Sunday, 6 May 2018

MAY 2018 EDITION OF EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  Readers,  colleagues and Chums,

 No great earth shattering employment changes this month other than of course,   on the 25th May 2018 the implementation of the new GDPR regulations of which I have mentioned previously.   I trust most of you will have at least addressed the matter,  do remember,  for my retained clients I have a small library of fact sheets and general info and also a "a privacy statement"   and  a generic "Data Protection Policy"   document. In template format of course,  one is eight pages and the other 12 pages, you will need to fill in the relevant sections with regard to your own set up of course.  
     
              Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News:

If an employee works without protest after a variation of contract is imposed, should acceptance be inferred?

Not necessarily, held the Court of Appeal in Abrahall v Nottingham City Council.

When Nottingham City Council sought to regularise a variety of pay systems, it implemented a single system with pay scales determined on a spinal column points basis. The Court of Appeal found the employees were contractually entitled to annual incremental pay progression.

Soon after the new system was implemented, the council brought in a two-year pay freeze. Throughout that period, there was no industrial action (save for a consultative ballot) and no affected employee raised a grievance. When Nottingham proposed an extension of the freeze, the unions activated a collective grievance procedure and then brought these claims.

Apart from deciding whether there was a contractual right to incremental pay progression, the key issue before the Court of Appeal was whether the employees should be taken to have accepted a variation of their contracts by working for two years under the pay freeze.

The Court of Appeal held that they should not, setting out a number of helpful principles on whether acceptance should be inferred, including:

the question is to be determined objectively;

acceptance of a variation of contract should only be inferred from conduct where that conduct brooks no other reasonable explanation save for acceptance;

where the variation is wholly disadvantageous, acceptance is less likely to be inferred;

collective protest may suffice to negative any inference otherwise to be drawn even if the individual employees themselves say nothing;

an employer's reliance on inferred acceptance will be weakened where the employer represented that there was no variation of contract and thus that acceptance was unnecessary.

our thanks to the ever excellent Daniel Barnett site for this informative piece. 
 


Newsflash: 
 
In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it?

No, held the EAT in Mirab v Mentor Graphics (UK) Ltd.  Rather, the decision not to consider 'bumping' must be viewed through the 'range of reasonable responses' test.

Bumping occurs when an employee whose role is redundant is redeployed into another role, and the displaced occupier of that (second) role is dismissed instead.

In Mirab, the Claimant's role had been made redundant and the tribunal held that the dismissal was a fair redundancy dismissal. The tribunal found that the Respondent had done enough in terms of looking for alternatives, and had not been required to consider 'bumping' any other employees because the Claimant had not raised the possibility.

The EAT held that that was an error. There is no rigid rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy case. Equally, there is no rule that says an employer does not need to consider bumping unless the employee raises it.  The question is always for the tribunal to determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.

The informative Daniel Barnett site has provided this interesting piece ,  our  thanks
 
Can holiday pay for term-time workers be capped at 12.07% of pay under the Working Time Regulations?

No, held the EAT in Brazel v The Harpur Trust, upholding a visiting music teacher's appeal on the approach to calculating her holiday pay.

The Claimant worked at the Respondent School in term-time on a zero-hour contract. The School calculated holiday pay pro rata to the proportion of the year worked, paying it at 12.07% of a term's pay (i.e. using the percentage reflecting 5.6/46.4 weeks). On a working 'year' of 32-35 weeks, the effect of this was that holiday pay came out lower that if calculated on the basis set out in s224 ERA, taking a 12-week average of pay from weeks actually worked, and ignoring the out-of-term weeks. The EAT held that basing holiday pay on the 12-week average was the correct approach.

The effect of the 12-week average approach is that holiday pay as a percentage of annual earnings for a part-timer on a 32-week 'year' would be 46.4/32 x 12.07% = 17.5%, giving proportionately more holiday pay than a worker working throughout the year getting 5.6 weeks paid leave.

The EAT noted that part-timers are entitled to be treated no less favourably than full-time workers, there is no scope for calculating holiday pay under the Working Time Regulations so as to avoid a 'windfall' for part-timers, or to avoid full-timers not being treated less favourably. The EAT noted that this judgment would be of importance for some schools and teachers.

The Daniel Barnett site provided this timely reminder about holiday pay.

Other tribunal decisions in the headlines

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.

This piece also from the Daniel Barnett  site. 

 


Additionally:
In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"       
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
Case 332 - Passenger’s coffee had to be placed on table by train trolley attendant

Issue

Enquirer was on a train and ordered a coffee off the trolley service. They were seated in the window seat and had a passenger next to them. The attendant poured a coffee and put a lid on the insulated cup. The enquirer reached across to take the cup from him but the trolley assistant insisted that he could not do this. He explained that health and safety regulations stated he could not hand him the cup, and he had to physically place it on the table.

Panel decision

There is no specific health and safety regulation which specifies that hot drinks must be placed directly on to passengers’ tables. The measure is a policy decision introduced by the train operator to reduce the risk of scalding if people spill or drop a hot drink being handed to them at their seat, especially in the event of a sudden movement of the train. There has been a reduction in scalding incidents on trains recently, which, coupled with a rising trend in passenger numbers, tends to suggests that such policies are reasonable and can have a positive impact.

Case 331 - Coach driver unable to turn off inside overhead lights

Issue

Enquirer was travelling on a coach when the driver made an announcement that he could not turn off two small LED overhead lights due to health and safety reasons. There were still blue LED lights running the entire length of the coach at ground level along the walkway.

Panel decision

Overhead lights are provided to assist passengers who, for example, may want to read at night. Their use should be at the discretion of the passenger and there is no health and safety reason why they could not be switched off. If there was some other reason why the lights on this particular coach could not be turned off the driver should have provided a proper explanation instead of wrongly using ‘health and safety’ a

Friday, 4 May 2018

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?

 

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.

This piece also from the Daniel Barnett  site. 

Can holiday pay for term-time workers be capped at 12.07% of pay under the Working Time Regulations?

Can holiday pay for term-time workers be capped at 12.07% of pay under the Working Time Regulations?

No, held the EAT in Brazel v The Harpur Trust, upholding a visiting music teacher's appeal on the approach to calculating her holiday pay.

The Claimant worked at the Respondent School in term-time on a zero-hour contract. The School calculated holiday pay pro rata to the proportion of the year worked, paying it at 12.07% of a term's pay (i.e. using the percentage reflecting 5.6/46.4 weeks). On a working 'year' of 32-35 weeks, the effect of this was that holiday pay came out lower that if calculated on the basis set out in s224 ERA, taking a 12-week average of pay from weeks actually worked, and ignoring the out-of-term weeks. The EAT held that basing holiday pay on the 12-week average was the correct approach.

The effect of the 12-week average approach is that holiday pay as a percentage of annual earnings for a part-timer on a 32-week 'year' would be 46.4/32 x 12.07% = 17.5%, giving proportionately more holiday pay than a worker working throughout the year getting 5.6 weeks paid leave.

The EAT noted that part-timers are entitled to be treated no less favourably than full-time workers, there is no scope for calculating holiday pay under the Working Time Regulations so as to avoid a 'windfall' for part-timers, or to avoid full-timers not being treated less favourably. The EAT noted that this judgment would be of importance for some schools and teachers.

The Daniel Barnett site provided this timely reminder about holiday pay.

In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it?

 
In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it?

No, held the EAT in Mirab v Mentor Graphics (UK) Ltd.  Rather, the decision not to consider 'bumping' must be viewed through the 'range of reasonable responses' test.
 
Bumping occurs when an employee whose role is redundant is redeployed into another role, and the displaced occupier of that (second) role is dismissed instead.

In Mirab, the Claimant's role had been made redundant and the tribunal held that the dismissal was a fair redundancy dismissal. The tribunal found that the Respondent had done enough in terms of looking for alternatives, and had not been required to consider 'bumping' any other employees because the Claimant had not raised the possibility.

The EAT held that that was an error. There is no rigid rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy case. Equally, there is no rule that says an employer does not need to consider bumping unless the employee raises it.  The question is always for the tribunal to determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.

The informative Daniel Barnett site has provided this interesting piece ,  our  thanks

If an employee works without protest after a variation of contract is imposed, should acceptance be inferred?

 
If an employee works without protest after a variation of contract is imposed, should acceptance be inferred?

Not necessarily, held the Court of Appeal in Abrahall v Nottingham City Council.

When Nottingham City Council sought to regularise a variety of pay systems, it implemented a single system with pay scales determined on a spinal column points basis. The Court of Appeal found the employees were contractually entitled to annual incremental pay progression.

Soon after the new system was implemented, the council brought in a two-year pay freeze. Throughout that period, there was no industrial action (save for a consultative ballot) and no affected employee raised a grievance. When Nottingham proposed an extension of the freeze, the unions activated a collective grievance procedure and then brought these claims.

Apart from deciding whether there was a contractual right to incremental pay progression, the key issue before the Court of Appeal was whether the employees should be taken to have accepted a variation of their contracts by working for two years under the pay freeze.

The Court of Appeal held that they should not, setting out a number of helpful principles on whether acceptance should be inferred, including:

the question is to be determined objectively;

acceptance of a variation of contract should only be inferred from conduct where that conduct brooks no other reasonable explanation save for acceptance;

where the variation is wholly disadvantageous, acceptance is less likely to be inferred;

collective protest may suffice to negative any inference otherwise to be drawn even if the individual employees themselves say nothing;

an employer's reliance on inferred acceptance will be weakened where the employer represented that there was no variation of contract and thus that acceptance was unnecessary.

our thanks to the ever excellent Daniel Barnett site for this informative piece.

Saturday, 7 April 2018

APRIL 2018 EMPLOYMENT LAW NEWS

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser
                                        EDITORIAL

Hello  Colleagues, Readers and Chums ,  this month I make no apologies for the length of my "coffee and doughnut item"    It is an essential read for you all.   For those of you kind enough to have contacted me  regarding my little collection of library items on GDPR you will find this piece invaluable and. I hope,   reassuring.    I am grateful to my professional colleagues at BSA Marketing for compiling this down to earth, real world view of the whole issue.  I have had clients contacting me to say they received offers to attend "important training seminars" at £600 a head to learn "all about GDPR and avoid the crippling fines if you get it wrong"  !!      For crying out loud, it is not that difficult ,     The humungous fines quoted are meant for the likes of Facepage and Fritter who have millions of peoples data on file.  Most of us simply have the details on our employees or clients.    To quote that TV advert,   "stress not!" 

           Read on for details of this months reports and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News:

Government announces holiday and sick pay for gig workers
 
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.

My thanks to HR magazine for their continuing pieces.
read the full piece here on my blog page
 

 
Newsflash:
 
As of April 2018, the following changes apply:


With effect from 1 April 2018:
 
  • The rate of Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay and Statutory Shared Parental Pay increases from £140.98 to £145.18 per week.
 
  • The hourly rate of the National Living Wage (the rate for workers who are aged 25 and over) increases from £7.50 to £7.83. At the same time, the National Minimum Wage for workers aged at least 21 but under 25 rises from £7.05 to £7.38 per hour, the rate for workers who are aged at least 18 but under 21 increases from £5.60 to £5.90 per hour and the rate for workers aged 16 or 17 rises from £4.05 to £4.20 per hour. The apprentice rate rises from £3.50 to £3.70 per hour.
 
  • The accommodation offset increases from £6.40 to £7.00 per day. The accommodation offset applies when an employer provides an employee with housing as part of his or her job. In these circumstances, a daily accommodation offset can be taken into account for the purposes of calculating whether or not the national minimum wage has been paid.

With effect from 6 April 2018:
 
  • All payments made in lieu of notice, whether contractual or not, will be subject to tax and Class 1 National Insurance contributions.
 The minimum level of employer contribution into a pensions auto-enrolment scheme increases from 1% to 2%.
 The maximum amount of a week's pay for the purpose of calculating the basic award for unfair dismissal and a redundancy payment increases to £508 a week.
 The maximum amount of the compensatory award for unfair dismissal increases to £83,682.
 The rate of Statutory Sick Pay increases from £89.35 to £92.05 per week.

 


And this, just in: my coffee and doughnut item!    seriously ,  read this    will assist you to get a grip on the whole issue!

We need to talk about….GDPR

 
The imminent implementation of the General Data Protection Regulation is one of the most talked about subjects in business just now. Everyone seems to have a different opinion on what the impact for business will be. There is a great deal of hype and even fear being generated around GDPR and B2B email marketing. Therefore, I feel it would be useful to have a look at some of the key facts in relation to SME businesses.
           Before I start, this article is my opinion of the regulations, not a definitive legal interpretation. GDPR is a document full of legalese and EU-speak. However, the principles are not designed to put unnecessary barriers on people doing good, honest business. They are designed to give individuals reasonable protection in an increasingly complex world. No bad thing in my opinion.      There has been a great deal of ‘fear talk’  and I want to establish some balance.              I am not proposing to attempt to deliver a ‘One size fits all’ approach to GDPR. Rather I am looking objectively at the regulation based on the output of key partners to the regulation including the ICO (Information Commissioners Office) and the DPN (Data Protection Network)                  The ICO is the UK representative on the EU’s Article 29 Working Party  – the EU body at the heart of GDPR.
The DPN is dedicated to providing expert opinion, quality resources and learning materials, to both experts and non-experts in the field of Data Protection and Privacy.

GDPR is coming.

One thing is for certain:
GDPR will apply from 25 May 2018
So what should you do about GDPR in your business?
First and foremost, you shouldn’t ignore GDPR. I believe there are 4 key issues to consider:
  1. Is it legitimate for you/your company to hold & process personal data as you do?
  2. Have you assessed the data you hold to check it is appropriate?
  3. Have you assessed potential risks arising from any data breach and have you taken reasonable steps to protect against any such breach
  4. What procedure do you have in place to take appropriate action in the event of a breach resulting in the unauthorised release of personal data
To look at these another way:
  • You need to be comfortable that your business operates within the regulations
  • You need to be aware of the principles of GDPR and the rights of ‘Data Subjects’ regarding the data you hold on them.
  • Your policies (e,g, Data Protection/Privacy policies on your website) should meet the requirements of GDPR
  • You should be ready to engage openly with people about the data you hold
  • You should respect the rights of Data Subjects to say ‘No Thank You’

The principles

I have read around the subject of GDPR. The principles behind the regulations actually seem to come down to four words: Reasonable, civilized, common senseIf you hold information on a person, you should respect that data and only use (‘process‘ in the jargon) the data in ways that are – to quote the Advertising Standards Authority:
  • Legal
  • Decent
  • Honest
  • Truthful
The idea applies here to all data, not just that used for Advertising & Marketing, in addition, I think we should also add the principle of openness.
If someone holds data on you it is reasonable that, if you want, they should be open about letting you know what information they hold, why they hold it and how they use it. Furthermore, you should have the right to oblige someone holding your personal data to stop using it – unless there is some higher legal obligation.

Must I gain opt-in consent from my data subjects?

This is a key question from businesses using data for marketing and the answer, in short, is No!
Consent is not an absolute requirement under GDPR
Understandably, there is a lot of emphasis on consent. In many instances, getting the consent of a data subject to hold and process their personal data may be ideal. Getting specific opt-in consent should never be a bad thing though sometimes it is impractical.              Under the GDPR, there are 6 ‘Lawful Bases’ for processing data. Consent is listed first although there is no hierarchy in the list. Each ‘Lawful Basis’ has the same weight.            In practical terms, the basis most likely to be relevant to marketers (B2B in particular) is ‘Legitimate Interest’

Legitimate Interest in GDPR

The GDPR states,
‘the processing of Personal Data for direct marketing purposes may be regarded as carried out for a legitimate interest.’  An organisation may wish to rely upon Legitimate Interests where Consent is not viable or not preferred and the Balance of Interests condition can be met.
Note the phrase: “may be regarded as…”, so organisations will still need to ensure they can establish necessity and balance their interests with the interests of those receiving the direct marketing communications. This may be where consent is not viable or not preferred, though the DPN rightly stresses the fact that organisations will still need to show that there is a balance of interests – their own and those of the person receiving the marketing.
Though the GDPR does not list all circumstances in which legitimate interests may apply, it does specify that any processing under this banner meets the balance of interests condition – are the interests of the controller overridden by the interests or rights of individuals?
The DPN’s guidance document explores these ideas and gives a range of examples (though these are predominantly B2C)

Is the Legitimate Interest basis appropriate for my business?

There is a difference between B2C where you are targeting individuals and B2B where you are using personal data to actually target job roles. Consequently, in B2B it may be easier to establish Legitimate Interest relevance. In B2C, particularly where children, the elderly or more vulnerable adults are involved, if you apply the common sense approach I talked about earlier, you will see that things become more complicated.
Please Note: The above are my own views based on my research, not a definitive legal opinion. For more detailed advice on the application of GDPR to your business, I recommend you approach a GDPR specialist.
My Comment : I am grateful to my professional  colleague  David Wright at BSA Marketing for this excellent piece   see the full item at BSA marketing

or read it on my blog page