Thursday, 28 May 2015

Exclusivity clauses in zero-hours contracts finally banned

Exclusivity clauses in zero-hours contracts finally banned

Some two months after claiming that they had been banned, the government has finally acted to outlaw the use of exclusivity clauses in zero-hours contracts from 26 May 2015. This and other employment law-related measures are contained in the first commencement order made under the Small Business, Enterprise and Employment Act 2015.
The provisions of the Act, as they affect employment law, coming into force on 26 May are:
  • Section 153 – this bans on the use of exclusivity clauses in zero-hours contracts. Further regulations are awaited dealing with the anti-avoidance aspects.
  • Section 152 – this increases the penalty which can be imposed on an employer that underpays its workers in breach of the National Minimum Wage law. The maximum penalty of £20,000 can now be calculated on a per worker basis rather than on a per employer notice basis.
  • Section 149 – this section enables regulations to be made to prevent discrimination against applicants for NHS roles on the grounds they have made protected disclosures (blown the whistle). No regulations have yet been made and consultation on this is expected.
  • Section 33 (certain parts) and 34 – these enable the Secretary of State to make regulations about the meaning of a ‘small business’ (currently a headcount of fewer than 50 and a specified threshold for turnover and balance sheet) and a ‘micro business’ (currently a headcount of fewer than 10 and a specified threshold for turnover and balance sheet).
We are grateful to HR BULLETS    for this piece   see them at

Tuesday, 26 May 2015

Holiday pay tribunal decision to be appealed

Further uncertainty for employers grappling with the issue of holiday pay and commission payments now beckons with the news that tribunal decision in Lock v British Gas Trading is to be appealed.
The law firm Eversheds (which is acting for British Gas) has confirmed that an appeal has been lodged and that it expects it to be heard towards the end of 2015. As a reminder, the tribunal held that commission and similar payments should be taken into account when calculating statutory holiday pay. From a practical point of view, employers unlucky enough to be on the receiving end of a claim will doubtlessly ask for any proceedings to be stayed while this appeal is decided. They should however make provision for  accruals in their financial accounts for potential liability - because there is after all a binding European decision that commission must be taken into account when calculating holiday pay. See also: ‘Holiday pay and commission – a small step forward’.

My Comment: We've been waiting for this, it was a massive decision that could affect all businesses,
even the smaller ones, as it wasn't just commission earned,  but regular overtime as well.   We watch with great interest.
       Our appreciation to  HR Bullets for this item,  see them at:

Tuesday, 5 May 2015

Employment Law Newsletter MAY edition

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,
        Spring has definitely broken out  even up here in t'north, it's a bank holiday weekend and the election is almost upon us.  The various parties have all declared their manifestos' and some, but not all, have opined on aspects of employment law.  This has mostly been confined to the political "hot potato" of "zero hours" contracts  but also the question of Tribunal fees.   I've included some comment on what's been said, but, you won't be surprised to learn that no one has actually made clear, exactly what their intentions are !
              Read on for details, and, as always, call me or mail me if you have any concerns about this edition's content.

Kind regards,     Paul 

First The News:    Who will you vote for ?

With the help of the excellent Daniel Barnett website here are the views of the major parties with regard to employment law:
Conservative: no change in position:  see p21 top of left column of Conservative manifesto  (manifesto) 

Labour:        abolish the employment tribunal fees system (query: is that the same as abolishing employment tribunal fees?) and (manifesto, p24 penultimate paragraph)

LibDem: review fees to ensure they are not a barrier to justice (manifesto, p46 top bullet point)

Greens: reduce employment tribunal fees to make them accessible to workers (manifesto, p46 halfway down)

UKIP: silent (manifesto - employment section at p41)

If you want to read about the other employment-law related positions of the various political parties, have a look at the Hard Labour guide to employment law election pledges.

My Comment:    Keen not to appear to be supporting any particular party these various links are an excellent source of the various stances. The Hard Labour guide is available on my blog and web-page   
      read full details

Newsflash:   April 2015 employment law changes: an eight point checklist 

However changeable employment law may be, one thing you can rely on is that many of those employment law changes will take effect in April. The introduction of shared parental leave is the significant development for April 2015, but are you aware of the other changes taking effect in April 2015?

1. Shared parental leave takes full effect

The right to take shared parental leave and receive statutory shared parental pay applies to qualifying parents of babies due on or after 5 April 2015. Some employers will have received requests for shared parental leave already.

2. Adoptive parents’ rights are enhanced

Adoptive parents’ rights are to be more closely aligned with those of mothers taking maternity leave.

3. Ordinary parental leave extended

With all the attention focused on the introduction of shared parental leave and pay, it is easy to forget that the right to take up to 18 weeks’ unpaid parental leave (which applies to employees with at least one year’s continuous employment) is being extended.
4. Major changes to pension rights
5. Changes to national insurance
6. Limits on unfair dismissal tribunal awards increase
7. Statutory maternity, paternity and adoption pay increase
8. Statutory sick pay increases                       
   My Comment:   This is my newsletter, so space does not lend itself to full details,  more available on my blog and website    read more 

Auto-enrolment is almost upon you:  even the smallest employer will have to comply.  
I make no apologies for mentioning this again, but I am surprised at the number of enquiries I get from business owners who think they are exempt.  Do please take proper, qualified advice, good friend and colleague Geoff Mathews of  has the knack of making it understandable.  Geoff's  article is also on my blog and website.   (read more)
My Comment:  basically, qualifying employees must be provided with an auto-enrolled pension from their employer, even if they are the only employee.
ECJ: Collective Consultation -  Woolworths Decision
The European Court of Justice has handed down its judgment in the Woolworths and Ethel Austin cases.  The full text is not online yet, but the court's official summary is.
The ECJ held that 'establishment', in the collective redundancy legislation, refers to an individual workplace (or, more accurately, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer as a whole.
So when establishing headcount to see whether an employer needs to engage in collective consultation (required when contemplating 20+ redundancies in a period of 90 days), Woolworths was right to count each store as a separate 'establishment'.  This, in turn, meant that it did not need to engage in collective consultation with staff who worked in a store with a headcount of less than 20.
The ECJ has formally referred the case back to the Court of Appeal, but the Court of Appeal's decision is now likely to be a formality - i.e. reversing the decision of the EAT in the summer of 2013 which set the employment law world afire.
For a full history, see here.

 My Comment:  this is heavy stuff if you're never likely to be involved in a large scale redundancy, but it is interesting to watch the progress through the courts.


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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 354   Nappies not to be disposed of in sanitary bins
At a local party venue the enquirer saw a poster in the ladies toilet stating "Due to Health and Safety Law please do not put nappies in the sanitary bins. Please use the nappy bins provided".
Panel Opinion:
This is not a health and safety issue at all. The notice should simply ask people to use the correct bins provided and possibly explain that this is because nappies take up too much capacity in the restricted sanitary bins. There is no reason at all to call on good old "elf n safety" to strengthen their case.

CASE 317   Takeaway will not allow customers to use their own carrier bags
Since the mandatory 5p carrier bag charge was introduced in Scotland a Scottish takeaway has claimed that because of health and safety regulations they can’t take customers own bags into the kitchen to pack their food in and that customers can’t be allowed to pack the food themselves into their own bags because the food is too hot!
Panel Opinion
Although it is outwith HSE’s remit, the panel agree that it seems reasonable to refuse to take customer’s used carrier bags into a food preparation area for hygiene reasons. However, there is no health and safety rule or practical reason which would prevent customers from putting the food into their own carrier or other bags to take it home. The risk of carrying hot food is no different whether it is a new plastic carrier or the customer’s own bag!