by Emma | Feb 5, 2019 | Newsletter
There have been a number of recent legal rulings finding that individuals who are categorised by businesses as self-employed contractors are, in reality, workers or employees who are entitled to minimum worker benefits, such as the National Minimum Wage, statutory paid holiday and sick pay. The trend has been for more and more individuals working for businesses, where the work they do is largely controlled by the business but they do not enjoy employee or workers’ rights, to be recognised by the tribunals as workers. Unfortunately, determining the employment status of individuals is a complex task for businesses. There have been calls to simply the law in this area. In 2016, the Government commissioned an independent report on modern working practices and the employment status of contractors working within the “gig economy”. The Government finished consulting with businesses and other interested parties on this report in June 2018. The Government have introduced draft legislation to Parliament. The new legislation, which is scheduled to come into force in April 2020, includes: - closing a loophole by repealing the Swedish derogation – which currently allows agency workers to be employed on cheaper rates than permanent counterparts
- extending the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave, such as maternity and paternity leave
- increasing the maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000
- extending the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off they are entitled to
- lowering the threshold required for a request to set up Information and Consultation arrangements from 10% to 2%
Additional proposals set out in the Government’s response, for which the Government has not yet introduced legislation or a timetable of reforms include: - Empowering the Employment Agency Standards Inspectorate to monitor the role of the umbrella companies and to ensure that agency workers are receiving adequate pay without inappropriate deductions being made.
- Introducing a new single labour market enforcement agency to support workers and advise them of their rights.
- Clarifying the employment status test and aligning the employment status frameworks for employment and tax purposes in order to reduce any differences between the two systems.
- Introducing a right for “zero hour” or “casual hour” workers to request a more predictable and stable working pattern after 26 weeks of service.
- Extending the time required to break a period of continuous service between contracts from one clear week to four clear weeks to make it easier for employees to access their statutory rights, which are based on length of service.
- Prohibiting deductions from staff tips.
To clarify, there are no plans to end the use of “zero hour” contracts. The Government has made clear that it recognises the varied ways of working, wants to ensure the workforce remains flexible, but whilst guaranteeing key protections for workers which the above proposals and legislation is designed to address. |
by Emma | Feb 5, 2019 | Newsletter
Employment law legislation excludes certain conditions from the definition of disability, including a tendency to steal, set fires, or physically or sexually abuse other persons.
An employee working for Durham County Council as an anti-social behaviour officer, had nine years’ service and a clean disciplinary record. He had previously worked as a police officer for 17 years. He was subject to a code of conduct that applied inside and outside work, and required vetting to Non Police Personnel Vetting (NPPV) Level 2. The employee suffered from severe depression, PTSD and associated amnesia, which the employer accepted amounted to a disability.
During his employment, he went into a branch of Boots in Durham and left without paying for four items, which he had put into his own carrier bag. He was stopped outside the store by security staff, who called the police. He had removed his Council ID and when searched by the police he told them that he worked in security when asked about his occupation, which was of course untrue. He was issued with a Penalty Notice for Disorder (PND) and a £90 fine. He did not report the matter to the Council, as he was obliged to do under the Council’s code of practice.
Shortly afterwards, the employee’s NPPV clearance was refused due to the PND, which meant he was unable to work as an anti-social behaviour officer. When questioned by his line manager if anything had happened outside of work that he should be aware of, the employee lied and said not. The employee said he could remember the shop lifting incident but this was not due to dishonesty but attributable to his occasional memory loss, which meant that he sometimes forgot to pay for items before leaving a shop. Following a disciplinary process, the employee was dismissed for criminal conduct outside the workplace, withdrawal of NPPV clearance and the risk of reputational damage to the Council. His appeal was dismissed.
The nub of the dispute between the parties was whether the shoplifting from Boots demonstrated that the Claimant had a tendency to steal, which was an excluded condition for disability discrimination purposes.
The EAT agreed that the tribunal was correct to find that the Claimant’s tendency to steal, which was a result of his PTSD and dissociative amnesia, was an excluded condition for disability discrimination purposes. In other words, as the alleged discrimination was a result of an excluded condition, the exclusion applied and the Claimant lost the protection against disability discrimination. The EAT agreed that, based on the facts, the tribunal was correct in finding that the Claimant was dishonest and not simply forgetful in taking the goods without payment and that his dismissal was fair.
by Emma | Feb 5, 2019 | Newsletter
The Government has published its Good Work Plan today. The Plan sets out the Government’s vision for the future of the UK labour market, as well as how it intends to implement the recommendations arising from the Taylor Review of Modern Working Practices.
What the future has in store
The Good Work Plan sets out a number of legislative changes which are designed to improve protection for agency workers, zero-hour workers and others with atypical working arrangements. These include:
- Repealing the “Swedish derogation” in the Agency Workers Regulations 2010. This excludes agency workers from the right to the same pay as directly-recruited workers if they have a contract of employment with the agency.
- Increasing the period required to break continuity of employment for the purposes of accruing employment rights from one week to four weeks.
- All workers will have a “day one” right to a written statement of rights.
- Legislating to prevent employers making deductions from staff tips.
As far as the enforcement of worker rights is concerned, the Government has committed to the following:
- Quadrupling the maximum employment tribunal fine for employers who are demonstrated to have shown malice, spite or gross oversight in breaching employment rights from £5,000 to £20,000.
- Bringing forward proposals in early 2019 for a single enforcement body to ensure vulnerable workers are better protected.
- Creating new powers to impose penalties on employers who breach agency legislation like non-payment of wages.
- Bringing forward legislation to enforce holiday pay for vulnerable workers.
Employment status
The Good Work Plan confirms that the Government intends to legislate to clarify the test of employment status on which eligibility for worker rights depends. The Government agrees with the recommendations of the Taylor Review that differences between the employment status tests that govern entitlement to employment rights and tax liability should be reduced to an absolute minimum, and states that “renewed effort” will be made to align the tests.
Will there be a shake-up of employment status? The Taylor Review recommended that the Government take a fresh look at existing legislation governing employment status with the aim of making it simpler and clearer. As a result the Good Work Plan promises that the Government will legislate to “improve the clarity of the employment status tests, reflecting the reality of modern working relationships”.
As to when all these things will happen, it remains unclear, but at least we have some clarity as to the action points on the Government’s agenda.
by Emma | Feb 5, 2019 | Newsletter
The Information Commissioner’s Office (ICO) has published new guidance on passwords in online services and encryption under the General Data Protection Regulation (GDPR). The main points: - Organisations should have an encryption policy and train staff in the use of encryption;
- Encryption should be used for storing and transmitting data; solutions should meet current standards and be kept under review;
- Organisations should nevertheless be aware of the residual risks that remain even with encryption in place and take steps to address these;
- Organisations must not forget about their password system once established, they should carry out periodic reviews;
- There may be better alternatives than using passwords; and
- When designing systems and services, organisations must have regard to a data protection by design approach and this includes for password systems.
It also includes information on: - How to store passwords;
- How to enter passwords;
- General requirements for passwords (i.e. length and use of special characters);
- Changing passwords;
- The role of the National Cyber Security Centre and
- GetSafeOnline.
The ICO confirms in the guidance that where unencrypted data is lost or destroyed, it is possible that it will pursue regulatory action. For further information please visit the ICO website: https://ico.org.uk
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by Emma | Feb 5, 2019 | Newsletter
From 6 April 2019, payslips MUST be given to “workers” and not just employees. Payslips MUST also have the following information on them: - the total number of hours worked where the pay varies according the hours worked, for example under variable hours or zero hours’ contracts
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by Emma | Jul 16, 2018 | Newsletter
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.
