Author Archives: Geoffrey Lamb

UBER – Latest Case

Uber’s Application to take its Appeal straight to the Supreme Court, thereby bypassing the Court of Appeal, has been refused.

This means that the Appeal against the decision that Uber drivers are “workers” (rather than self-employed contractors) and entitled to the rights associated with that status (e.g. holiday pay) will now be heard by the Court of Appeal some time in 2018.

In February the Supreme Court is going to hear an Appeal in the case of Pimlico Plumbers.  That will be an opportunity to review the whole question of worker status.

Watch this space.

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Holiday Pay

The European Court of Justice has recently made an important ruling in an English case referred to it concerning holiday pay.  It is a decision which will have important and far reaching implications for Uber drivers and others in a similar situation.

The question for the Court was whether a worker who does not take paid annual holiday because the employer refuses to pay holiday pay carries over his entitlement to paid holiday or loses it at the end of each holiday year.

In a nutshell, it carries over in those circumstances.  The employer took the view that the worker was self-employed and therefore not entitled to holiday pay.  The worker was actually working on a self-employed commission only contract from the 1 June 1999 until he retired on the 6 October 2012.  When he took annual leave it was unpaid.  On retiring he sought to recover payment for his annual leave – both taken and untaken – for the entire period of his engagement.  The employer argued that under the UK Working Time Regulations if paid holiday is not taken in a leave year it is lost.

The European Court decided that, if the worker is prevented from taking their paid holiday because the employer won’t allow paid holiday, then the worker is being prevented from exercising his EU right to statutory holiday and cannot be stopped from bringing a claim simply because a new holiday year has started.  The Working Time Regulations that says a worker loses his right to carry over is incompatible with EU law and, what is more, the back pay claim could go all the way back to 1996 when the European Working Time Directive came into force.

Judgement

Therefore employers, whose self-employed contractors are now deemed to be “workers”, could face substantial claims dating back 20 years.  The only consolation for employers is that this only applies to 4 weeks’ holiday a year (rather than 5.6 weeks allowed in the UK) as that is the EU minimum holiday entitlement.  Nevertheless, if a worker has been engaged that long, the bill for an employer could be 20 years x 4 weeks = 80 weeks’ pay per worker.

For further information and advice, please contact Geoff Lamb at our office.

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Update on Recovery of Employment Tribunal Fees

The Refund Scheme is now open to everyone who has paid fees in connection with a Tribunal Claim or an Appeal since July 2013.

You can apply if one of the following circumstances applies to you:-

(1)      you paid the fees and made the claim;

(2)      you paid the fees for someone else to make the claim; or

(3)      you paid the fees a Tribunal ordered you to pay to someone who brought a claim against you.

To apply online go to https://employmenttribunals.service.gov.uk

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Data Protection – Don’t get caught out!

As from the 25 May 2018 the existing law on Data Protection will be repealed and replaced by a new Act to work alongside the General Data Protection Regulations (GDPR).  New sweeping powers to punish breaches in respect of Data Protection you hold on employees, customers, suppliers and clients will be introduced.  Failure to report a breach, as well as the breach itself, could result in a heavy fine.

Many of the principles and main concepts in the GDPR are much the same as in existing legislation that there are new elements which businesses (and key people within them) will need to take on board.

The Information Commissioners Office has issued a document listing 12 steps we can all be taking now to prepare for the changes.  This can be accessed on the ICO’s website https://ico.org.uk

In the New Year we will be offering a service to business clients to assist them in ensuring their existing Policies and procedures accord with the new Regulations.  This is intended for those clients who do not have the time and resources to carry out an audit of existing arrangements.  Educating key people in the organisation is going to be essential.

For more information please contact Geoff Lamb at our office.

Posted in Commercial Litigation, Legal Briefs | Comments closed

Leave for Grieving Parents

A long overdue Bill is to be presented to Parliament entitling parents who lose a child under the age of 18 to at least 2 weeks parental bereavement leave to be taken before the end of the period of 56 days beginning with the date of the child’s death.  Any employee, regardless of length of service, will be entitled to that leave.

Also, those parents who have 26 weeks’ continuous service will receive statutory parental bereavement pay.  Employers will be able to recover the cost from the Government.

The new entitlements will apply in the case of stillbirths after 24 weeks of pregnancy.

In the case of more than one child dying the entitlements will be in respect of each child.

Hopefully this Bill will receive a smooth passage through Parliament.  All employers are no doubt understanding and flexible when an employee suffers the loss of a child but until now there has been no legal obligation to allow parents time off to grieve.

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Employment Law Update – Support for Parents with Premature or Sick Babies

Acas has recently published a very helpful advice and guidance note in relation to workplace support for parents with premature or sick babies.  This can be accessed at www.acas.org.uk.

Employers in such situations often find it difficult to know how best to deal with parents in a sensitive way.  The ACAS advice encourages them:Acas

  • To be compassionate and sensitive in all communications
  • To ask parents what they would like them to tell their colleagues about their situation
  • Make employees aware of their statutory entitlement to leave including, for example, shared parental leave; and
  • To be flexible in allowing time off when parents return to work for follow up appointments or treatment

We are able to provide advice to employers and parents facing what can be a difficult and anxious time.  If we can be of help, please contact Partner, Geoff Lamb at our office.

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More on Tribunal Employment Fees

Further to my previous piece regarding Tribunal Fees, the President of the Employment Tribunals has issued an Order staying all tribunal claims brought in reliance on the Supreme Court’s recent decision pending decisions of the Ministry of Justice and the Tribunal Service as to the implications of the decision.DSC_2846-2

The effect appears to be that all Applications for refunds of fees, claims that were rejected or dismissed for non-payment of fees, and new claims not brought earlier because of fees and where an extension of time is now sought, will now be stayed to await the Government’s response to the Supreme Court decision.

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Employment Tribunal Fees

The big news in Employment Law is the Supreme Court’s declaration that Employment Tribunal and Employment Appeal Tribunal fees are unlawful both in Domestic and EU Law.  Tribunal fees have been payable by Claimants since 29 July 2013.  The effect of the decision is that all fees paid since that date must be reimbursed by the Government and fees are no longer payable for any claims being started now.  The Government has accepted the decision.Tribunal

So what happens next?

  1. The Employment Tribunals will need to update the online system for new claims and Tribunal Rules will need to be revised. Claimants wishing to lodge a claim now will find the online system has been suspended.  You will therefore have to make a claim on paper and send it by post to the relevant Tribunal Office.  No fee will be payable.  I understand the online system will be up and running again soon once reference to fees has been removed.
  1. It could be that you have been put off submitting a claim within time because you could not afford the fees. It might be possible to secure an extension of time but you must act quickly by lodging your claim without delay and be able to convince a Tribunal that it was the prospect of paying fees that put you off lodging your application within the prescribed period.
  1. The decision does not necessarily mean that fees will not be reintroduced. Commentators think the Government will issue a consultation paper and bring in a different fees regime which might even involve the Employer, as well as the Employee, paying a fee.  Watch this space.
  1. How long it will take for fees paid since 2013 to be refunded remains to be seen. No doubt some Civil Servants will have the unenviable task of trawling through each claim where fees were paid and no exemption applied.  What if the Respondent ended up reimbursing the Claimant the fees in a final award?  Will the payment be made direct to the Respondent in these cases?  Again, watch this space.

For advice on this and any other Employment Law issue, please contact our Employment Partner, Geoff Lamb.

Update – The online service has now resumed.  Anyone wishing to submit a Tribunal claim can do so online or by completing a hard copy of an ET1 form and posting it to appropriate central office.

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Employment Law Titbits

Our Employment Law Partner Geoff Lamb brings a couple of recent decisions which may be of interest.DSC_2846-2

The first concerns a Company making an employee redundant after a period of disability related sickness and whether that amounts to disability discrimination. No said the Employment Appeal Tribunal on the facts of the particular case.  It had become apparent to the employer during the employee’s sickness absence that they could manage without his post.  The Employment Tribunal had found that, although there was some link between the employee’s absence and the decision to make him redundant, this was not the same as finding he was dismissed because of his sickness absence.  The EAT upheld the Tribunal’s decision.

The second case of interest poses the question whether departing employees are under any duty to disclose to the employer their intention to set up a competing business once the period of their post-termination restrictions has expired. Two fairly senior employees (Technical Manager and Technical Sales Manager respectively) planned to set up a new Company in competition with their employer’s business.  When questioned by the employer after handing him their notice they lied.  The employer sought an Injunction and damages alleging they had breached their duty to answer questions truthfully and had misused confidential information to which they were privy.

A Deputy High Court Judge in the Chancery Division ruled “I am far from satisfied that these employees were under a duty to disclose their true intentions to [the employer]. The law will step in to prevent unfair competition or to hold employees to enforceable restrictive covenants or to protect confidential information.  Equally, employees must not induce others to breach their own contracts of employment, conspire to cause their employer injury or, in most cases, solicit their colleagues for their new enterprise.  Subject to these matters, employees are otherwise free to make their own way in the world.  I should therefore be reluctant to hold that an incident of the duty of fidelity is that, when asked a straight question, a departing employee is under a contractual obligation to explain his own confidential and nascent plans to set up in lawful competition”.

This may seem harsh upon the employer but I wonder what difference it would have made if they had been open about their intentions. The employer could not stop them once the post-termination restriction period had expired.  What the case is really about is whether the employees had misused confidential information to design and sell their own machines.  The claim for damages proceeds to trial.

The issue of truthfulness might have produced a different result if the employees had been more senior, for example, Directors of the Company, who owe greater fiduciary duties to the Company.

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Do adjustments have to be made for a job candidate with Asperger’s Syndrome?

In a case recently before the Employment Appeal Tribunal a job applicant was found to have been discriminated against by being required to sit a psycho metric test.  The applicant, Ms Brookes, applied for a job with the Government Legal Services (GLS).  Along with all other candidates she had to undertake a multiple choice Situation Judgment Test.  Brookes requested adjustments to the Test on the grounds of her Asperger’s Syndrome.  (Her Psychiatrist had made previous recommendations in relation to her university course that a multiple choice format would not be appropriate for her).  She was told that an alternative test format was not available, although time allowances would be made.  She completed but failed the test.  She then claimed disability discrimination.

The Employment Tribunal concluded that the requirement that all applicants take and pass the test put a group of people, such as Ms Brookes, at a particular disadvantage compared with those who did not have Asperger’s Syndrome.  Whilst the requirement served a legitimate aim, the means of achieving that aim were not proportionate to it.  Brookes was put at a disadvantage.  Her claim of indirect discrimination and failure to make reasonable adjustments succeeded.  The decision was upheld on Appeal by the Employment Appeal Tribunal.

Put simply, whilst GLS needed to test the competency of its candidates to make effective decisions, a psycho metric test was not the only way to achieve this.  A salutary warning for prospective employers.

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HR Audit for Businesses

At North Ainley we offer to clients an HR Audit Package to include a review of existing Contracts of Employments and Policies to ensure you are complying with current legislation and your documentation is fit for purpose.

 Key areas are:-

  • Terms and conditions of Employment Contracts
  • Ensuring confidentiality
  • Protecting businesses when key employees leave
  • Working time and holiday arrangements
  • Recruitment and selection
  • Discipline and grievance
  • Redundancy processes
  • Performance management
  • Absence management
  • Putting in place relevant and effective Policies

We find many business owners and organisations keep meaning to get round to addressing these matters but rarely have the time to do so.

At North Ainley we can help you through what can often be a minefield. For a no obligation chat about your needs and the assistance we can offer, contact Geoffrey Lamb, our Employment Law Partner for further advice.

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Mental Illness

The statutory definition of “disability” must be satisfied for an employee suffering from a mental illness to be able to bring a discrimination claim. It reads “A Person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Thus the answer is that, although the illness may have a substantial effect on the person’s ability to carry out day-to-day activities, it will not satisfy the test if it is not long-term. Therefore, it is important always to have an assessment of the effect, severity, and length of the illness with the assistance of medical evidence.  In decided cases Asperger’s syndrome, ME and chronic fatigue syndrome have all been held to be capable of being mental and/or physical impairments.  The burden of proving they have a disability is on the employee Claimant.

If, as an employee or employer you have any concerns in this often complex area, please feel free to contact our Employment Specialist, Geoff Lamb for further advice.

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Sleeping at Work

A question of vital importance to employers who engage workers for night work is whether ‘sleep in time’ counts as work time, for which the worker is entitled to receive the national minimum wage, not least because, if employers get it wrong, they could face criminal sanctions.

Three cases on the point were recently heard together in the Employment Appeal Tribunal.   Notwithstanding the importance for both employers and employees, the Judge was unable to give a straight “yes” or “no” answer, rather the outcome is “it all depends”.

The Judge did however set out four factors to be considered in addressing the question. In a nutshell, each case falls to be decided upon its own particular facts whilst applying the four factors.

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Employment termination payments

The calling of a snap General Election on the 8 June 2017 has raised the question as to whether any pending employment related legislation will complete its parliamentary progress in time.

The Government has in fact announced that it will push through, before Parliament is dissolved on the 3 May that part of the Finance Bill 2017 which will remove the distinction between contractual and non-contractual payments in the treatment of termination payments as from the 6 April 2018.  In short, this will mean that all payments in lieu of notice in a termination payment will be taxed as earnings.

The new provisions, when they take effect, will require employers to split a termination payment between the amounts treated as earnings and the amounts benefiting from the £30,000.00 tax exemption, which will continue to apply.  Statutory and contractual redundancy pay (to the extent that the contractual redundancy pay does not exceed the statutory amount) will continue to benefit from the £30,000.00 exemption.

We will provide more information as and when the legislation is enacted but no longer will it be possible for the fairly common practice to be adopted by employers of rolling notice pay into a termination payment and thereby avoiding having to pay employer’s Nation Insurance.

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