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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

Self-employed contractor?

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Mondaq who provide regulatory information to over 70 countries have recently published a helpful article to clarify considerations when categorising “self-employed contractors” and how to best position yourselves as organisations to avoid “misclassification”.  This comes as a result of the European Court of Justice ruling on the 27th November 2017, that misclassified self-employed contractors who are really workers or employees could claim back holiday pay all the way back to 1996, the year of the introduction of the European Union’s Working Time Directive. Previously, liability was limited to one or two years’ back pay in most cases that came before employment tribunals.

The article goes on:

“In all EU countries, workers and employees have the right to at least 4 weeks’ paid annual leave—in the United Kingdom, the Working Time Regulations are more generous, providing 5.6 weeks’ leave. By contrast self-employed contractors do not enjoy the right to paid annual leave or other benefits that depend on “worker” or “employee” status.

As recent cases in the “gig economy” have demonstrated, this can be a big issue when a contractor successfully challenges his or her status and is found to be a worker or employee. There can then be a back bill for the employer for the benefits that were not provided. In the past, these tended to be limited to the last two years—but this important judgment effectively removes that limit, so claims can go back to the commencement of the right.

The case—King v The Sash Windows Workshop Ltd—involved a window cleaner who now has £27,000 to compensate him for paid annual leave to which he would have been entitled had he been classified as a worker or employee.

The takeaway for those that use contractors is to look at their arrangements and assess the risk of misclassification. The factors courts consider include (1) whether the individual has his or her own business, which he or she manages and in which he or she invests; (2) whether the individual is paid a wage or by results; (3) the extent to which the individual is integrated into the business; (4) whether the individual is working on defined specific tasks; and (5) the extent of control exercised over what they do.

Preparing a good independent contractor contract will help, but it will not avoid a misclassification finding when used for someone who is in reality working as an employee/worker. As the saying goes—”if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck”. However, when most of the above factors support contractor status, there are some sensible practical steps organisations can take to minimise risks when drafting their contractor contracts:

  1. State in the contract that the contractor is registered as an independent service provider and include the local business registration number where applicable.
  2. Make explicit in the contract that the contractor will comply with all local laws and taxation requirements.
  3. Do not include the contractor in employee compensation, bonus, or benefit plans.
  4. Ensure that any badge, business card, or email address that you provide to a contractor clearly states that he or she is a contractor.
  5. Be careful with terminology. Use terms such as “services” rather than “work”, “liaison” instead of “supervisor”, and “defect in performance” instead of “discipline”.
  6. Include indemnities such as where a contractor agrees to indemnify the company or pay a certain amount if the contractor ever claims to be an employee. The legality of such clauses is a grey area, but it may serve to deter legal actions regardless.
  7. It can be a good idea to require the individual to set up his or her own company and contract with that company. This generally reduces the risk of misclassification”.

Please contact your Elcons Advisor to discuss matters on a case by case basis.

 

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/

Brexit impact on UK employment Law: Working Time Directive

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Despite Mrs May’s speech on the 17th January this year setting out the priorities for the UK moving through Brexit…

  1. Protect workers’ rights

“And a fairer Britain is a country that protects and enhances the rights people have at work. That is why, as we translate the body of European law into our domestic regulations, we will ensure that workers rights are fully protected and maintained.

Indeed, under my leadership, not only will the government protect the rights of workers set out in European legislation, we will build on them. Because under this government, we will make sure legal protection for workers keeps pace with the changing labour market – and that the voices of workers are heard by the boards of publicly-listed companies for the first time”.

…there have been recent rumblings that government will look to erode employee rights following Brexit, potentially bringing an end to the EU Working Time Directive.

Should anything of substance emerge, be sure that we will communicate this to all clients and advise accordingly.

To access the full speech go to: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech

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.