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

holdingimage.jpg
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 https://www.personneltoday.com/hr/bill-looking-ban-zero-hours-contracts-moves-step-closer/     for their excellent resource . 

Friday, 1 December 2017

DECEMBER 2017 EDITION 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
Hello  Colleagues ,  readers and chums,

   Well here we are again, December issue as we approach the festive period.   Keen eyed  readers will notice something of a trend in employment law developing here.
      It is basically that that this whole issue of the "gig economy"  self-employed V Worker status and worker rights is growing legs!    It all started with the Sports Direct and McDonalds cases,   reappeared in the Pimlico Plumbers case,  and developed through the UBER,  CITY SPRINT and then DELIVEROO .    On it's way the movement dragged in the matter of zero hors contracts.    Now,   we have this case  KING V SASH WINDOWS , were a man working under the guise of self employment has now claimed he was a worker and therefore entitled to holiday pay for this whole time working at the company, the courts have found he IS owed all the back holiday pay  PHEW!  
read my first item on this,   it is genuinely scary.


On a personal note, I would like to thank you for being one of my readers, and for sticking with me, you are valued!    And, whatever your belief,  I wish you a happy and peaceful festive period for you and your family  and a prosperous new year. 

                      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:

Holiday Pay: Important Case
 
Does a worker who does not take paid annual holiday, because the employer refuses to pay, carry over his entitlement to paid holiday or is it lost at the end of each holiday year?
It carries over, held the CJEU in King v Sash Windows.                                  
Mr King was believed to be self-employed, and his 'employer' therefore did not give him paid holiday. But a tribunal held he was a worker and thus entitled to 5.6 weeks' paid annual leave. The employer argued that the Working Time Regulations 1998 provide that if paid holiday is not taken in a leave year, then it is lost.
The CJEU, in an important judgment, disagreed. It held that if a worker is prevented from taking their paid holiday because the 'employer' won't grant the paid holiday, they are being prevented from exercising EU rights. As such, they cannot be stopped from bringing a claim just because a new holiday year starts, and insofar as the UK Regulations say that the worker loses the right, they are incompatible with EU law and must be disregarded.
        More fundamentally, the CJEU held that an employer who fails to grant paid holiday to workers should not be entitled to the benefits of the normal limits on how much can be carried over (as set out in Plumb v Duncan Print). In fact, the backpay claim can go all the way back to 1996, when the original Working Time Directive came into force (the Working Time Regulations 1998 were implemented two years late).
         The practical ramifications are that employers whose 'self employed' contractors turn out to be 'workers' (Uber, Pimlico Plumbers, CitySprint etc) may find themselves facing very substantial holiday pay bills, dating back 20 years. Since this ruling only applies to 4 weeks' EU holiday (rather than all 5.6 weeks of UK holiday), the bill could be 20 years x 4 weeks = 80 weeks' pay per worker.
         There must also be very considerable doubt over whether the EAT's decision in Bear Scotland v Fulton, which held that tribunals cannot award backpay for unpaid holiday leave beyond any 3 month break in unpaid EU holiday leave,  can survive this CJEU decision.
         For an excellent summary of the case and its ramifications, see this blogpost by Caspar Glyn QC.


My thanks to the Daniel Barnett site for this piece

see this item on my blog page



 


Newsflash:
 

Fair dismissal for refusing to work Christmas:


 An employment tribunal held that a food company employee was fairly dismissed after she refused to do overtime in the run-up to Christmas and complained about being asked to work extra hours, causing discontent among colleagues.
In Edwards v Bramble Foods Ltd, the tribunal held that an employer fairly dismissed an employee who refused to do overtime and whose protests at being asked to do so threatened to disrupt the business.
A small food company’s busiest period is the eight weeks from mid-September, when it produces and packs goods such as gifts and hampers for Christmas.
Employees’ contracts of employment include a clause requiring them to work extra hours when the business requires.
The company decided to formalise its overtime arrangements, which involved asking employees to choose between four and eight Saturday mornings they could work in September and October.
While the rest of the workforce agreed to work some Saturdays, Mrs Edwards refused to work on Saturday mornings.
read the full story
 
 

And finally tonight ! 

MPs publish draft Bill to close gig economy loopholes

                                                                                        
A new 'worker by default' status has been recommended by a joint draft Bill on ending gig economy exploitation from the Work and Pensions and Business CommitteesIf rolled out the onus would fall on companies to prove self-employed status, rather than forcing workers to via the courts. Otherwise the company would be obliged to offer worker-status benefits such as holiday and sick pay.
The two committees, which have based their draft Bill on recommendations made in the Taylor Review, have also recommended companies be fined if they falsely classify people and deny them benefits. It suggested ‘a significant increase in fines for offending employers’, as well as ‘an obligation on employment tribunals to consider the increased use of higher, punitive fines and costs orders if an employer has already lost a similar case’.
The draft Bill stated that: ‘The current situation puts an unacceptable burden on workers to address poor practice through an expensive and risky court case while the companies themselves operate with relative impunity.’
The Bill also proposes setting a wage premium for workers without contracted hours that is above the national minimum (£4.05 to £7.05 depending on age) and living wage (currently £7.50 an hour). It argues this could prompt employers to offer more stable work and ensures agency workers are not paid less than permanent employees doing the same job.
The committees have also called for ‘concentrated deep dives' in sectors and areas where there is evidence of frequent exploitation.
“The Bill would put good business on a level playing field, not being undercut by bad business,” said Frank Field, the Labour chair of the Work and Pensions Committee. “It is time to close the loopholes that allow irresponsible companies to underpay workers, avoid taxes and free-ride on our welfare system."
Frances O'Grady, general secretary of the TUC, welcomed the proposals. "Employment status is complex and can deprive people of their rights at work,” she said. “So the committees are right to call for reform and wide consultation. The time has come for a Royal Commission, including trade unions and employers."
But Neil Carberry, managing director for people and infrastructure at the CBI, said the recommendations risk limiting flexibility for businesses. “Based on a very limited review of the evidence the committees have brought forward proposals that close off flexibility for firms to grow and create jobs, when the issues that have been raised can be addressed by more effective enforcement action and more targeted changes to the law," he said.
The GMB union said it was disappointed at the limited ambition of the report. “If these plans go ahead they may make a small difference,” said Tim Roache, GMB general secretary. “However, the fact remains that without real investment in HMRC and a political will to get tough on rogue employers who are cheating the British taxpayer out of millions and reaping profits out of worker exploitation, then there will be no significant change.”
He added: “We need proper legislation to stop unscrupulous bosses exploiting workers by ensuring employment rights from day one, abolishing zero-hours contracts, and restricting those who make temporary and agency work a permanent feature of their business model by employing them on lower rates than the rest of the workforce.”
The joint draft Bill comes in the wake of a recent test case ruling by the Central Arbitration Committee (CAC) that Deliveroo riders are correctly classified as self-employed. It also closely follows Uber losing an employment appeal tribunal against an earlier decision to grant its drivers workers' rights.

my thanks to HR magazine for this article   see them at :
 
 

To all who take the time to read my offering, to those who mail in with your questions, and to all my clients and chums who bother to tell me they actually read this stuff,  and find it useful,   my heartfelt thanks !
      May  I wish you a contented and peaceful festive holiday with your families.

Merry Christmas and my very best wishes:
Regards


Paul Murray

 
Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:

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"     

Working Time: Workers can work 12 consecutive days without a Weekly Rest Break


Working Time: Workers can work 12 consecutive days without a Weekly Rest Break

holdingimage.jpg
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.
Does the EU Working Time Directive allow for weekly rest for a worker of 24 hours to be given at any point in a 14-day period?

Yes, held the European Court of Justice in Maio Marques da Rosa v Varzim Sol. The case arose from a redundant casino worker in Portugal, who claimed his employer had not given him a weekly rest period of 24 hours at the appropriate time, and it should have been given at the latest after six consecutive working days. The casino operated 12 hours a day, 364 days of the year.

The CJEU held that there was no requirement for weekly rest to be provided after six consecutive days of work, it can be provided within each 7-day period. Therefore, the Directive allows a working pattern with a rest day at the start of one 7-day period and another rest day at the end of the following 7-day period, so working 12 consecutive days is permissible under the Working Time Directive.
 
My Comment :  My thanks to the excellent Daniel Barnett site for this interesting piece.    It is a small item that almost escaped everyone's attention,   but it is a whole new way of interpreting the regulations.   So,  according to this judgement,   it is technically possible to have an employee work a continuous 12 consecutive days without a weekly break !     No one has ever though of trying this!      (mind you,    why would you?)  

MPs publish draft Bill to close gig economy loopholes

 

                       
​A new 'worker by default' status has been recommended by a joint draft Bill on ending gig economy exploitation from the Work and Pensions and Business Committees
If rolled out the onus would fall on companies to prove self-employed status, rather than forcing workers to via the courts. Otherwise the company would be obliged to offer worker-status benefits such as holiday and sick pay.
The two committees, which have based their draft Bill on recommendations made in the Taylor Review, have also recommended companies be fined if they falsely classify people and deny them benefits. It suggested ‘a significant increase in fines for offending employers’, as well as ‘an obligation on employment tribunals to consider the increased use of higher, punitive fines and costs orders if an employer has already lost a similar case’.
The draft Bill stated that: ‘The current situation puts an unacceptable burden on workers to address poor practice through an expensive and risky court case while the companies themselves operate with relative impunity.’
The Bill also proposes setting a wage premium for workers without contracted hours that is above the national minimum (£4.05 to £7.05 depending on age) and living wage (currently £7.50 an hour). It argues this could prompt employers to offer more stable work and ensures agency workers are not paid less than permanent employees doing the same job.
The committees have also called for ‘concentrated deep dives' in sectors and areas where there is evidence of frequent exploitation.
“The Bill would put good business on a level playing field, not being undercut by bad business,” said Frank Field, the Labour chair of the Work and Pensions Committee. “It is time to close the loopholes that allow irresponsible companies to underpay workers, avoid taxes and free-ride on our welfare system."
Frances O'Grady, general secretary of the TUC, welcomed the proposals. "Employment status is complex and can deprive people of their rights at work,” she said. “So the committees are right to call for reform and wide consultation. The time has come for a Royal Commission, including trade unions and employers."
But Neil Carberry, managing director for people and infrastructure at the CBI, said the recommendations risk limiting flexibility for businesses. “Based on a very limited review of the evidence the committees have brought forward proposals that close off flexibility for firms to grow and create jobs, when the issues that have been raised can be addressed by more effective enforcement action and more targeted changes to the law," he said.
The GMB union said it was disappointed at the limited ambition of the report. “If these plans go ahead they may make a small difference,” said Tim Roache, GMB general secretary. “However, the fact remains that without real investment in HMRC and a political will to get tough on rogue employers who are cheating the British taxpayer out of millions and reaping profits out of worker exploitation, then there will be no significant change.”
He added: “We need proper legislation to stop unscrupulous bosses exploiting workers by ensuring employment rights from day one, abolishing zero-hours contracts, and restricting those who make temporary and agency work a permanent feature of their business model by employing them on lower rates than the rest of the workforce.”
The joint draft Bill comes in the wake of a recent test case ruling by the Central Arbitration Committee (CAC) that Deliveroo riders are correctly classified as self-employed. It also closely follows Uber losing an employment appeal tribunal against an earlier decision to grant its drivers workers' rights.

my thanks to HR magazine for this article   see them at :