well as discrimination matters.
Lawyers, unlike HR consultants, will also usually have experience in acting for employees, and not just employers. This brings an important perspective to an issue and can help you avoid potential problems, as lawyers will know how an employee (or more importantly, an employee’s lawyer) may view particular action by the employer, or whether taking such action may increase the likelihood of a claim being brought against you.
Sometimes there is a perception that lawyers over complicate matters or charge a lot more than an HR consultant. Whilst the costs of hiring a lawyer may (although not always) be more than a HR consultant, spending a little more at the outset can dramatically reduce your risks of having to outlay considerably more, both in time and money, down the line if you haven’t received proper legal advice. For example, obtaining legal advice before terminating an employee may save you from incurring far greater costs defending a Fair Work Unfair Dismissal or General Protections (Adverse Action) claim or making a payment to a former employee.
Let Our Employment Lawyers in Sydney Assist You
If you’re considering whether an HR consultant might be necessary for a specific situation, you might also consider speaking with a lawyer in the first instance. An employment lawyer will be able to tell you if the issues you need assistance with would better sit with an HR manager or consultant.
At TLB Law & Co we will be happy to have an initial chat with you regarding your circumstances or issue and let you know if legal advice regarding your employment or workplace law issue might be warranted and the costs surrounding that advice.