Payslip Changes – April 2019
From 6 April 2019, payslips MUST be given to “workers” and not just employees. Payslips MUST also have the following information on them:
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EMPLOYMENT LAW UPDATE JULY 2018
GIG ECONOMY CASES
Pimlico Plumbers
The Supreme Court has decided that a plumber who brought a case against his former employer was in fact a “worker” and should therefore be entitled to holiday pay and other basic workers’ rights.
The court upheld the previous decision by the Court of Appeal that Gary Smith, who worked for Pimlico Plumbers, could be described by a worker despite signing an agreement with the company describing himself as self-employed, and filing tax returns to this effect.
Gary Smith’s case against Pimlico Plumbers, which has been running since 2011, is the latest in a long line of legal challenges on employment status, and “is in line with a number of recent decisions relating to gig economy workers”..
In this case, the individual had to wear a uniform, work a 40-hour week, was subject to disciplinary rules and was limited in who he could work for after he had left. This gave Pimlico Plumbers enormous control over his activities. But it also significantly undermined Pimlico Plumbers’ key contention that he was self-employed.
When considering whether Pimlico were a client or customer of Mr Smith’s, it noted the tight control that Pimlico had over Mr Smith in relation to branded uniforms and vans, the instructions issued from the control room, the terms as to how much it was obliged to pay him, and the restrictions on his ability to compete, post-termination.
Addison Lee
The Employment Appeal Tribunal (EAT) has held in Addison Lee Ltd v Gascoigne that a cycle courier working for Addison Lee was a worker under the Working Time Regulations 1998 and the Employment Rights Act 1996, and not a genuinely independent contractor. He was therefore entitled to statutory holiday pay.
The claimant’s contract stated that he was “an independent contractor”. The contract provided that in the case of bookings with Addison Lee account holders he would act as a sub-contractor for Addison Lee delivering to its customers. For other bookings Addison Lee concluded contracts on his behalf with the customers. The contract provided that the claimant could choose the days and times he would be available, but there was no obligation on Addison Lee to offer work or on him to accept it when offered. He would, however, be deemed to be available and willing to provide work at any time that he was logged into an Addison Lee palmtop computer or app. The company had started requiring couriers to sign new contracts every three months. As the claimant was only rarely at the office, his contracts were signed on his behalf by driver liaison.
At first instance the tribunal held that the claimant was a worker, not a genuinely self-employed independent contractor, and so he was entitled to holiday pay. The contractual documentation did not reflect the reality of the relationship which was that the claimant had to perform work personally for the company under its control, rather than operating his own business. The EAT agreed. It held that the tribunal was correct to conclude that there was a contract in existence during the periods when the claimant was logged onto the app, and that during these periods mutual obligations existed.
Sleep In’s
The Court of Appeal has held in the Mencap case that employees are not entitled to the national minimum wage (NMW) for the full duration of their sleep-in shift who sleep-in as they are engaged in “time work”, and are only therefore entitled to the NMW when they are awake and carrying out duties. This decision comes as a great relief to care providers who have been facing an ever-increasing pressure on budgets, although the response from unions and support workers has not been positive. The judgment is very clear and without an appeal will stand as a definitive summary of the law for the foreseeable future.
The central issue considered by the Court of Appeal in the Mencap case was whether employees who sleep-in in order to carry out duties if required, engage in “time work” for the full duration of the sleep-in shift, or whether they are working for NMW purposes only when they are awake to carry out any relevant duties. Mencap and the other employers argued successfully that as the employees were time workers the following wording in the NMW should apply: “hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”. As such when workers are sleeping they are not entitled to the NMW.
GDPR
The GDPR deadline was 25th May 2018. However, just because the deadline has come and gone, doesn’t mean that businesses need to stop looking at their data. Most risks to organisations in a cyber sense come from third parties who have access to employee data. If a third party suffers a breach it must inform the company it is processing data for without undue delay and it must be reported to the ICO within 72 hours. It is highly recommended that businesses inform their third parties of the requirement to inform them without undue delay and that they understand what “without undue delay” means.
If a third party does have a data breach, businesses may have to deal with a lot of employee’s grievances. It is important that the business has a clear internal procedure for dealing with such a breach.
Other news:
The government have put plans for grandparent leave on hold.
For any further information on employee/ worker status or GDPR please contact us on 07929506143.
£55k pay out!
London General Transport Services was found guilty of harassment, discrimination and constructive unfair dismissal, after a female bus driver employee lodged a grievance about multiple counts of sexual harassment from her majority-male team, only to be told by her union rep the culprits were “probably joking”, and that she should lie about her relationship status to avoid future incidents. She was told that the drivers who had spoken sexually to her were “joking”, and suggested she “deter prospective harassers by saying that she was pregnant or married”.
She resigned from her post in September 2017, having never returned from a period of sick leave, and the tribunal upheld her claim of constructive unfair dismissal.
London General Transport Services was ordered to pay a total of £55,167.20, broken down into a financial award of multiple damages – including those for sex discrimination and unfair dismissal – of £23,612.89, and an award for injury to feelings for sex discrimination of £17,000.
The right to a written itemised pay statement
The Employment Rights Act 1996 will be amended with effect from 6 April 2019 so that every worker will have the right to be given a written itemised pay statement at or before the time at which any payment of wages or salary is made to him or her.
Where an employer either fails to give a worker a statement or gives a worker a statement that does not comply with what is required, the worker will be entitled to make a reference to an employment tribunal to determine what particulars ought to have been included or referred to in a statement. The worker will also be able to refer the question of whether all the particulars which should be included or referred to in the statement have actually been included to an employment tribunal.
Variation of Contract
The Court of Appeal has held that continuing to work (in this case for two years) following the imposition of a contractual pay-cut will not always be treated as acceptance of those terms. Previously it was thought that an employee’s decision to continue working following changes to terms and conditions would be taken as a deemed acceptance of these new terms. It seems, that this will no longer be the case.
The Council decided to impose a two-year pay freeze in March 2011. The trade unions opposed this proposal, threatening industrial action and the Council asserted that the alternative was a large number of compulsory redundancies. The Council imposed a similar freeze in April 2013 and several hundred affected employees brought claims for unlawful deductions arguing that they had a contractual entitlement to incremental pay increases.
The Court of Appeal held that all the claimants were contractually entitled to the pay increases, and that they had not implicitly agreed to a variation of contract.
Following the decision in this case it is no longer sufficient to assume that an employee who has continued to work for some duration of time after the changes have been imposed is therefore deemed to have consented to those changes.