According to the Court of Justice of the European Union (CJEU) it is. In the recent case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the CCOO. A Spanish Trade Union had brought a group action suit on behalf of its members. It has been agreed that there is no legislation to suggest that a business needs to time record at work, but as the Advocate General and the CJEU both said, it would simply be impossible to comply with the Working Time Directive correctly without time recording. The Working Time Regulations are the UK’s interpretation of the Directive and it is clear that there is no onus on employers, to record time worked, in those Regulations either, but of course, the same reasoning applies.
What this means is that, at some point, the UK Working Time Regulations will need to be updated in order that they comply with this interpretation of the Working Time Directive
In fact most companies keep information about time off for sickness, holidays etc., what this information suggests is that we need to keep information about time on rather than simply saying that a person”must have been in, because they are not marked off as sick or on holiday”. Will this ‘new’ legislation be implemented post Brexit? Who knows, but for now we should be aware of the judgment and seriously look at the way time is recorded for staff.
For anyone interested the case notes and judgment can be found by clicking here
If you are unsure of what all this means, please call one of the employment law experts at Premier Legal on 0115 856 1625 and they will be glad to help.
Premier Legal offers a retainer scheme for employers – for a fixed amount each year, your employment law and HR problems can be taken care of. No business is too small or too big to benefit from our Premier Total Cover scheme, please click here for more information, or if you would like a, no obligation, visit please call Karen at our Nottingham Head Office on: 0115 856 1625
What is overtime and what is goodwill may come down to simple timing. While an employee might be happy to do a little extra, unpaid, work on occasions, if the relationship breaks down such goodwill might not seem so important.
Take the recent case of Jozsef Fitz and Holland and Barrett Retail Ltd. Mr Fitz was a supervisor who was, on occasions, expected to lock up the store when the manager was not present. However, Mr Fitz was on a contract that ended at store closing time and to lock up meant that he would be working a little longer to reconcile the tills, put the money away and check the premises prior to locking up – effectively meaning that he would, on occasions, work longer than his contracted hours.
I’m fairly sure that many of us have either expected this or done this ourselves, but an Employment Judge agreed with Mr Fitz that the extra time worked when he locked up was, in fact, overtime that he was entitled to be paid for.
In this case Mr Fitz’s contract was for a fixed amount of hours, which left little wiggle room if he was expected to occasionally do a few minutes extra, the judge went back the full 2 years permitted by legislation and awarded Mr Fitz just over £1,000. Possibly not a lot in the big scheme of things, but if that is multiplied out by 50 stores, there is quite a healthy bill to be paid.
This case may not be as exciting as some others I have reported, but it does demonstrate, very clearly, the need for contracts of employment to be fit for purpose. It also shows that contracts need to be updated as time passes and job roles evolve.
At Premier Legal we can check to make sure your contracts of employment are able to do the job they are intended for. Members of the Premier Legal Total Cover Scheme would have their contracts check to confirm they were fit for purpose and updated to ensure they were compliant with current legislation
For information about any of our services please call our Nottingham Head Office on: 0115 856 1625
Spring and Summer Employment Law Training sessions with AfternoonTea start on 08 May 2019. Please note that this is also the date when Premier Legal hosts Nottingham’s Finest Networking. The training session on 08 May will look at the Employment Law changes that came into place in April this year as well as important changes for later on that may need planning now.
The training session will start at 2.30 and end at 5pm – Nottinghams Finest will start to gather at 5.30, so you can smoothly transition from Afternoon tea to wine and canapés and a chance to meet and network other business people from Nottingham.
Each of the topics for our Afternoon tea sessions have been chosen because the represent problems that our own clients have come across in the last year. At each session there will be ample opportunity for you to ask questions and even gain advice on a specific problem.
Details of all of the sessions and topics can be found by clicking here
We will shortly be starting a series of 1 Hour webinars on Employment Law and HR issues – please watch this space for more details – members of the Premier Total Cover Retainer Scheme will be update automatically. For information about Premier total Cover, please click here or call Karen on 0115 856 1625
Employment Law changes or adapts every year and 2019 is no exception. Below are some of the changes that have taken place in April.
Wages and Payments
The National Living and Minimum Wage has just changed – the new rates are available by clicking here, where you will see that the new National Living Wage (employees 25 and over) is £8.21, almost a 5% increase.
There are also the usual increases in SSP, SMP etc. Statutory Family Payments, maternity paternity adoption etc., increase to £148.68 per week and Statutory Sick Pay increases to £94.25 per week.
An important change for April 2019 is that all employers need to provide payslips to ‘workers’ as well as employees and those payslips need to provide more information. All staff are entitled to a payslip for each pay period and that slip must now show the number of hours worked in that pay period, if the employee/worker is hourly paid. For anyone on a salary who receives extra pay for overtime, only the overtime hours need to be shown.
Government guidance on the new payslip rules can be found by clicking here.
Enforcement of this is going to be interesting, If an employee/worker does not receive a payslip they are entitled to raise a case with the employment tribunal. The penalty for the employer is that the tribunal can look back for 13 weeks and award the employee/worker any deductions that were made, even if they were completely lawful deductions.
The National living wage will increase by 4.9% in April 2019 – All employers must pay at least the National Living Wage to all employees or workers who are 25 years old or over. There are separate rates (National Minimum Wage) for younger employees or workers.
The current National Living Wage is set at £7.83 per hour, this will increase in April 2019 to £8.21, all other increases are shown in the table below;
National Minimum Wage for 2019/20
N.B the apprentice rate is for apprentices under 19 or in their first year of an apprenticeship, otherwise normal rates apply
More information on the National Living Wage can be found by clicking here
Veganism and Discrimination – the Employment Tribunal is to be asked if Veganism is a Protected Characteristic under the Equality Act 2010.
Currently we have 9 protected characteristics, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex and religion or belief. It is the last one of these – religion and belief that is being put to the test – is Veganism a strong enough philosophical belief to meet the test criteria, which say it must be; genuinely held, be a belief as to a weighty and substantial part of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others and it must be a belief, not an opinion or viewpoint based on the present state of information available.
The person bringing the case is a vegan, of course, who believes that he was dismissed because of his stance on ethical Veganism and the fact that he complained about his employers, The League Against Cruel Sports, allowing pension funds to be invested in companies that allow animal testing.
This case will be heard in March next year and if successful will add Veganism to the list of recognised philosophical beliefs. In the recent past, some of this type of challenge has succeeded, for instance a judge ruled that a belief in Man Made Climate Change was a philosophical belief. However, other challenges have failed, including, the belief that poppies should be worn for Remembrance Day and a belief that the 9/11 and 7/7 attacks were “false flag operations”.
We will report back in March when we have the result on Veganism.
If you need advice on any of the elements of the Equality Act 2010, please call our expert employment lawyers on 01215 856 1625
The BBC has some more on this article if you click here
Sexual Harassment and Sex Discrimination in the workplace
Hardly a day goes by without us hearing about another incident of sexual harassment and sex discrimination in the workplace. Some of these are historic incidents that only come to light when a celebrity is accused, but each week, almost without fail, we will be contacted because of a sexual harassment claim. I would have thought that the prevalence of such issues would be going down, but it is clearly increasing, perhaps because women feel more empowered to step forward than they have previously. Whatever the reason it is clear that all businesses need to have a strong policy and training in place if they want to avoid being responsible for someone else’s actions.
If something happens at your business you are going to be responsible for it, under the doctrine of vicarious liability. In other words you are responsible for your staff member’s actions. Your only defence or mitigation is to be able to show that you took appropriate measures to make sure that all of the team were aware that what they were doing was wrong, that you had a policy in place and that you had provided sufficient training.
What constitutes harassment?
There is a very clear definition or what constitutes harassment in the Equality Act 2010, which tells us that it is any unwanted conduct of a sexual that violates the dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. So we can see from this that there is a fairly wide scope anything from unsubtle comments to unnecessary touching. Take a look at this recent report of a case involving a young lady at Pizza Hut who picked up £16,000 for unwanted attention – click here to see the report at Personnel Today
Our own recent case
I can’t reveal names on one of our recent cases as the matter was anonymised by the Employment Judge, but we have a haulage company that offered a female driver a very well paid job, what they didn’t explain was the extras that may be required – after rebuffing her bosses advances and being told that she needed to be more “adaptable”, the driver was fired. Needless to say that the unanimous verdict of the tribunal was that there had been sexual harassment and that the dismissal was sex discrimination. In this case the claimant won on sexual harassment and sex discrimination in the workplace.
In the news
There are dozens of cases of harassment in the news, from the high profile personalities to companies such as O2, Nike and various councils and while you might think that as a company you are not sexist in any way, can you be completely sure that the same applies to all of your staff.
How can we help?
Premier Legal can provide robust policies and procedures as well as diversity training for your staff – call us on 0115 856 1625 to discuss your needs.
Can we expect legislation for how restaurant’s deal with tips left for waiting staff?
Teresa May has told conference that there will be a change in the law on tipping in restaurants – Jeremy Corbyn says it was his idea, so finally something that both main parties agree on.
There has been a fair bit of press over the last couple of years about how tips are accounted for and who gets them – does a tip go to the waiter or to the restaurant. Most of us probably expect that the tip goes straight to the waiters, but quite often this is not the case and some of the money goes to the restaurant either as an admin charge or for some other reason.
All of tip money to go to staff
There are several ways that tips can be split among the staff, but the new proposal from the PM is that all of the money provided as tips must go to the staff and nothing is to be held back for the restaurant. It has been illegal for some time to use tips to make up salaries to the National Living or Minimum Wage, but that has not stopped some businesses from taking a cut. Announcements at conference may not always find their way into legislation, but this is something that will be popular and something that the parties agree on, so there is every likelihood that we will see action on this in the future.
Current Law on Tips
It might be considered as interesting that HMRC considers tips to be income and, as such, taxable, but they are not considered income for the purposes of the National Living or minimum Wage, so tips, gratuities, service charges and cover charges do not count towards minimum wage pay. This is regardless of whether they are paid through your payroll or are given direct to workers by customers or a tronc master.
It will be interesting to see how any legislation is framed and how this sits with any arrangements that your business may have currently, we will, of course, let you know as soon as any Bill is put forward.
There is a fairly interesting note about the changes to the law on tips on the BBC New website, which you can see by clicking here
Premier Legal’s experts can advise on this or any other employment issues, just call us on 0115 856 1625
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.