Another blow to the gig economy

Another blow to the gig economy

Following the recent landmark tribunal rulings for Uber and Hermes drivers, London Taxi company Addison Lee now face a £39 million bill as their taxi workers are once again classed as workers rather than self-employed.

The Employment Appeal Tribunal upheld a previous decision classing the company’s taxi drivers as workers rather than self-employed contractors. The GMB Union have said the ruling is ‘another huge win for workers rights.’’

Following the Uber and Hermes drivers rulings, the employment tribunal have yet again decided that the company’s drivers are legally entitled to certain employment rights including national minimum wage and holiday pay. The company has around 4,000 drivers and is now being called upon to extend employment rights to all their drivers.

According to the union’s solicitors, Leigh Day the decision could cost Addison Lee up to £10,285 per driver in making good unpaid holiday pay and ensuring wages were up to national minimum wage standard over the past 2 years.

Sue Harris, GMB union's legal director, said 'Other employers should take note - GMB will not stop pursuing these exploitative companies on behalf of our members.'

Liana Wood, solicitor at Leigh Day who represented the drivers of Addison Leigh stated 'We hope that Addison Lee will accept this decision; drivers shouldn't have to continue to work very long hours, often in excess of 60 hours per week, to earn just enough to meet their basic living costs.'

The taxi firm Uber has been involved in a similar legal battle for the last few years. In 2016 2 drivers won at tribunal over paid holiday, arguing they were in effect employees. But last month at the Court of Appeal Uber argued that the previous decision had 'erred in law' by ignoring its contracts, and that the relationship between the company and its drivers is 'typical of the private hire industry' and had been used for years. The decision is awaited with interest.

Hermes lost its battle with 65 drivers in another blow for businesses who have thrived thanks to the gig economy which employs more than 5million people in the UK.  A tribunal has ruled that the 65 people who brought claims should be treated as staff with perks including sick and holiday pay and paid breaks while delivering packages for customers. 

What do these rulings mean for Employers?

Classing an individual as a ‘worker’ entitles them to certain employment rights such as the national living wage, paid holiday and sick leave which evidently means increased costs for employers. It is for each an employer to consider its own situation carefully with an eye on the law as falling foul may entitle staff to retrospective compensation.

A useful guide can to determine employment status can be found following the link below.

http://www.acas.org.uk/index.aspx?articleid=5071

If you require further assistance contact one of our experienced staff at our Employment team.

New employment rights raise another red flag for employers

New employment rights raise another red flag for employers  

Who’s who on the payroll is an ongoing challenge for employers in the run up to new payslip requirements 

New payslip requirements are set to come into force, requiring itemised calculations for variable rates of pay and hours worked. Alongside, the requirement for payslips will be extended to include workers, not just employees.  

The two amendments to the 1996 Employment Rights Act will come into force on April 6 2019.  From that date, employees and workers, including those under casual or zero hours contracts, must receive correctly detailed written, printed or electronic payslips. 

The greater transparency is designed to help employees understand their pay and see if they are being paid correctly.  Also, it is hoped that it will make it easier to identify if employers are meeting  their obligations under the National Minimum Wage and National Living Wage and that holiday entitlements are correctly applied.

But while the change itself is straightforward, new payroll procedures and alternative software may be needed to satisfy the new requirements.

Alongside, a more complex question for many companies when it comes to implementing the new requirements will be whether someone is an employee, a worker or a self-employed contractor. 

Many organisations do not recognise that even where someone is not an employee, they may still be categorised as a ‘worker’ and be entitled to certain rights such as the national living wage, paid holiday and sick leave.  An employee may also be a ‘worker’, but with extra employment rights and responsibilities. 

And the boundaries as to who is a worker and who is self-employed are increasingly difficult to pin down following high-profile cases involving Uber and other so-called gig economy companies, with individuals winning the right to be treated as a worker, rather than a self-employed contractor. 

“Many employers are not meeting legal minimum requirements because they do not understand their employment law obligations when it comes to workers.  It’s hoped that this new process will be one step towards improved awareness,” explained Employment  expert  Elissa Thursfield. 

“The distinctions between an employee, a worker and a self-employed contractor may not be clear cut for some organisations, so it’s important to keep abreast of what’s going on in employment law and what legislative changes are coming up.  That way you can keep ahead of the deadlines and make sure you’re facing up to issues that may otherwise pose difficulties later.” 

What needs to be included in the written statement of wages ·       the amount of gross wages or salary ·       for any part that varies according to time worked, the total number of hours worked and the rate of pay, either as a single aggregate figure or separately for each type of work or rate of pay ·       the amounts of any deductions and what they relate to  ·       the net amount of wages or salary payable ·       if paid in parts, the amount and payment method for each part

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018

Working temperatures – when is it too hot to work?

Working temperatures – when is it too hot to work?

The summer of 2018 is already being compared with the long, hot scorcher of 1976. Records have been broken across the UK, the words ‘hose-pipe ban’ are being whispered, and we’re all suffering from sleep deprivation due to night-time temperatures that are in the high teens. It’s hot, it’s sticky, and, unless you’re at the beach, it sucks the energy right out of you. The question is, when does it get too hot to work? Are employers legally required to keep your workplace within a certain range, and can you knock off work early if it gets too hot?

The simple answer is no. There isn’t actually any legal requirement for employers to let you go home when it gets hot. The only guidance you’ll find on the standard Gov.UK page on workplace temperatures is that all indoor workplaces must be ‘reasonable’. There is no law stating what the minimum or maximum working temperatures are, so it’s really down to the discretion of the employer. The guidance numbers range from a minimum of 16°C, or 13°C if employees are engaged in physical work. But they’re exactly that – just guidance numbers. They’re not enforceable by law.

More detailed guidance comes from the Health and Safety Executive, who state that employers have a duty of care towards their employees and should ensure that:

·         Temperatures are kept at a comfortable level and that extremes of temperature should be avoided. This is also known as ‘thermal comfort’.

·         Clean, fresh air should be provided at all times.

The Six Factors

According to the HSE, there are six factors that can be directly related to thermal comfort. Air temperature alone is not an accurate or valid indicator of thermal comfort or, conversely, thermal stress. You need to take into account both environmental and personal factors:

Environmental factors:

·         Air temperature

·         Radiant temperature – any heat radiating from warm objects

·         Air velocity – the speed at which air moves across an employee (for example, still or stagnant air that is artificially heated).

·         Humidity – humidity levels can be said to be high when they are greater than 80%

Personal factors:

·         Clothing Insulation – particularly relevant if you are required to wear PPE during your work

·         Metabolic heat – the amount of heat given off during physical activity.

It can be very difficult to legislate on any of these, particularly personal factors. PPE is often a legal requirement, and metabolic heat will depend on the individual.

However, if environmental factors are giving cause for concern then you may be able to challenge your employer through either your union representative, or via legal representation. Remember, though, that there is no set limit in law so any legal challenges may be difficult. It’s probably better to think about mediation rather than litigation.

Take a different approach

Rather than tackling the problem from a temperature point of view, it may be worth looking at it from a different angle – your employer’s duty of care to ensure a safe and comfortable working environment. If you feel that your wellbeing is being put at risk due to your working conditions, then you can challenge your employer and ask them to address the situation. This is particularly true if you have underlying health conditions such as asthma that may be exasperated by extremes of heat, humidity, or poor quality air.

It is highly unlikely that you will get an instant response, but by pointing out to your employer that conditions are bad, you may be able to effect changes that will improve the situation later on. If they are unwilling to enter into any kind of dialogue, then you may need to ask a mediator to step in to get both sides talking again. Talk to a legal expert, professional mediator, or your union representative.

It looks like we’re going to have a very long, hot summer, and if the temperature keeps breaking records then employers are going to have to look at the conditions their workers are operating in, both inside and outdoors.

Employment Law Updates

Employment law updates

 

2017 was a busy year in the world of Employment Law. Among the legal headlines were the removal of employment fees and the beginning of what was to become a national consultation on the pay gap between men and women.

However, the changes aren’t over for employers and HR professionals: with March 29^th 2019 signalling the UK’s separation from the EU, 2018 looks set to be a year of significant change, particularly where Employment Law is concerned. Let’s take a look at the main events you might want to put in your calendar.

April

Marking the end of the old financial year and the start of the new, it seems appropriate that the topic of tax will take the spotlight this month. April will see the government making changes to the way termination payments are taxed, including safeguarding the first £30,000 against income tax and National Insurance contributions. This will also be the month in which the first reports detailing the pay gap between the sexes must be submitted.

April also heralds the withdrawal of Employment Allowance for a year from any employers who are found to have employed illegal workers.

In addition, the Fit for Work assessment service will be scrapped at the end of March, as well as overhauling its current fit note scheme – exact details as to who, other than Doctors, will hold certification powers in the future is still unclear.

May

The big one for May will be the government rolling out the EU-approved General Data Protection Regulation laws. Among the many new protocols will be the right for individuals to be informed if their data has been compromised and the right for them to have their information deleted from search engines.

June

This is the month in which the EU’s Trade Secrets Directive comes into play, giving greater protection to Intellectual Property Rights. For businesses and individuals, this will mean greater recourse in the event that trade secrets are misappropriated, especially by a member of staff.

Other Key Events in 2018

While it’s hard to see beyond the first months of 2018, there are further changes to Employment Law expected, although their absolute dates remain yet to be confirmed. However, if you’re an employer or an HR professional, these are the upcoming key events to keep an eye out for:

Grandparental Leave

A hot topic since Parental Leave was introduced in 2015, Grandparental Leave will see parents able to assign part of their maternity or family leave to grandparents, allowing them to return to work more quickly. In addition, the move is hoped to encourage grandparents to remain in work, rather than having to leave their jobs in order to help their children with childcare.

Payment for Sleep-In Shifts

Towards the end of 2018, the clock will be ticking fast for employers who have not yet chased up their obligations to the Social Care Compliance Scheme. Launched in 2017, the scheme gave employers until 2019 to identify and pay what they owe to workers who may have been paid less than the minimum wage for sleep-in shifts. Once the deadline has expired, employers will have three months in which to make the outstanding payments, or face legal action.

Brexit

Although this doesn’t come into effect until the third month of 2019, employers will be watching the continued negotiations regarding Britain’s withdrawal from the European Union. While the Settled Status agreement seems to have gained some ground, the main issue for employers is likely to be how the legislation for immigrant workers will change.

The anticipated date for review of the rules will be in 2021, which gives businesses three years in which to begin recruiting and try and stay ahead of the constantly-shifting Brexit sands.

2018 looks to be an important year for those who have any dealing with Employment Law. While the short-term changes are well worth investigating, the long-term plans are the ones that are set to have the greatest effects.

Dealing with employee theft

Dealing with employee theft

 

According to a poll commissioned by office-furniture supplier Kit Out My Office, more than two-thirds of UK office workers have admitted to stealing from their employers and colleagues at some time during their careers. With the cost of stolen items averaging at £12.50 and an estimated 15million workers having confessed to employee theft, the cost to UK employers adds up to a whopping £190million each year. For employers, dealing with employee theft can be a difficult process. If you suspect that one of your workers is stealing from your business, what should you do?

Suspicion vs Facts

Theft of any sort is a serious accusation to make. If, as an employer, you suspect an employee of theft then obtaining evidence is a crucial part of the procedure. Evidence may prove your suspicions to be wrong or they may prove them to be right. However, making an accusation of employee theft without substantial proof can leave you open for litigation. Suspicion is one thing. Solid facts are another.

Conducting an Investigation

Many employers are unaware of the fact that they have a legal right to launch an investigation should they suspect an employee of stealing. The investigation must be seen to be fair and based on evidence alone. Should the case reach an Employment Tribunal or result in the employee’s dismissal, the presiding judge will need to see a demonstration of fairness and impartiality.

The first step is to appoint an investigator. This can be someone within the office or, if it is appropriate, an external party. You may find that your company has specific policies on how to tackle issues of this sort. However, if not, the chosen investigator should be briefed on certain aspects of the inquiry, including:

• A timeframe in which to conduct the research

• Guidelines on their responsibility as an investigator

• How their evidence will be presented

• Minimising the investigation’s impact on employees’ morale

• Minimising the investigation’s impact on the day-to-day running of the business.

It is worth remembering that, ultimately, the employer bears full responsibility for the manner, fairness and impartiality of the investigation. CCTV can be an important tool in uncovering the truth of the matter, as can computer records. The chosen investigator should be given access to both.

Following Up the Results of the Investigation

In the event that the evidence proves the employer’s suspicions to be groundless, then the situation should be dismissed. If the employee has become aware that they are or have been investigated, the best procedure is complete transparency. If appropriate, you might need to present them with the evidence that presented the grounds for suspicion.

If the investigation provides firm evidence of employee theft, you will then need to decide what to do next. Most companies have protocols and procedures to follow. As a rule of thumb, the next step is to report the findings and present the proof to the company’s legal advisor. Smaller companies, who may not have representatives of this sort, are advised to seek the services of an Employment Law advisory services solicitor. Either option will provide you with the information you need to begin disciplinary proceedings.

Interviewing the Accused

Reporting employment theft to the police is at the employer’s discretion. This can result in criminal proceedings and either a financial fine or, in some cases, a prison sentence. However, most cases of employee theft are dealt with internally, either resulting in disciplinary action or dismissal.

Prior to any action being taken, it is strongly advised that the accused is interviewed. This gives them the opportunity to give their side of the story and is part of the process of fairness and impartiality. The interview should be conducted in a calm and reasonable manner and evidence supporting the accusations should be presented. Should the theft be proven, then the employer should once again consult a legal advisor.

While it might seem a long road to take, riddled with procedure, ensuring that your investigations follow the appropriate guidelines, protocols and advice are as much a protective measure for the employer, as they are the path to bringing a thief to justice.

When mini breaks just don't cut it

When mini breaks just don’t cut it 

 

Tribunal says twenty-minute rest periods for workers should be given in one run, not as a series of mini-breaks 

 

The mini break may have made the perfect date for Bridget Jones, but when it comes to employee rights, companies need to make sure they do everything to enable workers to take a full, uninterrupted 20-minute rest break.

The warning comes after Network Rail was found to have failed to take the necessary steps to facilitate full 20-minute rest breaks, despite the employee being in a role that has special provision for alternative arrangements. 

 

The case was brought by a railway signalman who was responsible for running single-manned signal boxes on eight hour shifts.  Due to train timetables, he could not take an uninterrupted break and had to be on-call when he did take a break.  As a result, he argued that he had been denied his legal entitlement under the Working Time Regulations 1998 (WTR).

 

All workers are entitled to an uninterrupted 20-minute rest break away from their usual working location after six hours of working under the WTR.  It must be known to be a rest break before it starts, so if someone has had an unexpected 20 minute gap in their day, this can’t be treated as the rest break retrospectively. 

 

If a worker is on call during a break, then it will not count as a rest break, but Regulation 24 of the WTR says that some workers will be excluded from these provisions as it may not be feasible to schedule the rest break in the usual way, but they must be allowed an equivalent period of compensatory rest.  This applies to railway workers and others such as paramedics, or lone workers such as those in a security role. 

 

Although Network Rail provided a relief signaller in some regions, they did not do so in Mr Crawford’s region and instead told him that he could take shorter breaks during his shifts “between periods of operational demand” and that these shorter breaks would add up to more than 20 minutes. 

 

At the first hearing the Employment Tribunal held that Network Rail had acted correctly and that when added together the short breaks were compliant with the requirements of compensatory rest.  But Mr Crawford appealed, and the Employment Appeal Tribunal (EAT) ruled against Network Rail.  The EAT said that if it were possible to provide workers with a full uninterrupted 20-minute break, then that should be what happens.  As Network Rail were providing the relief signalman in other regions, they must have been able to take steps to provide the same option in Mr Crawford’s region.

 

 

Said Elissa Thursfield, employment expert with Gamlins Law : “Minimum rest periods are there for the protection of health and safety and this ruling demonstrates, once again, that tribunals will not allow employers to duck out of their responsibility.  

 

“As with all terms of employment, the starting point should be a clear policy that everyone knows and understands, especially where workers are involved in environments in which pre-scheduled breaks are hard to operate, or they are working alone.  It’s important to re-evaluate regularly and see if problems are arising, and take steps to ensure that breaks are being taken.  You also need to be proactive about it, as arguing that a worker never asked for a break is not going to let you off the hook.”

 

She added: “If you have a situation where it is difficult to give workers an uninterrupted break, away from their work station, then it’s worth reviewing the position with some specialist guidance, as the alternative may be an expensive tribunal claim.”

 

Crawford v Network Rail Infrastructure Limited

 

Amazon Delivery Driver sacked for being robbed

A delivery driver who worked for an approved Amazon delivery provider, Fast Despatch Transport Ltd, has lost his job having been the victim of a robbery which saw the robber drive off in his delivery van containing more than 60 Amazon parcels.

The amount of parcels out for delivery post-Boxing Day sales may have been the premeditated target by the assailant, when he forced the delivery driver, Martyn Gilham, to the ground as he delivered the parcels to the website's customers in Coventry, West Midlands on 28 December.

But if going through the ordeal of a robbery wasn’t enough, following the incident Martyn received a text from his boss stating that they did not want to use his services anymore and, in essence, he was fired, there and then.

Initially his employer ludicrously stated that his wages would be deducted to the amount of damage that occurred to the van and for the value of the parcels inside! A spokesperson for Fast Despatch Transport Ltd has since come out and said that “that the driver will not be charged the cost of the stolen parcels” – sanity restored.

However, as per company policy, and as is “clearly explained to drivers when they start work”, “when drivers leave Fast Despatch Transport they are paid all money owed to them after a short time period which allows us to calculate outstanding amounts due, such as repair of any damage to the vehicle”.

The employer may need a sharp reminder that the delivery driver was the victim of the robbery, not the perpetrator. Any damage caused to the vehicle was caused following and as a result of its illegal possession by the robber. Victim surcharge and costs in relation to the van is surely a matter for the criminal proceedings that will inevitably go ahead when/if the assailant is caught.

One would assume that it is not the responsibility of the driver, who lost possession of the van once the robbery took place, to subsidise the actions of another which were totally out of his control whilst he was lay (potentially for dead) on the pavement.

I guess we’ll have to hold our breath and hope common sense takes over on this one…

Businesses face bigger penalties on data

Businesses face bigger penalties on data leaks 

Businesses are on final countdown to the introduction of the General Data Protection Regulation in May 2018, bringing with it tighter rules and greater penalties for data processing, and the outcome of a landmark High Court case has made the preparation even more pressing.

The case involved an online leak of payroll data by Andrew Skelton, a disgruntled ex-employee of supermarket chain Morrisons.  Skelton received an eight year conviction for offences under the Computer Misuse Act 1990 and the Data Protection Act 1998 (DPA).  However, over 5,000 current and ex-employees later joined together to bring a claim against the company itself, with the court finding Morrisons liable for the actions of its former member of staff. 

 

The data included salary and bank details of some 100,000 staff and the ruling, which is the first data leak class action in the UK, allows those affected to claim compensation for the "upset and distress" caused.

Although Morrisons has said it will appeal, experts are predicting that the judgement of vicarious liability will make General Data Protection Regulation (GDPR) compliance even more pressing for both employers and suppliers of contract labour where data processing is involved.  

 “This judgement is of huge importance, because Morrisons was held liable for the criminal misuse of third party data by an employee.  The impact extends beyond the claims for compensation from employees, it’s also the impact on reputation and the financial and physical resources involved in dealing with the data breach.  Reportedly, Morrisons spent more than £2m in responding to the misuse,” explained Elissa Thursfield of Gamlins Law (Rhyl).  “Data breach is a growing worry for a business, whether relating to employees or customers, and it is set to be even higher on the agenda in the new environment of GDPR post-May 2018.” 

Bringing in a tough new era in EU-wide data protection law, the GDPR will replace the UK’s 1998 Data Protection Act, with new powers for data regulators and much stricter operating boundaries for businesses that process personally identifiable information about individuals.

The aim is to harmonise data protection across all EU member states by making it simpler for everyone, including non-European companies, to comply, but it brings greater responsibilities for data processors and big penalties of up to 4% of worldwide turnover for non-compliance.

The biggest change is that the Directive applies to any business processing personally identifiable information about EU citizens.  This means that any UK business that is trading with EU citizens before or after Brexit will be affected, as will anyone who transfers personal data from the EU to the UK for processing or storage. 

“The Government has said that GDPR compliance will be the minimum standard in UK law post-Brexit, to enable UK companies to do business across Europe,” added Elissa.  “And anyone who hasn’t already started on the journey towards GDPR needs to do so as a matter of urgency, as every business and organisation is affected, however small, and must be able to demonstrate they are complying, not just dealing with problems after they occur.  While it’s likely that most will need some specialist expertise on the legal technicalities  and IT processes, as a starting point there is some excellent preparatory guidance on the Information Commissioner’s website.” 

GDPR provides stronger protection for individuals in terms of consent.  In place of the previous ‘opt out’ approach, organisations will have to secure positive consent from individuals for their data to be collected.   The consent can be withdrawn at any time, as individuals have ‘the right to be forgotten’ and can also transfer their data elsewhere if they choose.  Where data is to be processed for a purpose beyond that for which it was originally collected, there will need to be fresh consent.  There are strict rules around data relating to children under 16 and requirements for parental consent.  

The organisation will also have to provide more information about how data will be used and how long it will be kept for, as data must not be held for any longer than necessary.  If data will be stored outside the EEA, details must be provided, including what safeguards will be in place. 

There is a distinction between controllers and processors of data.  The controller determines the process and means of processing personal data, where a processor acts on behalf of the controller.  However, each has obligations in the event of a breach or lack of compliance.  For an organisation that sub contracts its processing, there is a high duty of care imposed in selecting their data processing provider with procurement processes to be followed and regular ongoing reviews once appointed. 

Under GDPR there will be a statutory obligation to notify the regulator – the ICO in the UK – of any breach, if an individual’s personally identifiable information is at risk as a result.  Fines can range up to a maximum of €20m, or 4% of total worldwide turnover for businesses, for serious contraventions. 

 

Various Claimants v Wm Morrisons Supermarket PLC [2017] EWHC3113 (QB)

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Is this the end of forgetting your fob for work?

Is this the end of forgetting your fob for work?

 

A Wisconsin-based tech company, Three Square Market (TSM), has recently become one of the first in the world to microchip its staff. The idea behind the scheme is to remove the need for company security and identity cards. But is this a cost saving exercise that has gone too far?

 

All of the staff who have had the microchip inserted between their thumb and forefinger have agreed to such level of intrusiveness, with 50 out of 80 members of staff who work for TSM saying yes. The microchips allow employees to check into work, log onto computers, open secure doors and buy company food and drink.

 

The only saving grace is that the chips do not have GPS capabilities and therefore the company cannot monitor the locations of their employees. But surely this is a legal minefield, and for what, convenience purposes? – what happens if the employee withdraws consent? The employee leaves the company? If the chip is implanted negligently? Causes infection? Alternatively this could be the kind of treatment millennials can expect in the 21^st century workplace. What is wrong with the normal facial/eye/fingerprint recognition system some companies have (only just) become use to.  

 

However, there is always fear when new technology comes to fruition and microchipping is no different. But rather than scaremongering, do we have a responsibility, as an employer, to be as efficient as possible? We should balance these technological openings while mitigating their risks. If Regulators make sure the software the chips are loaded up with have strong privacy protections that can be controlled by the employees being able to log into their microchip and control whether the data it holds is public or private, then this could even be a new monitored and regulated industry, creating new jobs in this field. Nowadays everybody carries a phone around in their pocket 24/7 which tracks more data then we are aware of, so is this just employers jumping on the bandwagon?

 

Although I can’t see it taking off, it is definitely something to look out for employers considering in the near future on our side of the pond.