Friday, 30 May 2014

Care worker entitled to NMW for sleep in shift.

Care worker was entitled to be paid minimum
wage for “sleep in” shifts
The Employment Appeal Tribunal (EAT) has recently held, in the case of Mr J Esparon t/a Middle West Residential Care Home v Miss L Slavikovska that “sleep in” night shifts amounted to time work for the purpose of the National Minimum Wage Act 1998.
Miss Slavikovska worked as a care worker at a residential care home. She was required to work a number of “sleep in” night shifts and be available for emergencies. She was paid a lump sum for each sleep in shift which equated to substantially less than the hourly rate of the National Minimum Wage (NMW).
Miss Slavikovska argued that she was entitled to be paid the minimum wage for the sleep in shifts as she was carrying out “time work” for the purposes of NMW legislation. An employment tribunal found in her favour.
Her employer unsuccessfully appealed. In giving judgment the EAT said that when deciding whether an employee is carrying out time work by reason of their presence at an employer’s premises “just in case”, it is important to consider why the employer requires the employee to be on the premises. In Miss Slavikovska’s case the care home had a legal obligation to ensure that at all times an appropriate number of suitably qualified, competent and experienced persons were working at the care home. The EAT said that if, in cases such as this, the employer requires the employee to be on the premises pursuant to a statutory requirement to have a suitable person on the premises "just in case" that would be a powerful indicator that the employee is being paid simply to be there and is thus deemed to be working regardless of whether work is actually carried out. The fact that she was allowed to sleep during the shift was irrelevant.
Amid concerns of non-compliance with minimum wage law within the social care sector HM Revenue and Customs (HMRC) have been targeting this sector. Employers who flout the minimum wage law can expect to face tough sanctions. If you are unsure whether you are complying with your obligations I’m on hand to advise you. 

My comment:     This has long been in contention, and I can't see why. Basically, if an employee is at the demand of the employer,  then they must be at work!

Tuesday, 27 May 2014

Flexible Working Request will Apply to All Employees.


From 30 June 2014, all employees with 26 weeks’ service 
will have the right to request flexible working for any 
reason. There will be no obligation on the employer to 
agree to a request, just to consider it. Julie Keir, professional
support lawyer at Brodies, looks at how employers should
prepare for the change.
The current statutory procedure for dealing with requests is being abolished. Instead, employers will be able to use their own HR processes, provided requests are dealt with reasonably and decided on within three months (unless an extension is agreed). As is the case now, employers will only be able to refuse a flexible working application for one of the eight listed business reasons.
Acas has produced a draft Code of Practice and non-statutory guidance on the extended right to request flexible working. Rather than detailing a required procedure, the code of practice contains broad principles, including the recommendation that employees be accompanied during discussions and given the right to appeal against a refusal.

How should employers prioritise requests?

Although, in our experience, employers who already allow all their employees to make flexible working requests do not generally receive a rush of applications at the same time, concerns were expressed during the Government’s consultation process over how competing requests should be prioritised. If faced with this situation, bear the following points in mind:
  • Even if a number of requests are received at the same time from different employees, look at the business case for each application individually. Consider what part of the organisation the employee works in; what role they play; what flexible pattern they have requested; and what impact it would have on their team and the business as a whole.
  • Even if – in theory – all the requests can be accommodated, this may not be possible in practice because of the overall affect it would have on the business. In this case, a decision needs to be made on the number of flexible working patterns which can be agreed to. Think about how the business context will change once one request has been approved.
  • Check whether or not anyone already on a flexible working pattern would be happy to change it, eg by swapping their days off.
  • Consider whether or not it might be beneficial to have a discussion with all the employees who have applied to work flexibly to see if there is any room for compromise.
  • Discuss with the employees why they want to work flexibly.
  • There is no obligation to prioritise and make a judgment on the most deserving request, although there may be a wish to do so. Subject to the business case for each application being equal, there is a strong case for prioritising requests that are likely to lead to a discrimination claim if refused (eg those from an employee who is disabled or who cares for a young child). Also, there may be merit in taking the potential effect of refusing a request into account, particularly where the employee has made it clear that they would be unable to continue working if it was turned down.
Acas recommends documenting how to prioritise competing requests in a flexible working policy, and sharing that with the workforce. However, employers need to think carefully before doing this because a “one size fits all” approach might unnecessarily restrict their decision-making in the future.

Can employers use waiting lists?

Rather than receiving multiple requests at the same time, it is more likely that employers will receive applications on an ongoing ad hoc basis. At certain times the business may not be able to support any additional flexible working arrangements. In this case, a “first come first served” approach might be appropriate, with a waiting list for unsuccessful applicants who would be informed when circumstances change so as to allow their request to be reconsidered.

What steps should employers take now?

Ahead of the 30 June 2014 changes, employers should take the following steps:
  • Make relevant staff aware that the right to request flexible working is being extended in June.
  • Provide appropriate guidance and training to managers on the obligation to consider requests reasonably and the new three-month timescale.
  • Highlight the need to be able to justify any refusal and the benefits of keeping records of all discussions and decisions.
  • Decide what procedure will be followed in the event of a flexible working application being received.
  • If there is not already one in place, consider introducing a policy for handling flexible working requests. This aids consistency and transparency.
  • Amend existing flexible working policies to reflect the extended right to request flexible working. If the policy reflects the current statutory procedure, consider changing it to allow greater flexibility (particularly in relation to the timing of meetings and outcomes).

Employment status of director on insolvency of company

Employment status of director on insolvency of company   

Can the owner of a company be regarded as an employee for purposes of a claim for a redundancy payment?

Yes, depending on the nature of the relationship between the individual and the company, held the Employment Appeal Tribunal in Secretary of State for BIS v Knight.

The Claimant had been the sole shareholder and Managing Director of a company from the date of its incorporation in 1991 until the day it ceased trading in 2011. In the last 2 years of the company's trading, the Claimant forfeited her salary so as to enable other employees and creditors to be paid and, subsequent to the company's insolvency, applied for a redundancy payment from the Insolvency Service.

The Tribunal received evidence to demonstrate that the Claimant had been engaged by her company by means of an unexecuted contract of employment, which set out a job description, stipulated working hours, stated a salary, provided for eligibility for bonuses and made provision for termination of the Claimant's contract of employment. The Claimant was also able to provide P60s which showed that she had been paid by the company (albeit in varying amounts, which fell below her contractual entitlement) as an employee.

In dismissing the Secretary of State's appeal against the judgment in the Claimant's favour, the EAT reiterated the point that whether or not an individual is an employee of a company is a question of fact. As such, it was not perverse of the Tribunal to find that: (i) the Claimant was an employee of the company; (ii) there was no lack of mutuality or of consideration, and; (iii) the Claimant had not discharged or varied her contract of employment by not taking salary for the last 2 years. The Claimant's entitlement to a redundancy payment of £7,296 from the Insolvency Service would therefore stand.

UNISON wins the right to appeal to the High Court on Tribunal fees

UNISON has been granted permission to appeal the                        
 High Court's decision turning down its Judicial Review application over tribunal fees.

The Court of Appeal decided yesterday that the basis of the issue is of “sufficient general importance to merit permission to appeal”.

In the High Court last year, UNISON challenged the Government’s decision to introduce Employment Tribunal and Employment Appeal Tribunal fees.  The union argued that the introduction of fees would deny access to justice for workers treated unfairly by employers and would therefore be unlawful, and that introduction of fees has a disproportionate impact on women.

The High Court appeared to accept the union's argument, but ruled that because the fees were introduced last year the full impact could not be judged. 

UNISON will ask the Court of Appeal to consider the shocking figures released in March 2014 that revealed Employment Tribunal claims dropped by 79% in the first six months after the Government imposed fees on workers bringing a claim.

Official statistics show that the number of claims received in October to December 2013 was 9,801 – 79% fewer than in the same period in 2012, and down 75% on the period July to September 2013. Sex discrimination claims have dropped by 77% compared to the same period in 2012 and by 82% compared to the previous quarter. And there have been 83% fewer equal pay claims compared to the same period in 2012 - 85% less than the previous quarter.

Figures for tribunal claims lodged between January and March 2014 are expected to be released in June.

Dave Prentis, General Secretary of UNISON, said:

"UNISON has always argued that charging people to bring employment tribunal claims is unfair. We are very pleased that the Court of Appeal believes that our case merits further consideration."

UNISON has been successful in securing a significant concession from the Government, in that claimants who are successful will now generally have their fees reimbursed.

MY COMMENT:    This was only to be expected,  this goes back to the heart of the "access to justice" principle ,   but, the fees were only meant to disuade the cases with no real prospect.
This piece from UNISON's own webpage.

Holiday Pay Must Include Commision says court,

Thanks to Ed McFarlane of Deminos HR for
 preparing this case summary
Does the Working Time Directive require that a worker's statutory holiday pay not be limited to basic salary where commission is a part of remuneration?

Yes, held the European Court of Justice (ECJ), in British Gas v Lock, following the Advocate-General's preliminary ruling on the same case.

Mr Lock was a salesman on a basic salary with variable commission paid in arrears. Mr Lock's commission depended not on the time worked, but the outcome of that work, i.e. sales achieved. Mr Lock could not earn commission whilst on leave, and therefore would lose income by taking it. He brought a claim in the Leicester employment tribunal for his 'lost' holiday pay after taking leave in December 2011 to January 2012.

The employment tribunal made a reference to the ECJ to ask, broadly, if in calculating holiday pay, Member States must take measures to ensure that a worker taking leave is paid by reference to commission payments that the worker would have earned if at work, and, if so, how to work out that holiday pay.

The ECJ answered 'yes' to the first question, but left the calculation as a matter for the national courts to decide on the basis of the rules and criteria set out in the ECJ's case law on paid leave, and in light of the objective of the directive, to ensure that workers take paid leave.

The case reaffirms the principle that where a worker's pay consists of a basic salary and variable elements directly linked to work, then holiday pay should be paid on the basis that a worker receives pay comparable to normal pay whilst on holiday, and is not deterred from taking leave by financial considerations, cf. the pilots' case, Williams v British Airways.

The case leaves open the question of how best to ensure that the objectives of the directive are met, but did not consider whether employers might require workers to take their full entitlement to leave, thereby ensuring that they are not 'deterred' from taking leave, and it may be that some form of 'rolling-up' of commission on an averaging basis might be the best way forward.

Practitioners may wish to consider advising clients to review their contractual leave arrangements with a view to ensuring that commission or other relevant variable payments are factored into holiday pay due under the Directive. Any amendments to the Working Time Regulations to implement the effect of this judgment may take some time.
MY COMMENT:    it was only a matter of time before this one came up,  in order to not have to pay out commisions on (in effect) no sales,    companies need to consider averaging out payments,  quite doable,  with a bit of thought!      My Thanks to the Daniel Barnett  website for this piece.