Thursday, 1 March 2018

Can agency workers, be compensated for less holiday

Can agency workers, entitled after 12 weeks to the same basic working conditions as an end-user's employees, be compensated for less holiday or unpaid breaks by a higher hourly pay?

No, held the EAT in Kocur v Royal Mail, upholding two grounds of the Claimant's appeal.

Regulation 5 of the Agency Workers Regulation 2010 entitled the Claimant to the same basic working and employment conditions as the hirer's comparable employees. He got higher hourly pay, but 2.5 days less holiday; a 1-hour rest break was only paid for 30 minutes, not the hour. His daily pay was £1.95 higher. The tribunal found that this offset those less favourable terms.

The EAT disagreed; an agency or hirer cannot offset a failure to confer a specific AWR entitlement (e.g. the same annual leave) with a higher rate of pay. The entitlement is to the same basic terms and conditions as comparable employees on a 'term-by-term' basis with equal terms, not by comparing the overall package.

However, parity can be achieved in different ways, e.g. identical holiday pay could be provided by a lump sum at assignment end, or in 'rolled-up' holiday pay. If so, the payment mechanism must be transparent so the agency worker can readily ascertain how remuneration relates to annual leave.

The EAT rejected a contention that the Claimant's entitlement to the same 'duration of working time' entitled him to work the precisely the same number of hours as comparable employees (e.g. a 39-hour week); the entitlement would be to the same working time as employees, so not getting an 8-hour shift when the employees' maximum shift is 6 hours.

My Comment: It still amazes the lengths some employers go to, to try and get around regulations!     this was never going to be seen as being compliant.   

Experts warn of rush of claims following Tesco pay case

Social media, increased appetite from law firms, and scrutiny around gender pay could all lead to more private sector claims

Legal experts have warned that the Tesco £4 billion equal pay case could open the floodgates for more large private sector claims.
Almost 100 Tesco employees have launched a group claim asserting that the value of the work female shop floor workers do, which sees them earn up to £3 an hour less than male warehouse staff, is comparable to these warehouse jobs. As many as 200,000 women who work in Tesco stores could receive back pay totalling £20,000 each if the claim is successful.
A similar claim was launched against Asda, with a Manchester employment tribunal ruling in 2016 that female employees could compare themselves to male staff in Asda’s distribution centres.
The most high-profile equal pay cases of recent years have until now concerned the public sector. Birmingham City Council is now liable for more than £1 billion pounds in payments after settling an equal pay claim from women employed as cleaners, cooks and carers who claimed their work was of equal value to that of binmen and male street cleaners.
“There is a concern that the potentially £4 billion Tesco claim means the levee for equal pay claims in the private sector will finally break,” commented Paul Quain, a partner at GQ Employment Law.
“Up until fairly recently large equal pay claims have been virtually unknown in the private sector while being relatively common in the public sector. Unions have been happy to fund these cases in the public sector, but less so in the private sector where union membership is much lower.”
Quain said a key factor in the shift was the technology now available to help organise support for group claims. “Social media like WhatsApp and Facebook make it very easy to pull together and manage a group of claimants from the grassroots level – you no longer need a union to organise claimants,” he said.
He added that UK law firms also now appear to be increasingly willing to take on the cost risk of group claims without the support of union funding. “As the risk appetite of UK law firms increases we expect that more group claims will follow – following the US model where these kinds of claims are far more prevalent in the private sector,” he said.
Crowley Woodford, an employment partner at law firm Ashurst, warned that this could prompt a “tidal wave” of claims.
"The Tesco employees are trying to capitalise on the success of the Asda ruling,” he said. “If the Tesco employees are equally successful then all major retailers, and indeed businesses more generally, could be exposed to a tidal wave of equal pay litigation."
Helen Watson, head of employment law at Aaron & Partners, said that April’s looming gender pay reporting deadline is also a factor.
"The spotlight is now firmly on gender pay gap reporting and I expect we will see a lot more cases like this emerging in the months ahead,” she warned. “It's clear that the glass ceiling exists in many companies, and there is clear inequality in what women at all levels of employment are receiving in terms of remuneration and opportunity.”
She added: “Our advice to the business community is that it’s important to review the gender pay gap now and seek legal support and advice. The equal pay claim against Tesco could see them hit with an eye-watering bill of up to £4 billion and it is a stark example of what could apply, albeit on a smaller scale, to smaller businesses anywhere in the UK.”
“Equal pay claims are legally complex, can be difficult to settle early and can drag on for years as people jump on the bandwagon long after the initial launch,” added Quain. “The Asda equal pay claims have been running since 2014 and are far from over.”
"It may be too late for Tesco to remedy this situation, but there are likely to be hundreds of businesses out there who have similar pay practices within their organisation whether they openly know it or not,” added Donna Martin, partner at Mackrell Turner Garrett.
She advised businesses: “Do not hesitate, act now and seek professional assistance if you need it. Claims such as these are not only costly, but they could have a significant impact on your company’s reputation.”
My Comment: This has been a while coming of course,  and we all knew it was right!     You cannot women less than men for work of equal value !!     Now it's official.  My thanks  To   HRmagazine for this piece

Can stand-by time spent at home be 'working time'?

Working Time: Time Spent 'On Call' at Home

Thanks to James English of Hempsons solicitors for preparing this case summary.

Can stand-by time spent at home but within 8 minutes travel of a workplace be 'working time'?

Yes, held the CJEU, in Ville de Nivelles v Matzak.

The Claimant had served as a volunteer retained firefighter for the Belgian town of Nivelles since 1980. Whilst on 'stand-by duty', he had to be contactable and within 8 minutes travelling time of the fire station. All staff (professional and voluntary) were paid an annual allowance for stand-by shifts, and the Claimant claimed that he had not been paid appropriately for this time.

Amongst the issues the CJEU had to consider was whether stand-by time was working time (having decided that the Claimant was a worker). The Advocate General had suggested that the quality of the time a worker would spend on stand-by was more important that the restriction on where they should be. The CJEU rejected this, noting that the intensity of work did not determine whether time was working time or a rest period.

The CJEU went on to decide that when a worker had to be physically present at a place determined by the employer (even if their own home) and available to work at short notice, making it impossible for the worker to choose where to be, then that would come within their normal working duties. Therefore, in this case stand-by time was working time. It would then be for the national court to determine whether the Claimant had been properly paid for this time.
My Comment : This might be about a volunteer fireman in Belgium,  but there is an impact for many sectors here.   Not the least care homes.   This topic has been simmering for some time now and it is starting to become very clear the way it is going to pan out.    The tradition in the UK care home industry has been to pay only a fixed fee for "sleep ins" .   It is now becoming clear that "sleep-ins"   are "working time"  for the purposes of pay.   They should then be paid at not less than the NMW  for all hours spent.   This too will apply to the security or maintenance companies who have engineers "on stand-by" .

Wednesday, 7 February 2018

Government announces holiday and sick pay for gig workers

The government has adopted nearly all of the the Taylor Review’s recommendations in its response, published today                                                          

Its 'Good Work' plan comes in response to the independent Taylor Review, published last year, which investigated what impact modern working practices are having on business and people. The review found that the strength of the UK’s labour market is built on flexibility but that a clearer focus is needed on the quality of work as well as the quantity of jobs.
In some cases the government is going further than the review, it claimed. For example in introducing: holiday and sick pay for gig workers for the first time; a right for all workers, not just zero hours and agency, to request a more stable contract; and a right for all workers to demand payslips.
The government is also asking the Low Pay Commission to consider a higher minimum wage for workers on zero-hours contracts, and says it may also repeal laws that allow agencies to employ workers on cheaper rates.
A consultation into employment status is also to be launched, including consideration of whether new legislation is needed to make it easier for both individuals and organisations to understand whether someone is an employee, worker or self-employed.
The government has also launched consultations into the enforcement of employment rights and measures to increase transparency in the UK labour market.
It announced that it will be cracking down on sectors where unpaid interns are doing the job of a worker, introducing a new naming scheme for employers who fail to pay employment tribunal awards, and quadrupling employment tribunal fines for employers showing malice, spite or gross oversight.
Ben Wilmott, head of public policy at the CIPD, welcomed the government’s response, stating that it “rightly places more attention on the enforcement of existing rights that can help ensure bad practice will be stamped out wherever it exists”. He said that the CIPD particularly supports the adoption of the right to receive a payslip and terms and conditions from day one.
“We particularly welcome the clear commitment to enshrining the principles of 'good work' and ensuring that they are measured on an ongoing basis,” he added. “Work can and should be a force for good, and the measures announced today, alongside the ongoing consultations with business, will help to ensure that these principles are reflected across the economy.”
Torsten Bell, director of the Resolution Foundation, also welcomed these enhanced enforcement powers, cautioning however that the consultations launched must lead quickly to action.
“The government is right to be taking concrete measures to boost enforcement of our labour market rules and to increase the fines for employers who break them too often,” he said. “In the past we have left individuals to enforce their own rights so a clear role for HMRC in policing sick and holiday pay is welcome.”
Regarding the consultations announced, however, he said: “For some of these, such as the complex issue of employment status, that is sensible. But the risk for others is that the government gives us a topic of conversation when what Britain really needs is an agenda for action.”
Regarding the Low Pay Commission review into requiring firms to pay a higher minimum wage for non-contracted hours, he added that “whether it sees the light of day remains to be seen”.
The government has also pledged to ‘improve pension provision among the self-employed', and to take up Taylor’s recommendation that it should ‘bring together employers and the education sector to develop a consistent approach to employability and lifelong learning’.
IPSE (the Association of Independent Professionals and the Self-Employed) welcomed these proposals. “The lack of pension provision among the self-employed has been a growing concern for some time,” said Chris Bryce, IPSE’s CEO.
He added that: “Ongoing training and skills development are major issues for the self-employed, and the government can help by making training tax-deductible for them (as it is for employees) and by collating and certifying reputable courses to help the self-employed find and choose the right training.”
Unions have been far more critical of the government’s response. Jason Moyer-Lee, general secretary of the Independent Workers Union of Great Britain (IWGB) said: "Like the Taylor Review, it so far appears big on grandiose claims light on substance.
"The most important single thing government could do is introduce effective government enforcement of employment law. They say they will do this but give no indication of how.”
TUC general secretary Frances O'Grady said: "The government has taken a baby step – when it needed to take a giant leap.”
My Thanks to HR Magazine for t5his item,   see them at home

Friday, 2 February 2018

Expiry of Fixed Term Contracts and Unfair Dismissal

Expiry of Fixed Term Contracts and Unfair Dismissal
Does an employer's compliance with the Fixed-term Employees Regulations mean it will have acted fairly when a decision is made not to renew a fixed-term contract?     
Not necessarily, held the EAT in Royal Surrey County NHS Foundation Trust v Drzymala.
               A locum consultant doctor had been employed on a series of fixed-term contracts. A permanent vacancy arose before her contract was due to expire. She was interviewed, along with another candidate, but not appointed. Subsequently she was given notice that her fixed term contract would not be extended. The employer's letter made no mention of a right of appeal or any alternative employment with the Trust.

The Claimant lodged a grievance and was eventually allowed an appeal. An appeal panel concluded that an earlier appeal would have made no substantive difference as to the outcome.

A tribunal found that her dismissal was unfair and the employer appealed. It relied in particular on its contention that it had complied with the non-discrimination regime in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Therefore the employment tribunal was wrong to conclude that the employee was unfairly dismissed.

The EAT rejected this proposition. The general law on unfair dismissal applies to dismissals which arise from non-renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996.

Dismissals by non-renewal of a fixed-term contract are often potentially fair for "some other substantial reason." But they are not a special case attracting different considerations from those normally considered under section 98(4).

In this case, the tribunal was right to consider that the Claimant had been poorly treated by the employer when it failed to pursue a discussion about alternative roles and to provide the Claimant with a timely right of appeal. The finding of unfair dismissal was therefore upheld.

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.

Working Time: Rest Breaks

Working Time: Rest Breaks

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.
Is an employer entitled to meet the 20 minute rest break requirement for workers under the Working Time Regulations by aggregating breaks of a shorter duration?

No, held the EAT in
Crawford v Network Rail Infrastructure Ltd.   

Regulation 12 of the Working Time Regulations 1998 provides for a rest break of not less than 20 minutes if a worker's daily working time is more than 6 hours. Regulation 21(f) provides that a worker in Railway Transport does not enjoy the protection of Regulation 12. Instead, under Regulation 24(a), the worker is entitled to an equivalent period of compensatory rest.

Mr Crawford worked as a relief cover signalman at various signal boxes in the South East. All (save one) boxes were single manned. Although Mr Crawford was not always busy, he was required to continuously to monitor and to be on call to do things when trains were going through.

He could in practice, if he wished, take short 5 minute breaks from his workstation which would amount together to well in excess of 20 minutes over the shift as a whole. But on day shifts it was not possible to have a continuous 20 minute break. The employer argued it could aggregate these shorter periods in order to meet the 20 minute break requirement. Indeed, it argued, this was more beneficial, from a health and safety point of view.

Relying on
Hughes v The Corps of Commissionaires Management Ltd, the EAT held that the employer's system was not compliant. In Hughes the Court of Appeal held that there should be a proper uninterrupted break from work during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest. It was important that, during the rest period, the worker was free from work.

Accordingly, as there was no opportunity on Mr Crawford's shifts for a single continuous break from work of 20 minutes, Network Rail were in breach of their obligations under the Working Time Regulations.
My Comment:     my grateful thanks to the Daniel Barnett site for this piece. 

Bill looking to ban zero-hours contracts moves a step closer

Bill looking to ban zero-hours contracts moves a step closer:

A bill seeking to ban zero-hours contacts and bolster workers’ rights is to come before parliament for a second reading next week.     

Bill sponsor Chris Stephens, MP for Glasgow South West, said the Workers (Definition and Rights) Bill 2017-19 would bring some clarity to the definition of a “worker” in light of recent Supreme Court judgments, and provide greater protection from the first day of a person’s employment.
As well as banning the use of zero-hours contracts, it would also provide more safeguards to those in “precarious” work, such as the hospitality sector.
The bill is due to receive its second reading in the House of Commons on 19 January.
Ahead of its first reading in October, Stephens said the bill went beyond the recommendations made in the Taylor Review of modern employment practices last year, which suggested that workers on zero-hours contracts should have a right to request a contract that guarantees their hours after 12 months in post.
He claimed the Taylor Review, which has advised that zero-hours contracts should not be banned, “gave more weight to the interests of consumers and employers” than to workers’ interests.
He told MPs before the bill’s first reading: “The clear implication is that full-time secure employment with rights, a pension and clearly defined hours is an outdated 20th-century concept, instead of the peak of a hard-fought struggle to redress the balance between employer and employee—or, at its most extreme, exploiter and exploited.”
“The time has come to secure legislation that uses the court judgments to clarify the nature and status of workers today.”
However, employment lawyer John Hayes of Constantine Law said it would be difficult to enforce a ban on zero-hours contracts. He said the Taylor Review’s recommendation of a “pay premium” on the national minimum wage or national living wage for companies that wish to retain a flexible workforce would be more suitable.
“This passes the commercial risk for contingent working from the worker (where it currently sits) to the employer. In short, employers reliant [on] highly flexible workforces will have to pay more, per hour, for labour,” Hayes said.
According to Herald Scotland, Stephens believes certain workers’ rights, such as protections against workers being asked to work more than an average of 48 hours a week,  will be lost when the UK leaves the EU unless MPs pass new legislation. Stephens said it was “frustrating to have the sense of the clock being turned back to Victorian standards of employment”.
My Comment: This has been coming for a while now,  and is no surprise,   but it remains to be seen how much of the bill will get through in its present form!      My thanks to those nice people at     for their excellent resource .