Friday, 1 December 2017
Working Time: Workers can work 12 consecutive days without a Weekly Rest Break
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?)
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 :
Holiday Pay: Important CaseDoes 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
Friday, 3 November 2017
Thursday, 2 November 2017
Not usually, held Lady Wise in NHS 24 v Pillar.
P was a Nurse Practitioner employed to triage patient calls. In 2013 P directed a patient describing symptoms of a heart attack to an out of hours GP rather than the emergency services resulting in a Patient Safety Incident ('PSI'). Following an investigation and disciplinary meeting, she was dismissed.
The employment tribunal was asked to determine whether two previous PSIs which did not result in disciplinary action should have been recorded in the investigatory report considered at the disciplinary hearing. Both earlier PSIs did not result in disciplinary proceedings, although one did involve a failure to spot a cardiac red flag. Whilst the employment tribunal found the decision to dismiss within the band of reasonable responses on the evidence, it found the use of the earlier PSIs was outside of the band of reasonable responses. NHS 24 appealed.
The EAT, overturning the finding of unfair dismissal, identified this was not a case of totting up of warnings but of a lack of clinical competence. It found the approach to the investigation step in BHS v Burchell was generally aimed at its sufficiency not the gathering of too much information (although not ruling out that overzealous or otherwise unfair investigation could render dismissals unfair).
My Comment: I think on balance if I were a patient, I would want to know that someone dealing with me, was clinically competent to do so ! My thanks to the ever informative Daniel Barnett site for this piece.
What will GDPR mean for your firm?The General Data Protection Regulation (GDPR) will be enforceable in the UK from May 2018, updating the way businesses must handle personal data, including what they hold on employees. How is this going to affect HR professionals? HR magazine visited a data protection masterclass hosted by Ashfords to find out.
1) It is an update of previous legislation
A key change from the DPD is an increased scope on who the GDPR applies to. If you are established in the EEA (or the firm processing your data is), you offer your services to residents of the EEA, or you monitor the behaviour of those in the EEA then the rules will apply to you.
2) You may need a DPO (data protection officer) in your team
If you are a public authority, carry out large-scale systematic monitoring of individuals, or carry out large-scale processing of special categories of data or data relating to criminal convictions and offences then you will need to welcome a DPO to your team.
“The DPO needs to report to the board, and they are a protected employee so they cannot be dismissed just because a senior manager doesn’t like what they are saying,” Coughlan explained. “Also, there are certain rules about who can and cannot be a DPO. You cannot, for example, give the role to the CEO as that will create a conflict with their commercial ambition.”
3) The penalties for non-compliance will be considerably harsher
Under the old system the maximum fine for a breach was £500,000. However, the GDPR will increase the amount under a two-tier structure. Less serious incidents could result in a maximum fine of either €10 million (£7.9 million) or 2% of an organisation's global turnover, whichever is greater. The most serious offences have a new maximum fine of up to €20 million (£17.9 million) or 4% of turnover, whichever is greater.
“The consequences of getting this wrong are now extremely significant,” Coughlan said. “But reporting any breach immediately could make things better for you in the long run than if you failed to report it and it was discovered at a later date.”
4) It will still apply after Brexit
The GDPR is a European Directive, so Brexit throws up the question of whether it will still apply.
Secretary of state for culture, media and sport Karen Bradley said it will. “We will be members of the EU in 2018 and therefore it would be expected and quite normal for us to opt into the GDPR and then look later at how best we might be able to help British business with data protection while maintaining high levels of protection for members of the public,” she said.
UK information commissioner, Elizabeth Denham agreed. “I acknowledge that there may still be questions about how the GDPR would work in the UK leaving the EU but this should not distract from the important task of compliance with GDPR by 2018,” she said. “ We’ll be working with government to stay at the centre of these conversations about the long-term future of UK data protection law and to provide our advice and counsel where appropriate.”
5) You should act now
Take steps now to be ready for when this is implemented in May, advised Coughlan. “It’s important to give someone ownership of this,” he said. “Start to try to streamline the data you have – if you find you have data you don’t need just delete it. Start mapping how data flows through your organisation."
He added that businesses should not assume they will not be affected by the changes. “Some firms have said they want to ‘wait and see’ what happens,” he said. “But that could be risky, as we know [Denham] has investigated many types of business, including small firms and charities, in the past.”
My Comment: As if you haven't got enough to do simply running your business, yet more red tape to have to deal with! The fact is though, you will have to deal with it, one way or another. Once again my thanks to those good people at HR Magazine for useful info & updates.