When a woman is undergoing IVF treatment, a protected period starts when fertilised ova are implanted (when she is regarded as being pregnant). When an implantation fails and the pregnancy ends, the protected period ends after a further two weeks have elapsed in accordance with section 18(6) of the EqA 2010. If an employer treats an employee unfavourably during this period she can claim pregnancy and maternity discrimination.
Tesco employees have launched a group claim asserting that female shop floor workers earn up to £3 an hour less than male warehouse staff. If successful, this could lead to up to 200,000 of Tesco’s employees receiving back pay totalling £20,000 per person, according to Tesco’s law firm representative.
The government has put back long-awaited changes to the UK labour market. This is in response to The Taylor Review on modern work practices and ‘reform’ the rights offered to flexible workers in the gig economy and beyond. The BEIS has decided it will consult with businesses on the impact of plans to enforce employment rights, change rules concerning agency workers, increase transparency in the labour market and consider employment status before taking any action to change workers’ rights.
Made on the 7th February 2018 and laid before parliament yesterday, the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 will come in to effect on 6th April 2019.
The amendment means that where different pay rates apply i.e. different rates for differing activities, wage slips are to detail the number of hours work being paid for at each rate.
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.
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?
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.**
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
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  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
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:
- State in the contract that the contractor is registered as an independent service provider and include the local business registration number where applicable.
- Make explicit in the contract that the contractor will comply with all local laws and taxation requirements.
- Do not include the contractor in employee compensation, bonus, or benefit plans.
- Ensure that any badge, business card, or email address that you provide to a contractor clearly states that he or she is a contractor.
- Be careful with terminology. Use terms such as “services” rather than “work”, “liaison” instead of “supervisor”, and “defect in performance” instead of “discipline”.
- 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.
- 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.
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.