December 2017 | Employment Law Services (ELS) LTD

Employment law issues employers are set to face in 2018

Posted on 21 December 20178 June 2023 by @deliver_els

(1) General Data Protection Regulations (GDPR)

By now, everyone should have a basic awareness on what GDPR represents and what this means going forward. The GDPR is a regulation implemented by the European Parliament, the Council of the European Union and the European Commission and is intended to unify and strengthen data protection for all individuals operating within Europe.

These regulations are set to come into force across Europe on the 25^th May 2018. It is advised that employers use the time before this date reviewing their current documentation and practices to determine how they are currently processing data and confirm whether this is in line with GDPR or not.

It is crucial that employers get this right as the consequences of non-compliance can be potentially devastating for a business, with the maximum fine being 20million or 4% of annual turnover. It has been reported that Uber would have been fined 17.5million for its recent data protection breach.

(2) Tribunal claims set to increase

Following the abolishment of tribunal fees in July 2017, there has been strong evidence produced suggesting that the number of single claims issued in the UK has increased significantly. Whilst this change in legislation was an unbelievable victory for Unison and employees throughout the UK, going forward, employers will now need to be extra cautious to avoid any risks of being served with an Employment Tribunal complaint.

(3) Employment Status

The controversary surrounding employment status and companies like Uber and Pimlico Plumbers have continuously dominated the employment law headlines in 2017.

Status will continue as a major issue in 2018. Uber have applied to hear their case heard in the Supreme Court and following the decision made in the Pimlico Plumbers case, that a plumber was in fact a worker under legislation, has been appealed and is scheduled to be heard in the Supreme Court in February.

The Government was expected to respond to the recommendations set out by Matthew Taylor in the Review of Modern Employment Practices by the end of 2017. However, it was reported at the beginning of December that this would be pushed back due to other Government priorities. Therefore, employers will have to sit tight and wait on confirmation of employment status in 2018.

(4) Sleep in shifts

The case of Esparon v Slavikovska established where there are minimum staffing level requirements that require workers to be on site, they should be paid national minimum wage.

This area of law is predicted to continue as an area of concern for care sector employers in 2018. Employers should consider whether staff are paid in lump sums for overnight shifts or whether their shift is likely to amount to “working time.”

The Government publicly warned that many care sector workers should have been paid at least the national minimum wage for the hours they were sleeping on an overnight shift. It has since been submitted that many of them will be able to claim up to 6 years back-pay.

On recognising the uncertainty around this area, the Government introduced the Social Care Compliance Scheme. This allows employers to voluntary sign up and review their sleep-in payments and reimburse any underpayments to avoid any further action.

How can Employment Law Services (ELS) help?

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662. You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.

Top 5 employment decisions of 2017

Posted on 19 December 201712 June 2023 by @deliver_els

Over the last year, employment law headlines have been dominated by case law developments on employment status, annual leave, religious dress in the workplace and shared parental leave.

In July, the UK saw one of the most significant employment law decisions of the last 50 years; tribunal fees were found as unlawful.

(1) R (on the application of UNISON) v Lord Chancellor (Supreme Court)

Regardless of what side of the employment law fence you sit on, the decision of this case is without a doubt a phenomenal victory for Unison.

Unison began their legal battle back in 2013 and were rejected twice at the High Court and once at the Court of Appeal. It was in July 2017, that the seven judges ruled unanimously that the requirement of having to pay £1,200 for a claim to be heard in the Employment Tribunal was a serious impediment to an individual’s access to justice.

Following this decision, the Government was forced to terminate Employment Tribunal fees with immediate effect.

(2) Pimlico Plumbers Ltd & another v Smith

Cases of worker status have continuously dominated the headlines in 2017. In this case the respondents argued that Mr Smith was employed on a self-employed basis. However, the defendant successfully argued that he was a worker for the purposes of employment legislation. The key factors considered in this ruling included:

Mr Smith was required to wear a uniform with the company’s logo on it;
He was contracted to work a minimum number of hours each week;
If he was going to be absent, he was not required to provide a substitute to carry out his work in place of him;
The employment agreement was made up of restrictive covenants which prohibited the defendant from working as a plumber in any Greater part of London.

Despite it being held in the Court of Appeal; that the claimant was a worker and should be entitled to employment rights, Pimlico Plumbers have appealed to the Supreme Court. This hearing has been predicted to take place early next year.

(3) Ali v Capita Customer Management Ltd

Mr Ali’s wife was suffering from post-natal depression and had been recommended by her GP to return to work to support recovery. Because of this, Mr Ali requested to take shared parental leave at the earliest opportunity. His workplace policy stated that women on maternity leave should receive full salary for 14 weeks and any time after this would be paid at statutory maternity rates for the following 25 weeks.

In this case the employer had only offered the claimant the statutory minimum pay. Which meant that once he had taken his 2 weeks’ paternity leave, anything after would result in a substantial loss in earnings. Mr Ali argued that by his employers refusing to pay him the same rates as the child mother, was a matter of sex discrimination. The respondent contended that Mr Ali could not compare his situation to his partner on maternity leave as he was not the one who had given birth.

The Employment Tribunal agreed with the claimant, arguing that he had not compared himself to the mother who had given birth. Suggesting further that after the initial two – week recovery period that is specific to a baby’s mother, a female employee on maternity leave was an appropriate comparator. It was irrelevant that Mr Ali had not given birth. Thus, the ET up-held the claimants direct sex discrimination claim.

(4) Dudley Metropolitan Borough Council v Willetts

In this case 56 employees of Dudley Metropolitan Borough Council argued that their holiday pay should include voluntary over time, as well as out-of-hours standby and call out payments.

The Employment Tribunal established in this case that for the majority of employees, voluntary overtime and allowances should have included holiday pay for the 4 weeks statutory minimum leave. This was because they were paid regularly enough to be considered as part of the normal remuneration. The EAT reiterated the Employment Tribunals decision on appeal.

The decision of this case highlights that payments for voluntary elements of work, not just overtime, should not be treated any differently. It is further observed in this case that out-of-hours standby payments and call-out allowances should have been included.

This may not always be simple, as the EAT fail to provide employers with guidance on what level of regularity or frequency is required for a payment to be classed as standard remuneration.

(5) Achbita & another v G4S Secure Solutions

In this case the European Court of Justice (ECJ) held that prohibiting a female employee of Muslim faith from wearing an Islamic headscarf at work did not amount to direct discrimination based on religion.

When providing guidance, the ECJ established that, as long as the rules were applied consistently across the board, having a rule asking staff to dress “neutrally” cannot constitute to direct discrimination.

However, they did caution that having a “neutral” dress code rule may lead to claims of direct discrimination if there is evidence that individuals of a particular religion are then disadvantaged.

How can Employment Law Services (ELS) help?

Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.

Surveillance cameras and privacy at work

Posted on 14 December 201712 June 2023 by @deliver_els

Article 8 of the Human Rights Act 1998 provides that all individuals have the right to respect for private and family life. Therefore, would video surveillance of lecture theatres violate a university professor’s right to privacy?

This issue was recently highlighted in the case of Antovic & Mirkovic v Montenegro, in which the Dean of the School of Mathematics installed video cameras into the public lecture hall at a Montenegro university, suggesting it was to “protect safety of property, people and students.” However, this surveillance also recorded lectures.

The recorded data was protected by codes that only the Dean had access to. Following this complaint, the Personal Data Protection Agency ordered the removal of this surveillance on the grounds that there was no evidence to say safety was an issue and therefore, there was no legitimate reason for data collection. The Domestic court held that Article 8 had not been violated in the first instance.

However, by four votes to three, the European Court held that Article 8 had been breached, arguing that although the university is a public sphere, private life encompasses business and professional activities.

Monitoring employees at work

There are a number of reasons that employers may wish to monitor their employees at work. The Data Protection Act does not restrict employers to do this, however, it is important that employers remember that employees are entitled to some degree of privacy in the workplace.

Should an employer wish to monitor his employees, they should be informed prior and told about any monitoring arrangements and the reason behind it.

Key aspects to monitoring employees

Employers should have written policies and procedures in the workplace regarding monitoring at work
Monitoring should be justified
Employees should be informed of what is under surveillance and how long the data will be stored for
The Data Protection Act will apply if employers monitor workers by collecting or using information
Information gathered through monitoring should be stored in a secure environment

Common methods used for monitoring

CCTV
Looking at the use of email or website visits
Listening in to phone calls
Bag searches
Email and web monitoring

CCTV surveillance

Should an employer wish to install CCTV to monitor employees, all staff should be made aware of this. For example, there should be signs on display stating where the cameras are placed. In addition, employees should be informed why they are now being monitored.

Signs should be:

Clear, readable and visible
Include contact details, such as, website address and point of contact should anyone have any questions about the scheme
Contain details of the purpose of the surveillance, E.G. to prevent theft

The Data Protection Act states that if an employer provides a specific reason for the surveillance, for example to stop theft, then the employer cannot use the footage for any other reason.

Bag searches

If an employer wishes to conduct bag searches, there must be a policy in place alerting employees that bags and purses will be subject to searches. Again, there should be a legitimate reason to justify these searches.

Covert monitoring

Covert monitoring is defined as “monitoring that is deliberately carried out in secret, without the knowledge of the staff being monitored.” This form of monitoring can be extremely difficult for an employer to justify. This form of investigation should be conducted as quickly as possible and only carried out as part of a specific investigation. When the investigation ends, so should the monitoring.

Employment Law Support for Employers

If you require employment law advice on workplace policies or any other employment issue give us a call today on 0370 218 5662.

Government scraps fit for work assessments

Posted on 11 December 20178 June 2023 by @deliver_els

The Government have confirmed that following low referral rates, the national fit for work referral scheme will be scrapped in England and Wales on 31^st March 2018 and on 31^st May in Scotland.

Fit for work is a Government funded initiative that was implemented in 2015 with the hope of providing support to individuals in work with health conditions.

The service is made up of two main elements:

(1) Advice Service

(2) Referral and Assessment Service

It is the latter that has to be abolished, employers and GPs will continue to have access to the advice service.

A study that was conducted by the GP Magazine identified that 65% of GPs had failed to refer a single patient to the fit for work service due to lack of publicity.

The abolishment of the Fit for Work scheme came after the Government released its ambitious proposals to get one million more disabled people into work over the next 10 years.

Proposals

Improving Lives: The Future of Work, Health and Disability produced a report which sets out how the Government will work alongside employers, charities, healthcare providers and local authorities to ‘break down’ employment obstacles for disabled people and those with other health issues.

“Everyone should be able to go as far as their talents can take them, but for too long disabled people and people with health conditions have been held back from getting on in work.”

“Today we’ve set out an ambitious 10-year strategy to end this injustice once and for all. By bringing employers, the welfare system and health services together we’re taking significant steps to ensure everyone can reach their potential.” Said David Gauke, Work and Pensions Secretary.

In addition, the Government have confirmed that all 40 recommendations made in the Stevenson/Farmer review of mental health will go ahead, as well as a reform of statutory sick pay and large organisations will see the introduction of a voluntary system that will allow them to report mental health and disability within their business.

Rachel Suff of the CIPD stated: “We welcome the broad acceptance the recommendations made in the Stevenson/Farmer review and the Matthew Taylor Review of good work designed to improve not only how employers recruit, but progress the careers of, people with a disability or health condition. By encouraging greater transparency and better reporting of action taken as suggested, Government can help inspire wider change in employer practice.

“Proposals such as reforming statutory sick pay to facilitate flexible working and expanding fit note certification to other healthcare professionals will need further development work and legislative change. We welcome the fact that the Government is taking the time to research and demonstrate a sound evidence base on other proposals, such as determining what incentives could motivate employers to invest in people’s health.”

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An employer’s guide to Christmas bonuses

Posted on 6 December 20177 June 2023 by @deliver_els

One question often asked by employers at this time of year is whether they are obliged to pay its employees a Christmas bonus if they have done so in earlier years.

Are employers legally obliged to pay their staff a Christmas bonus?

Each case is different – In the first instance, employers should check the documentation that forms the employment relationship, i.e., the contract of employment, employee handbook, offer letters etc.

In the event that the employment documentation states that the employee will receive a bonus at Christmas, the employer must do so accordingly. Should the employer fail to provide its employee with a Christmas bonus in this instance, he/she will be in breach of contract. For example, the employee’s contract/handbook states that on Christmas Eve they will receive an additional week’s wage, then the employee can expect to receive this on the 24^th of December each year.

What if the contract is silent?

The employer should then proceed with checking over the employee handbook and company policy. For example, there is a company policy that states employees will receive a Christmas bonus if certain targets are achieved or if the business does especially well that year.

If the handbook/policy do not form the employment relationship, then it is usually at the employer’s discretion whether staff get a bonus at Christmas time or not. Employers should approach Christmas bonuses with caution and review the exact wording to confirm they are discretionary and not contractual.

Can an employer withhold a bonus?

If the provisions of a discretionary bonus scheme are clearly set out an employer can withhold the bonus as long as he is not acting irrational on doing so.

In contrast to this, if a bonus has been agreed to under contract and is not paid, despite the criteria being achieved, an employee may then apply to the Employment Tribunal for unlawful deduction of wages. When setting out the criteria for a bonus, it is important that expectations are not discriminatory.

Get the written documents right

If an employer wishes to ensure they are not legally obliged to pay its staff a Christmas bonus every year then they must make it clear from the start that bonuses will be paid at the employer’s discretion, every situation should be considered on facts. It is therefore recommended that employers seek legal advice before embarking on any action.

How can Employment Law Services (ELS) help?