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Employment Law Newsletter - November 2017

 
 

In this issue ...

  Developments in the gig economy   Can you sack those who refuse to work overtime?  
  New sleep in pay compliance scheme   Can you make staff take holiday at Christmas?  
  Are you ready for Christmas?   General Data Protection Regulations  
  Should you allow employees to use e-cigarettes at work?  

Welcome to our last edition for 2017 - we do not produce a December newsletter. So please enjoy your seasonal festivities and we will see you in January.

 

Developments in the gig economy

Status is crucial. The status of those who do work for you is crucial. Whether they are employees, workers or self-employed contractors dictates their entitlements and your obligations. You need to answer the question before a court answers it for you. Getting it wrong will be expensive.

Uber and Deliveroo. In Uber BV and others v Aslam and others the Employment Appeal Tribunal decided that Uber drivers are not self-employed but are workers and therefore entitled to the national minimum wage, paid annual leave and whistle blowing protection. Uber's contract said otherwise but the court disregarded its terms because they didn't reflect the true nature of the relationship.

Deliveroo was different. The Central Arbitration Committee (CAC), which resolves collective worker disputes, said that Deliveroo's riders were self-employed contractors with no entitlement to the minimum wage, holiday pay or union recognition. Changes Deliveroo made to its contracts, such as allowing riders to bring in someone to cover their work and removing the requirement for branded clothing, were fatal to the claim of worker status. Importantly there was evidence that the practice reflected these changes.

What you should do

Decide what relationship you want: employee, worker or self-employed.

Identify the implications of that relationship.

Review your contracts with those you engage to do your work to check they match your aims.

Be aware that courts will look behind the words to your day-to-day practice.

Ensure that your contracts reflect the reality of your relationship. If they do not, consider changing your practice or your contracts.

And... watch this space. The Government is considering the steps it should take, in light of the Taylor Review, into the gig economy and employment status.

 

New sleep in pay compliance scheme

In our October edition we told you that HMRC is focusing on social care providers and investigating whether they are paying workers below the NMW for sleep-in shifts. Enforcement action for sleep-in shifts in the social care sector was temporarily suspended between 26th July 2017 and 1st November 2017.

The Government has now launched the new Social care Compliance Scheme that social care employers can opt into and gives them a year to identify what they owe to workers, supported by advice from HMRC. They will have three months to pay workers what they owe. The Government believes it will raise £400 million.

Will it work?

The scheme has been described by some commentators as a 'suicide note' for social care employers; the Government has offered them no help in discharging their liability. Some will not be able to afford it so will be unlikely to opt in to the scheme. Some providers may consider returning services to commissioners or face insolvency. Mencap has started paying the legal minimum wage to sleep-in staff, but says that the bill for six years of back pay is unaffordable.

 

Are you ready for Christmas?

Grabbing some Black Friday bargains and ordering the Turkey will help at home but what about work? For some of you, the run up to Christmas is your busiest time. For others the quietest.

 

Can you sack those who refuse to work overtime?

Yes says the ET in Edwards v Bramble Foods Ltd. This small employer required employees to 'work such further hours as may be reasonably necessary to fulfil [their] duties or the needs of the business'. Everyone agreed to work some Saturday mornings as Christmas approached, except Mrs Edwards, who said that she liked to spend it with her husband and boasted to her colleagues that she'd be having a lie-in while they worked. An employment tribunal said it was fair to dismiss Mrs Edwards because some overtime was required by her contract, she had no legitimate reason for refusing and, owing to the spreading discontent, not dismissing her could have been 'disastrous'.

What you should do

If you have employees whose work is seasonal or project-based ensure their contracts of employment allow you to insist on overtime when required.

Balance employees' outside commitments with your requirements.

Consider the effect on morale if some employees refuse extra hours while their colleagues are working overtime.

Try to resolve refusals informally before taking formal disciplinary action and ensure that your employee understands the consequences of their decision.

 

Can you make staff take holiday at Christmas?

The Working Time Regulations allow you to require employees to take holiday on specified dates if you give them notice of at least twice the length of leave they must take. So two weeks' notice is required if they must take one week off.

If you plan to do this then mention it in your contracts of employment and/or your holiday policy. However, be aware that requiring non-Christian employees to take time off at Christmas may be considered indirect religious discrimination as it has no religious significance to them. If this is an issue, consider requiring them to take time off on other grounds such reduced customer need or agreeing different working arrangements to enable non-Christian workers to take time off during their religious festivals.

 

General Data Protection Regulations

We are all preparing for the new approach and restrictions to processing data that the General Data Protection Regulations (GDPR) will introduce next May. The Information Commissioner's Office has toughened its stance on breaches of our current legislation, the Data Protection Act 1998. Earlier this month, a charity worker, employed by the Rochdale Connections Trust, was fined £1,845.25 when he sent names, medical records and contact details of his employer's client to his personal e-mail account.

What will the GDPR mean for you?

We have a note on the key concepts of GDPR, which you can read here

 

Should you allow employees to use e-cigarettes at work?

The law. Since 1st July 2007 the Health Act 2006 has prohibited smoking in enclosed and substantially enclosed premises in England if they are open to the public or if they are used as a place of work by more than one person. E-cigarettes fall outside the scope of the smoke-free legislation.

Conflicting guidance. The British Medical Association believes that e-cigarettes should be prohibited in the same places where smoking is prohibited. But Public Health England says that vaping is 95% safer for users than smoking and that 'there is no evidence of harm to bystanders from exposure to e-cigarette vapour and the risks to health are likely to be extremely low'.

What you should do

Recognise that e-cigarettes are a step towards stopping smoking

Consider whether people work in close proximity to others, and any discernible safety risks.

Acknowledge that in many workplaces, for example open-plan offices, e-cigarettes and their vapour will be an irritant to other workers.

Remember that some e-cigarettes can look like real cigarettes, which makes a smoking ban difficult to police, and creates an impression for visitors, customers and other employees that it is acceptable to smoke.

Decide what is appropriate for your workplace and who may be affected by the use of e-cigarettes.

Developments

The House of Commons Science and Technology Committee has launched an inquiry to look at the science behind e-cigarettes, their impact on health, their regulation and its financial implications.

And...

Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.

 
 
 

If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

www.collinsongrant.com/hr

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.