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daniel

Company failure to provide employee with right to paid holiday as a worker

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In King vs The Sash Windows Workshop Ltd, the European Court of Justice (ECJ) ruled that Mr King, who had established ‘worker’ status, was entitled to pay for both unpaid holiday he had taken and holiday he did not take because he thought it would be unpaid.

Unlike holiday, which carries over during sick leave and can be lost after a certain period, the ECJ found that there was no time limit on the untaken leave that had accrued because of the company’s failure to provide King with his right to paid holiday as a worker. King could claim untaken leave for his 13 years’ engagement. The Court of Appeal will now decide whether the ECJ judgment is consistent with UK law.

https://www.peoplemanagement.co.uk/experts/legal/top-employment-law-cases-2017?utm_source=cipd&utm_medium=email&utm_term=77415096&utm_content=pm_daily_160117.1/16/2018.435442.Employment+law%3a+Top+five+employment+law+cases+of+2017&utm_campaign=7295441

Carphone Warehouse have been fined £400,000 for not securing its data

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Linked to a breach in 2015 (whereby personal details of up to 2.4 million Carphone Warehouse customers may have been accessed in a cyber-attack), Carphone Warehouse has now been fined £400,000 by the Information and Commissioner’s Office.  The company was found not to have adequately secured its data.  The size of the organisation does have bearing on the measures of security expected.

Does your company have adequate security safeguards in place?

For fuller information: https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2018/01/carphone-warehouse-fined-400-000-after-serious-failures-placed-customer-and-employee-data-at-risk/

Information and consultation of Employees (ICE) Regulations

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The Information and Consultation of Employees Regulations 2004 came into force on 6 April 2005 for undertakings with at least 150 employees.  They extended to undertakings with 100 or more employees from 6 April 2007 and from 6 April 2008 to undertakings with 50 or more employees.

The Regulations outlined that employees in organisations with over 50 staff are entitled to be consulted on changes to the organisation.  It was anticipated that companies with over 50 staff would develop ways and means to consult with employees and some did indeed form Employee Committees.

Why is this popping up now you might ask?

One of the Taylor review findings highlights that “Information and Consultation of Employees (ICE) Regulations have been underutilised”

 

**We will keep you up to date with any further developments.**

Working shifts of 6 hours or more results to atleast 20 minutes break

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Mr D Crawford v Network Rail Infrastructure Ltd: Compensatory rest breaks

In November last year the Employment Appeal Tribunal EAT concluded that compensatory rest breaks linked to working shifts of 6 hours or more should be that as under regulation 12(1) of the WTR “an uninterrupted period of at least 20 minutes which is neither a rest period nor working time and which the worker can use as he pleases”

 

Extract from judgement:

“The Claimant/Appellant was a railway signalman working on single manned boxes on eight

hour shifts.  He had no rostered breaks but was expected to take breaks when there were

naturally occurring breaks in work whilst remaining “on call”.  Although none of the individual

breaks lasted 20 minutes, in aggregate they lasted substantially more than 20 minutes.

 

He claimed that he was entitled to a 20 minute “rest break” under regulation 12 of the Working

Time Regulations 1998 or “compensatory rest” under regulation 24(a).  The Employment

Tribunal found that regulation 12 did not apply and that the arrangements were compliant with

regulation 24(a).

 

He appealed on the basis that “an equivalent period of compensatory rest” must comprise one

period lasting at least 20 minutes.  The appeal succeeded in the light of Hughes v The Corps of

Commissionaires Management Ltd [2011] EWCA Civ 1061 (in particular the judgment of

Elias LJ at paragraph 54)”.

 

For the full judgement please go to : https://assets.publishing.service.gov.uk/media/5a4b8974e5274a52034f0b5e/Mr_D_Crawford_v_Network_Rail_Infrastructure_Ltd_UKEAT_0316_16_BA.pdf

 

If requiring advice regarding compensatory rest, please contact your Advisor

Referral service of “Fit for Work” have been ceased

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If you were one of the few employers that did use the service, it has now been announced that the referrals service of Fit for Work ceased on the 15th December 2017.  Employers can continue to use the helpline and to browse the webpages giving information relating to reasonable adjustments but will now defer back to former practice involving GPs/Consultants or Occupational Health Advisors for support with medical matters.

http://fitforwork.org/

Muslim Council of Britain’s practice guide for employers and employees

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An extract from Muslims in the Workplace “A good Practice Guide for Employers and Employees”  by the Muslim Council of Britain

http://www.mcb.org.uk/wp-content/uploads/2014/06/Muslims-in-the-Workplace.pdf

4.16 Provision of prayer facilities: Employers are not required to make costly adjustments for religious observance at work. However, employees may request access to a place to pray, and if it is possible to provide a room without an unacceptable adverse impact on business or other staff, then employers may be found to be indirectly discriminating if they refuse such a request.   Furthermore, it is good practice for employers to provide a prayer room for their employees. Where only one room is available, it could be designated as a multi-faith prayer or contemplation room. Where employers are providing prayer facilities, they should be aware of the following: 

The room should be clean and quiet.  In particular, if a room is set aside for prayer, there could be a notice requesting people to remove their shoes before entering the room. The qibla (the direction in which Muslims pray) could also be pointed out on the wall or a compass can be placed in the room for use by those wishing to pray.   

Muslims will not generally pray in a room where there are photos, posters, images or statues of people or animals.  If employers provide a multi-faith prayer room, employers should consult with employees about the display and storage of religious items such as statues or posters. 

As most individuals will require a quiet place when praying, employers should consult with employees in order to reach an amicable agreement as to the timings for use of the room.  Employers will need to be aware that it is obligatory for Muslims to perform their prayers at certain times of the day as set out above. 

Where rooms are unavailable, space could be made in a corner of a room to place a prayer mat at prayer times.

Due to the obligation to perform wudhu, a ritual wash before prayer, employers may wish to make some adjustments in relation to washing facilities.  For example, toilets could include a low sink for washing feet, which in many circumstances would not entail excessive or disproportionate cost to the employer but would make it more practical for Muslim and non-Muslim employees using the toilets. Alternatively, employers can supply storage in the washroom areas for a plastic washing-up basin and a small jug that can be used by Muslim employees for washing their feet and left in a clean manner by them.  However, in many cases, normal toilet facilities will be adequate.

Example It may not be practically possible to provide a prayer room for staff in a small garage employing 12 staff, where the only space available is a small communal kitchen/restroom. However, a larger organisation with several meeting/conference rooms that are often unused may be considered unreasonable if it is not willing to organise its operations in such a way as to make a room available for prayer at specific and known times each day.

Muslim Council of Britain’s practice guide for employers and employees

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An extract from Muslims in the Workplace “A good Practice Guide for Employers and Employees”  by the Muslim Council of Britain:

http://www.mcb.org.uk/wp-content/uploads/2014/06/Muslims-in-the-Workplace.pdf

 

4.12 Muslim men and women are required to offer five daily prayers – salah – which are as follows:

  • Fajr (morning prayer) – starts at dawn and ends with sunrise
  • Zuhr (early afternoon prayer) – starts just after midday when the sun begins to decline
  • Asr (later afternoon prayer) – between mid-afternoon and sunset
  • Maghrib (evening prayer) – just after sunset
  • Isha (night prayer) – starts from the disappearance of twilight

4.13 In some denominations, the two afternoon prayers and two evening prayers can be performed together.  In other denominations, however, stipulations are more stringent on praying each individual prayer at its allocated time. This means that during winter, when the day is much shorter, two or three short prayer breaks at work may be requested by Muslim employees in quick succession. Where a prayer is preceded by an act of purification, the wudhu, each prayer break may require between 10-12 minutes. The wudhu itself will require access to a face and foot basin as it involves washing the face, arms (up to the elbows) and feet.  During prayer, Muslims face Mecca.  This direction is called qibla and in Britain, is in a south-easterly direction.  Muslims can pray more or less anywhere, provided it is clean and quiet.  The main congregational prayer, Jumu’ah, is held on Friday between 1 and 2 pm and in most denominations its observance in a mosque is mandatory. 

4.14 Time off for prayers:  Employers may expect Muslim employees to pray during their break entitlements. However, it is still necessary for employers to consider how long an individual employee requires for their prayers.  Some Muslim employees may only wish to take 5 minutes for each prayer, and simply pray alone in their room.  Others may require longer and wish to pray in congregation. Employers should be flexible where they can and consult with employees about all possible alternatives. 

Example A Muslim employee working for a large company requests time off at specific times to observe her daily prayers.  The company has the staff to cover for her if necessary during these times. The employer refuses this time off.  This would amount to indirect discrimination which cannot be objectively justified as the employer will not suffer any adverse effects from allowing her time off for prayers and will therefore be acting unlawfully.  Where an employer allows non-Muslim employees to take smoking or coffee breaks outside of their usual break entitlements but requires Muslim employees to pray during their break entitlements, this would amount to direct discrimination. 

4.15 Jumu’ah (Friday) congregational prayers:  Employees may request time off to observe their Jumu’ah prayers, which must be said in congregation and are usually held in a mosque.  As mentioned previously, the Regulations do not require employers to provide time off for prayers. However, where employees request time off that they will make up later and their request is refused, an employer will be found to be discriminating indirectly if the fulfilment of such requests cannot be shown to adversely affect their business, and directly if other employees are allowed time off for other reasons – for example for doctors’ appointments.

Example A small sandwich shop recruits two employees, one of whom is Muslim.  The shop requires both employees to be present between 1 and 2pm as it is the busiest time of the day.  The Muslim employee requests permission to attend Friday congregational prayers from 1 to 2pm.  The shop’s refusal to accommodate the Muslim employee disadvantages him in practising his religion and would be indirect discrimination.  However, the shop would be able to justify the refusal on the basis that there is a real business need that both employees be present in order to manage the work at the busiest time of the day. The action is proportionate because it is a small business, and there is no other alternative due to limited staff and resources.   If the employer was a large supermarket or there were simply more members of staff, it would be harder for the employer to show that this action was justified. 

Contracts: when to issue and why?

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Many employers are of the belief that not issuing a contract until after a probationary period has elapsed is the right way to go but what impact does this have in reality on the employment relationship?  What are your obligations?  How do you assert or enforce contractual clauses if no principle statement/contract has been issued?

Under the Employment Rights Act 1996 (plus further provisions), a statement of main terms should be provided to an individual within eight weeks of their start date.  The “principle statement” (in the form of an offer letter) needs to detail the following terms as a minimum:

  • the business’s name
  • the employee’s name, job title or a description of work and start date
  • if a previous job counts towards a period of continuous employment, the date the period started
  • how much and how often an employee will get paid
  • hours of work (and if employees will have to work Sundays, nights or overtime)
  • holiday entitlement (and if that includes public holidays)
  • where an employee will be working and whether they might have to relocate
  • if an employee works in different places, where these will be and what the employer’s address is

As well as the principal statement, a written statement/contract must also contain:

  • how long a temporary job is expected to last
  • the end date of a fixed-term contract
  • notice periods
  • collective agreements
  • pensions
  • who to go to with a grievance
  • how to complain about how a grievance is handled
  • how to complain about a disciplinary or dismissal decision
  • Failure to issue a statement of main terms/contract, although not a standalone claim, can add two weeks’ pay award to any claims won by an individual who has not received one.

Best Practice: is to issue a contract on or before the start date, ideally when the conditional offer of employment letter is sent to the employee, this gives the new employee time to read through the terms and conditions to which they will agree.  You can also then request a signed copy of the contract to be bought back for the HR File on or before their first day of work thus ensuring by the time that they start with you that they can reasonably be expected to understand core policies and procedures and contractual obligations.  

Employees without a contract or Statement of Main Terms

Having someone on site without a contract or knowledge of their keys terms and conditions of employment Including how to report absence and lateness, safeguarding protocols and codes of conduct or even how long their probationary periods are, can only ever be detrimental to the business and provide the employee with an excuse for their lack of understanding.

Long standing staff without contracts are assumed to have accepted the contract terms as provided to them but you are encouraged to have evidence that you have issued the contracts.  Should an employee raise issue with their contract and refuse to sign it, or claim that they are working under protest, it is important to contact your Advisor without delay.