In the latest case on Employment Status the Employment Appeal tribunal has backed up the first tier tribunal in their assertion that Addison Lee cycle couriers are Workers within the meaning of Regulation 2 of the Working Time Regs.
This means that the couriers are entitled to holiday pay as Workers and they are not a business in their own right. The tribunal had decided that when the couriers were booked onto their App, they were obliged to accept the job sent to them, this suggested a mutuality of obligation, they also stated other facts which prompted their belief that the courier was a Worker and in their conclusion the tribunal said,
“This was a working arrangement which did not lend itself to the interpretation which the armies of lawyers tried to promote. The claimant was part of a homogenous fleet and a homogenous operation which promoted Addison Lee to customers and looked after its own. There is nothing wrong or bad about that, it simply does not fit with the employment status for which the respondent contends.”
Addison Lee appealed stating that the Tribunal had erred in law and that their multi factorial assessment that the Claimant was a worker was perverse.
The Employment Appeal Tribunal agreed with the first tier on all counts in a ruling which means that these cycle couriers will be entitled to holiday pay in the same way as employees. It seems clear that the courts are taking a stronger view on employment status, we would therefore recommend that you look closely at any so called ‘casual workers’ to see if they are entitled to holiday pay etc.
If you are in any doubt at all, give our expert team a call at their Nottingham Head Office on 0115 988 6211 and they will be pleased to assist.
And a previous post on Employment Status can be found by clicking here
Premier Legal LLP offer a first class retainer scheme backed by the award winning insurance company ARAG – Premier Total Care can provide peace of mind for all HR and employment law problems – call us to get a quote for your business.
General Data Protection Regulation (GDPR) on european union flag with date
The General Data Protection Regulations (GDPR) are the biggest upset to data protection since the Data Protection Act of 1998.
One of the important things to note is that the sanctions for non-compliance have increased from the current maximum level of £500,000, which most people or businesses would think was pretty hefty anyway, to a staggering €20,000,000 (around £17m) or 4% of a business’s annual worldwide turnover, whichever is higher. There are also criminal sanctions for holding data incorrectly or breaching the data protection rules. Then add to this the fact that individuals can now claim compensation for loss caused by breaches or inappropriate use of data. They can also claim compensation for distress caused by a breach – injury to feelings.
The General Data Protection Regulations are a huge work of legislation which covers a raft of areas where data needs to be protected, from online marketing to a ‘right to be forgotten’ or to be purged from data held. It affects relationships between customers, suppliers, website users and those on marketing lists.
The new legislation comes into force on 25 May and all businesses must be ready by then. Perhaps I should say that although this is EU legislation it will not be affected by Brexit as there is a Bill going through parliament to mirror the EU legislation.
Obviously, we are concerned with how the General Data Protection Regulations affect employers and employees and any arrangements that HR need to make to ensure compliance. As employers you will hold a range of information covered by the regulations including, information about health, pensions, payroll, loans, CCTV images, emails, disciplinary and grievance processes. You may also be holding data about previous jobs, references, qualifications etc.
You may also hold data about other people – next of kin, information on employee’s children their names and birthdays.
There may well be very legitimate reasons for holding data – it would, for instance, be impossible to pay someone without holding certain data, but the new legislation makes it clear that you have to have a reason for holding data, you have to have positive consent to hold it and you must not hold it for longer than necessary.
Previously we have added a simple clause to contracts so that an employee, is giving consent to data being held, this is no longer to be considered a safe method of obtaining consent. Now employees need to offer ‘informed consent’ which is freely given, unambiguous and specific to each area of data being held. But that is not all, we must also allow consent to be removed at any time.
Previously employees could make a subject access request in order to see what information is being held, this request had a cost of £10 attached and employers had 40 days to comply. That £10 cost has been removed and employers must comply as soon as possible, but no longer that 30 days.
But complying with the request may not be a simple as you would expect, you cannot simply send a copy of the personnel file – imagine that you have been sent an email from an employee apologizing for being late as they had to pick up little Johnny as he was sent home from school with head lice. You now have data about Johnny, which you might pass to a business partner, line manager and HR – could you find all of those emails if you needed to? Consider how much more difficult it might be if the emails were on personal smart phones.
This small article is simply designed to raise awareness about the new GDPR legislation, it is not designed to make you compliant with the Regulations.
Premier Legal is holding seminars and webinars about the GDPR and can provide a GDPR for Employees policy for your business, we can advise on the changes that you need to make to your contracts of employment to ensure that they are compliant and help you with your GDPR Audit.
You can find more information about the GDPR at the Information Commissioners Office, by clicking here.
Please call Premier Legal LLP on 0845 070 0505 or at our Nottingham Head Office on 0115 988 6211 where someone can help you with any queries that you may have. Alternatively please send your query to firstname.lastname@example.org and will get back to you as soon as possible.
Changes to the National Living & National Minimum Wage
The new rates for the National Living & National Minimum Wage were set out in the Autumn budget and follow the recommendations of the Low Pay commission. Therefore, from April 2018 the new rates will be as follows;
Apprentices will get £3.70 per hour
16 -17 year olds will get £4.20 per hour
18 – 20 year olds will get £5.90 per hour
21 – 24 year olds will get £7.38 per hour and under the National living Wage
those over 25 years old will be entitled to £7.83 per hour (an increase of 4.7%)
You can currently check out all of the old rates by clicking here, no doubt the site will get updated with the new rates in the NewYear.
If you need any further information on this or any other employment related issue, please give us a call at our Nottingham Head office on: 0115 988 6211
The TV and newspapers are absolutely full of sexual harassment claims from both men and women, but do we know when workplace banter becomes harassment or when it is okay to touch a colleague?
The definition of sexual harassment, as far as the workplace is concerned, is found in the Equal Act 2010 which says sexual harassment is, “unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them“. But what does this mean in practice? Essentially any kind of suggestive remark, any indecent remark, unwanted touching and of course suggestions that sexual favours are required for promotion or even to keep a job are all forms of sexual harassment.
A recent survey found that over 50% of women had been subjected to some form of sexual harassment, but only 20% of those women ever report the incident. It is important that women, and for that matter men, feel safe and valued in the workplace and the laddish behaviour of the past must be consigned to history and not perpetrated in a modern workplace. Therefore, your business needs to have a culture where employees feel that they can complain and that something will be done about it.
What can you do as an employer?
Providing robust diversity training will go some way to alleviate the problem and will give employers a certain amount of legal deniability if they have rogue employees. But without following it up and making sure that new employees also understand the boundaries all employers face becoming vicariously liable for their employee’s actions. All businesses also need to have policies for dignity at work in their staff handbook or policy suite.
An employee can take a claim of sexual harassment to the Employment Tribunal while they are still working within the business, but we would hope that once they had raised a grievance under the company procedure the matter would have been successfully dealt with so that the Tribunal was not necessary.
Premier Legal LLP have many years experience in providing Diversity and Dignity at work training either at our regular seminars or in-house for businesses. We can also provide staff handbooks and bespoke policies. Please call out Nottingham Head Office on: 0115 988 6211 for more information.
A new Bill has been placed before parliament, that will mean employers must pay for two weeks of bereavement leave if a child of the family dies.
The Parental Bereavement (Leave and Pay) Act 2017 will provide that employees who have a child (under 18) that passes away will be entitled to two weeks of paid leave, which can be claimed back from the government in a manner similar to statutory maternity pay.
Statutory Bereavement Pay will be available to employees with 26 weeks of service and who have parental responsibility for the child. The leave must be taken by 56 days after the date of death.
This is a horrible subject to write about, and I’m fairly sure that most employers would take a sympathetic view in such circumstances, but this is the first time that the government has sought to codify bereavement leave and pay.
I will provide further information when the Bill has been through its parliamentary meanderings and comes out as an ACT and I will et you know when it becomes legislation. If you would like to see the Bill in its current form, please click below.
When this legislation is enacted it will mean that staff handbooks will need to be updated, those of you on our Premier Total Cover scheme will, of course get the updates free of charge. If you would like further information about the Premier Total Cover scheme or any other aspect of Employment Law, please contact us at our Nottingham Head Office on: 0115 988 6211.
Okay, so this may be seen as an excuse to put a picture of my dog Leah (the blond one) and her friend Evie into a blog, but the latest news from the Italian courts is that dogs are part of the family. Most of us that are dog lovers would probably agree, but one dog loving Italian university professor has gone one further and persuaded a Judge that she was entitled to claim sick pay for time off taken to look after her ailing pet as he recovered from an operation.
The Judge accepted her case that her employer, Rome’s La Sapienza University, should count her two days off under an allowance for absences related to “serious or family personal reasons” and that she was entitled to be paid for the two days off.
The case had been taken by Europe’s largest animal rights group the Anti-Vivisection League, whose president Gianluca Feicetti, said “It is a significant step forward that recognised that animals that are not kept for financial gain or their working ability are effectively members of the family”.
I doubt that this ruling is likely to have too much impact in the UK as our ‘Time Off for Dependents’ provision is generally unpaid, of course that may be different if you have a contractual right to time off for ‘family’ purposes.
Here we have yet another case where a director chose his words badly in what will, no doubt, be a costly exercise for Henworth Ltd t/a Winkworth Estate Agents.
Ms Gomes was just under 60 years old and happily working at the estate agents as an administrator. The agency was obviously trying to appear more youthful and seemingly didn’t value the experience that age may bring. Anyway at a meeting Ms Gomes was told by the director that she “might be suited to a traditional estate agency”, that ‘this marriage isn’t working” and she should “sleep on it and decide what you want to do”.
The Employment Tribunal agreed that the first comment would not have been made to a younger employee and was therefore direct age discrimination. However, those of you that read the transcript will also see that the Tribunal went on to say that even if they were wrong about direct discrimination, the comment certainly constituted age related harassment.
As the Claimant had resigned her position because she felt so unvalued she also had a Constructive dismissal Claim and the second two statements were seen by the tribunal as being clear evidence that the Claimant was no longer wanted at the business.
Ms Gomes had given evidence that the unwelcome comments had the effect of violating her dignity, she felt that the director was out to humiliate her. Ms Gomes said that she was so upset and she couldn’t get the words out of her head, the whole episode made her ill and she had to go on sick leave.
The employment tribunal will consider remedy at a future hearing.
This is another in a row of cases where ill thought out comments have caused offence and even made an employee unwell. It is extremely important that all employees from directors down have diversity training..
If you wish to discuss diversity training for your team or any other element of employment law, please call our employment law experts at our Nottingham Head Office on: 0115 988 6211
Does anyone remember the original case, back in 2008? Probably not, because at the original tribunal Ms Konczak, a secretary at BAE Systems who had been off work with stress, did win her case of unfair dismissal and obviously the dismissal had caused a great deal of stress, but she was only awarded a little over £30k. She appealed and after a long running saga the award was increased to over £360k (around 13 years’ salary) in what must appear to be the most expensive sexist comment ever. Not surprisingly BAE have taken this all the way to the Court of appeal claiming that the award was excessive. However, this week Lord Justice Underhill has said, while he gave his ruling, that the “tribunal’s reasoning is perfectly clear; and it is in my view equally clear that it is sustainable”. So BAE must pay the award and no doubt have a hefty legal bill to go with it.
While BAE can probably lose £360k without major damage to the business, there will be plenty of other firms that would end up bankrupt with this sort of award of compensation. So what was the terrible injustice that befell Ms Konczak? Her boss had said “women take things more emotionally than men while men tend to forget things and move on” – this single discriminatory comment is said to have pushed the Claimant over the edge and caused her stress and psychiatric injury.
The link to the Court of Appeal judgment is at the head of this piece, but the basic story is that Ms Konczak, who had worked for BEA from 1998 to 2007, had made some complaints about bullying while working at a particular site, so she was moved to another, but she wasn’t happy at the new site, this is back in 2005. So in 2006 her manager made the suggestion that she went back to her original posting, but when Ms Konczak complained the manager made the fateful comment – this was apparently the last straw and Ms Konczak went off work with stress. However, when she started to get better, a year or so later, she wanted to return to work and her employer refused to allow this and instead they dismissed her. So while the comment, no doubt, was the root cause of the issue BAE Systems haven’t covered themselves in glory over the dismissal either. With this as with all cases there are two sides to the story and the barrister who represented Ms Konczak, Tristan Jones of Blackstone Chambers, has written an altogether more erudite summary of the relevant part of the judgment and how this ruling may affect future cases. Tristan’s summary can be found by clicking here.
From an employer’s point of view the case clearly demonstrates that there is a need for all staff, no matter how senior, to undertake diversity training and to actually implement their diversity policies.
If your business does not have a diversity policy, if you would like your staff to be trained on diversity or if you would like to discuss our insured retainer scheme – Premier Total Cover, please call us on: 0845 070 0505 or at the Nottingham Head Office on: 0115 988 6211
In today’s ruling the Supreme Court has said that Employment Tribunal fees are unlawful. The Trade Union (UNISON) had sought a judicial review and a quashing order and they got what they asked for. The Supreme Court has held that the fees breach EU principles as well as UK law.
Tribunals have to stop seeking fees immediately and they need to start working out how to pay back around £30m that has been illegally collected since 2013. The latter might not be as easy as you would at first think because when Claimant’s won at the tribunal, in most cases, the Respondent would have been ordered to repay the fees as part of the compensation, therefore it will be the Respondent that gets a refund. In other cases, insurance companies or trade unions may have paid and they will be the ones getting repaid. So this could become a logistical nightmare for the MoJ. Or perhaps they will just say that any payments ordered were compensation and repay the fees to the person that actually paid them.
For Employers the fees regime has been quite wonderful, with tribunal cases dropping by 70%, but for Claimants it has been a disaster and this is why Lord Reed has acknowledged that since the introduction of fees there has been a dramatic and persistent fall which had reduced the potential claimant’s common law right to access to justice. As the fees were so high they would, in practice, prevent people who could afford to pay from pursuing small amounts of money or non-monetary claims. The conclusion from this is that the fees imposed disproportionate restrictions on the exercise of EU derived rights. But, Lord Reed also said that access to justice is “not an idea recently imported from the continent of Europe, but has been deeply embedded in our constitutional law” . Don’t you just love the Magna Carta.
We have to wait to see what this actually means going forward, but I am fairly sure that we will see a very quick increase in cases. There is also a potentially interesting issue that employees who might have taken a case over the last 4 years, may have to be given leave to issue their claims out of time if they can persuade a judge that the sole reason for not making the claim was financial and specifically the cost of the fees.
In a separate Judgment, the fees are also seen to be indirectly discriminatory against women.
Of course, this may not be the end of fees as the Government is, no doubt, already looking at ways to implement other costs, with one idea that is being mooted – to charge the employer if he is taken to tribunal. In other words you need to pay if your employee is unhappy at work or has been dismissed. I hope that this idea is a non-starter, but be prepared to lobby your trade associations if it starts to gain credence.
If you have any questions about this Supreme court decision, please call our experts on: 0845 070 0505 or at head office on 0115 988 6211
One of the recommendations is that we have, yet another, category of worker, to be called a “Dependant Contractor’. So at the moment we have Employed, Self-Employed and the grey area in the middle, the Worker, the new Dependant Contractor would, it appears, simply replace the Worker category, but offer more rights – pick pay etc.
Other changes suggested in the Taylor Review are:
Workers doing piece work should be guaranteed 20% above NMW or NLW. This seems to me to defeat the idea of piece work, if slow workers are to still get more than the NLW what is the incentive to work faster?
The reintroduction of Rolled Up Holiday Pay – many of you will remember the various cases and EU decisions which took away the ability to, legally, pay rolled up holiday. In an apparent about face on EU law it would seem that Mr Taylor wants us to bring it back, but give individuals the choice. Mr Taylor’s team say that the rolled up addition should be 12.07%, so someone on the NLW of £7.50 would receive £8.41 instead. This is all well and good and I must admit that in certain circumstances I have advised clients that Rolled up Holiday Pay is the best way to go. But I wonder how many people will actually take a holiday if they are not going to get paid for it at the time, so where it may be great for people that only work term time or only work seasonally it may not be a great idea for anyone who works a full year.
There is a suggestion that agency workers should have the right to a direct contract of employment after 12 months as a ‘temp’ with the same firm and also the abolishment of the ‘Swedish Derogation Contract’ for agencies. For an understanding of the Swedish Derogation, prepared by ACAS click here.
Another idea is that Statutory Sick Pay becomes a basic employment right that is linked to length of service.
Perhaps one of the most controversial suggestions will be that, so called gig economy workers are given a higher NMW than people who have a guaranteed hours contract.
Of course this is just a small summary and the whole paper discusses, tribunal fees, HMRC to become responsible for enforcing holiday pay, early written contracts for ‘dependant contractors’, and a change to the ICE Regulations.
If you would like to discuss any of the above or any aspect of employment law please call our experts at the Nottingham Head Office on: 0115 988 6211