Monday, 3 October 2016

OCTOBER 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  Colleagues and Chums ,

We are well into our Autumn now,  well, it is here in Yorkshire!   There have been no new pieces of employment legislation this month other than the increase in NMW.    (Details on my downloadable info sheet, below)    However the world of employment law grinds ever onward and this edition covers some interesting cases that will make their way into how we view issues in future.  On a personal note, in the first item,  I do regret that it is the local authority that is behind some rather shoddy practice when it comes to paying those hardworking and dedicated mobile care workers.  I always thought local authorities should have been shining examples of best practice.


    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:

Care workers sue over not being paid minimum wage
UNISON is taking a local council and care provider to court over failing to pay the minimum wage
A group of care workers in north London are suing a care contractor over claims it failed to pay them the minimum wage.
Trade union UNISON will represent the 17 care workers, and is taking the contractor Sevacare and the local council Haringey to court in the wage dispute. It is the biggest case UNISON has ever undertaken in this sector.
The group of workers (all women employed on zero-hours contracts) claim that they were paid less than the minimum wage as they were not paid for the time they spent travelling between people’s houses. UNISON says this means the women might be working for 14 hours a day yet only being paid for half of them, earning just £3.85 an hour.

My Comment: this is actually quite an old thread,   it's been debated before, but never actually settled.   It's a bit disturbing to find, yet again,  that a local authority is behind poor conditions in the work-place.  For my generation particularly,  we feel that august bodies like this should be setting a good example on working conditions!
see the full article here

 
Newsflash:

TUPE: Service Provision Change
When a Council-tendered 'park and ride' service closed after a competitor set up at the site, was there a service provision change?

No, held the EAT in C T Plus (Yorkshire) CIC v Stagecoach, turning down an appeal against an employment tribunal's finding that there was no service provision change ('SPC').

The Appellant bus company contracted with Hull City Council to provide a park-and-ride service, subsidised by the Council. Stagecoach set up on its own in competition, which led to the Council cancelling its contract with the Appellant from the day that the Stagecoach service started. An employment tribunal rejected the contention that there was an SPC and hence a TUPE transfer of staff to Stagecoach when the Appellant ceased operations.  The EAT agreed.
My Comment: TUPE in all it's forms continue to challenge the profession,   it seems that we'll  never actually get a definitive answer to the myriad of issues thrown up on this topic. 
       see the full article on my blog page
 
Reasonable Adjustments

Can the duty to make reasonable adjustments for a disabled employee extend to continuing to pay a higher salary when an employee is moved to a lesser role?

Yes, holds the EAT in G4S Cash Solutions (UK) Ltd v Powell.

Due to disability, the Claimant had been moved from an engineering role maintaining cash machines to a less skilled 'key runner' role. After initially having his pay protected, the Respondent proposed reducing the Claimant's pay by around 10%, dismissing the Claimant when he refused the pay cut. The Employment Tribunal found the dismissal to be discriminatory and unfair, and that the reasonable adjustments required extended to maintaining the Claimant's former pay in his new role.

The EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee's pay (along with other measures) to counter a disabled employee's disadvantage. The objectives of the legislation plainly envisage an element of cost to the employer, and 'pay protection' was but one form of cost to an employer. The question will always be whether it is reasonable for an employer to have to take that step to avert a disabled employee's disadvantage.

However, the EAT did not expect that requiring employers to make up pay would be an 'everyday event' for tribunals, and in changed circumstances such an adjustment may cease to a reasonable one an employer has to make.


My Comment:  I do wonder sometimes, what world our legal beagles inhabit !
see the full article

 

New national minimum wage rates commenced from 1st October
The standard rate of the national minimum wage for 21- to 24-year-olds will increase by 3.7% to £6.95 per hour, after the Government accepted recommendations for the new rates from the Low Pay Commission (LPC).
Workers aged between 18 and 20 will see their pay rates rise by 4.7% to £5.55 per hour. The minimum wage for 16- to 17-year-olds increases to £4.00 per hour, a hike of 3.4%, while the apprentice rate increases 3% to £3.40.

 My downloadable pay rates and benefits handy guide,  updated,  see below.

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"     

Reasonable Adjustments

Can the duty to make reasonable adjustments for a disabled employee extend to continuing to pay a higher salary when an employee is moved to a lesser role?

Yes, holds the EAT in G4S Cash Solutions (UK) Ltd v Powell.

Due to disability, the Claimant had been moved from an engineering role maintaining cash machines to a less skilled 'key runner' role. After initially having his pay protected, the Respondent proposed reducing the Claimant's pay by around 10%, dismissing the Claimant when he refused the pay cut. The Employment Tribunal found the dismissal to be discriminatory and unfair, and that the reasonable adjustments required extended to maintaining the Claimant's former pay in his new role.

The EAT found no reason in principle why the duty to make reasonable adjustments would not extend to protecting an employee's pay (along with other measures) to counter a disabled employee's disadvantage. The objectives of the legislation plainly envisage an element of cost to the employer, and 'pay protection' was but one form of cost to an employer. The question will always be whether it is reasonable for an employer to have to take that step to avert a disabled employee's disadvantage.

However, the EAT did not expect that requiring employers to make up pay would be an 'everyday event' for tribunals, and in changed circumstances such an adjustment may cease to a reasonable one an employer has to make.


My Comment:  I do wonder sometimes, what world our legal beagles inhabit !

TUPE: Service Provision Change

When a Council-tendered 'park and ride' service closed after a competitor set up at the site, was there a service provision change?

No, held the EAT in C T Plus (Yorkshire) CIC v Stagecoach, turning down an appeal against an employment tribunal's finding that there was no service provision change ('SPC').

The Appellant bus company contracted with Hull City Council to provide a park-and-ride service, subsidised by the Council. Stagecoach set up on its own in competition, which led to the Council cancelling its contract with the Appellant from the day that the Stagecoach service started. An employment tribunal rejected the contention that there was an SPC and hence a TUPE transfer of staff to Stagecoach when the Appellant ceased operations.  The EAT agreed.

The EAT urged a 'commonsense and pragmatic' approach to the SPC regulations. Here, Stagecoach was carrying out a service as a commercial venture on its own behalf, not on behalf of the Council as a 'client', which is required for an SPC by TUPE regulation 3 (1) (b).

Practitioners may note that the EAT defined the term 'client' in an SPC as 'an organisation that is in a position to carry out activities either itself or by commissioning them from others to carry out those activities on its behalf.


My Comment: TUPE in all it's forms continue to challenge the profession,   it seems that we'll  never actually get a definitive answer to the myriad of issues thrown up on this topic. 

Care workers sue over not being paid minimum wage

UNISON is taking a local council and care provider to court over failing to pay the minimum wage
A group of care workers in north London are suing a care contractor over claims it failed to pay them the minimum wage.
Trade union UNISON will represent the 17 care workers, and is taking the contractor Sevacare and the local council Haringey to court in the wage dispute. It is the biggest case UNISON has ever undertaken in this sector.
The group of workers (all women employed on zero-hours contracts) claim that they were paid less than the minimum wage as they were not paid for the time they spent travelling between people’s houses. UNISON says this means the women might be working for 14 hours a day yet only being paid for half of them, earning just £3.85 an hour.
Care workers who provide live-in care could be earning as little as £3.27 an hour, the union claims. It says this hourly rate is even printed on their payslips. The minimum wage – now known as the National Living Wage – is currently £7.20 an hour.
UNISON general secretary Dave Prentis said the “social care crisis” is only going to get worse because of increasing longevity.
“The blame must be laid at the government’s door,” he added. “Ministers must get tougher with enforcing the law so firms aren’t able to cheat their staff. More money must be put into care so that councils are not forced to tender contracts at a price they know decent care cannot be delivered. No wonder 15-minute care visits are now the norm, and there’s widespread payment of illegal wages.”
Prentis added that UNISON will be stepping up its efforts to recruit care workers to “help them stand up to their law-breaking employers and put a stop to these despicable practices”.
Speaking to HR magazine, assistant director of HR and OD at Camden Council Joanne Brown said HR has a “massive role to play” in building business models in social care that are commercially viable and provide good care and jobs.
“How has care become a race to the bottom? These are people looking after our family and friends,” she said. “Why aren’t social care providers valued as much as NHS workers? They should be."
She added that Camden Council has strict rules about what it expects from its procurement partners in terms of HR processes, including areas such as offering flexible working, training and health and safety.
On pay specifically, the Council is working towards making sure its contractors are paid the London Living Wage (£9.40 an hour), recently re-tendering and awarding its cleaning contracts on the basis of being paid the Living Wage. "The homecare contract has been identified as a priority due to the relatively low pay and terms and conditions for staff," Brown added.
In 2015 a report from the Resolution Foundation suggested underpayment of the minimum wage was rife in the social care sector. It found care workers were losing out on an estimated £130 million a year, with around 160,000 being paid less than the minimum wage. This is due to employers failing to pay staff for all their working time, such as time spent travelling between clients and ‘on call’ time.
Resolution Foundation senior research and policy analyst Laura Gardiner said of the findings: “Social care will need to fill up to a million additional jobs in the next decade to meet the needs of our ageing population, so tackling the broader issue of low pay in this sector is a priority. As well as helping to attract and retain staff and boosting the incomes of low-paid workers, better pay would ultimately lead to improvements in care quality.”

My Comment: this is actually quite an old thread,   it's been debated before, but never actually settled.   It's a bit disturbing to find, yet again,  that a local authority is behind poor conditions in the work-place.  For my generation particularly,  we feel that august bodies like this should be setting a good example on working conditions!

My thanks as always to the excellent HR Magazine for this article see them at