The last thing any business owner wants is a lawsuit. If you’re careful it’s an avoidable business risk, unless you have outdated employee contracts and policies. Then you may be risking one of your employees taking action against your company.
Employment law is continually changing. To protect your company you need to ensure your employee contracts and policies are updated and maintained on a regular basis. At FG Solicitors we specialise in Employment Law and proactively work with our clients to ensure their documents are working for them.
If you want to find out more or get in contact please visit http://www.fgsolicitors.co.uk/hr-review/
The clock is undoubtedly ticking for employers as we edge ever closer to 25th May 2018 when the General Data Protection Regulation (“GDPR”) becomes law. Naturally, there will be those organisations that fail to comply with their obligations and make headlines if only through fines or strengthening a disgruntled employee’s ability to bring successful claims. But enough scaremongering!
The question on most employer’s lips is, what do we need to do to get ready? In broad summary there are 5 key steps:
- Data mapping
- A review of the key employment documents that touch and concern data protection
- Training staff on policies and what to do if there is a breach
- Dealing with Data Subject Access requests
- Appointing a responsible person with overall knowledge and gatekeeping responsibility.
The starting point for employers is what is now referred to as Data Mapping which put simply is to look at what data is held and processed, where it comes from and for what purpose it is processed. This will enable employers to identify their legal justification for processing it.
Historically a significant proportion of employers have not really given much thought to the justification for holding the employee data that is held in their organisation preferring to rely on a clause in their standard employment contract requiring employees to give their consent to the employer using their data in whatever way they needed to. Once the GDPR is in force placing reliance on employee consent may not only prove ineffective it may also result in an onerous administrative burden for employers.
Data mapping is a worthwhile exercise for employers of any size and will lead to those employers identifying and adopting the most appropriate GDPR compliant reasons for justifying data processing within their own organisations.
The next step for employers is to review existing documents, contracts of employment, policies and procedures in the staff handbook and staff privacy notice in particular. This is to ensure that they are all GDPR compliant. It is also important to ensure that any contracts in place with third party service providers, for example, payroll services providers are also GDPR compliant.
Employers need to ensure that their employees receive training in relation to what their obligations are such as record keeping, retention of data and reporting obligations in relation to the breach of the GDPR.
The right of employees to make data subject access requests is nothing new but it is likely under the new regime that employers will see an increase in such requests. The GDPR has removed the right for employers to charge a fee save in exceptional circumstances and has also shortened the time limit within which an employer must respond to such requests from forty days currently to save in exceptional circumstances one month.
Finally in this summary, the responsible person or Data Protection Officer (“DPO”). Not all employers are required to have one but the process of deciding whether to put one in place is an important exercise for all employers to go through. If an employer chooses to have a DPO time spent in selecting the right individual will be time well spent.
Employers are well advised to get the ball rolling, there is very little time left to define and implement an effective GDPR compliant infrastructure even if the process has already started.
The Team at FG Solicitors can help you with tailored best practice HR and legal audit solutions, beginning with evaluating your current data protection framework enabling you to confidently establish a GDPR compliance roadmap. We will work with you to identify remedial action tailored to your method of operation, thus ensuring a best fit data compliance framework. Regardless of the size of your organisation, we can tailor our GDPR support services to your specific needs.
AUDIT! REMEDIATION! IMPLEMENTATION! TRAINING!
Contact us for a no obligation informal discussion.
SUMMARY: A vexed recurring question from employers, particularly those seeking to recruit new employees is “Can I ask the candidate about any previous criminal convictions?” The natural next question is, “What can I do if a candidate says they have a clean criminal record, but I find out this is untrue?” We address these questions below:
The current general principle is that ex-offenders should be rehabilitated into society. The Rehabilitation of Offenders Act 1974 facilitates this by allowing historic convictions to become “spent” and non-disclosable to employers if an ex-offender has not reoffended for a specified period of time following their original conviction.
The length of the rehabilitation period depends on the sentence imposed and NOT the nature of the offence committed. However, if a custodial sentence of over four years has been imposed, the relevant offence will always be disclosable.
However, in certain situations, the general “spent” principle does not apply. Roles covered by this exception fall into the following five broad categories:
1. Professions (e.g. medicine, law and accountancy);
2. Those employed to uphold the law;
3. Certain regulated professions (e.g. financial services);
4. Those who work with children, vulnerable adults and health services; and
5. Those whose work could mean they could pose a risk to national security.
In these cases, all convictions including “spent” convictions must be disclosed as part of assessing an applicant’s suitability for the role. In addition, those applying for such roles would qualify for checking under the Disclosure and Baring Services (“DBS”).
ASKING ABOUT PREVIOUS CONVICTIONS
Even if the role is not covered by one of the exceptions listed above, as part of the recruitment process, the potential employer can still ask the candidate to voluntarily disclose information about their criminal record history.
However, the employer should be aware that the candidate is under no obligation to disclose “spent” convictions – if convictions are “spent,” the candidate can hold themselves out as having a “clean” criminal record.
Also, unless the role is covered by one of the exceptions listed above, there are limits as to whether the employer can request a formal DBS check. To overcome this limitation, employers had adopted a practice of requiring potential employees to make a Data Subject Access Request covering their criminal records and requiring disclosure of this, but this practice is now unlawful.
WHAT IF A CANDIDATE DISCLOSES A CURRENT CONVICTION?
If a role is not covered by one of the exceptions listed above and there is no industry specific guidance, employers should exercise their independent judgement about employing a candidate with a current conviction.
Employers should not have a blanket ban on employing offenders, but should instead perform a risk assessment relevant to the sector, position and situation considering:
- Whether the conviction is relevant to the role in question;
- The seriousness of the offence;
- The length of time since the offence occurred;
- Whether there is a pattern of offending or other relevant matters;
- Whether the applicant’s circumstances have changed since the offending; and
- The circumstances surrounding the offence and any explanation offered by the applicant.
WHAT IF A CANDIDATE FAILS TO DISCLOSE A CURRENT CONVICTION?
Unless the role in question is covered by one of the exceptions (when failure to disclose all current and “spent” convictions when asked will be a valid reason to withhold employment, or to dismiss if the applicant has taken up employment), a potential applicant cannot be prejudiced (i.e. not hired) for failing to disclose a “spent” conviction when asked about their criminal records history.
In addition, there is no obligation on a current employee to disclose a “spent” conviction when asked (even if there is a contractual requirement to disclose convictions), and dismissing an employee in these circumstance could give rise to an unfair dismissal claim (providing the employee has two years’ service).
However, if an applicant lies about the existence of a current conviction, and this comes to light in due course, an employer could attempt to terminate their employment for breach of trust and confidence.
If the lie becomes apparent shortly after the employee takes up employment, this trust and confidence argument is likely to be a safe one. However, if the employee has accrued a significant length of service, particularly if they have been employed for over two years, it may be outside the range of reasonable responses to dismiss in circumstances where the employee has demonstrated they are trustworthy and competent in the role.
CONTINUING OBLIGATION TO DISCLOSE
Asking about a person’s criminal record or obtaining a DBS Certificate has the limitation that it is only accurate at the time the disclosure is made. If the nature of the role requires continuing disclosure, it is sensible for employers to include a contractual requirement for ongoing disclosure. This will not automatically make a dismissal fair if an employee commits a criminal offence and conceals it, but it may assist an employer to demonstrate that it acted reasonably if it later finds out that an employee failed to disclose a conviction, which calls into question their suitability for continued employment.
If you would like more advice about any of the issues raised in this article, please contact a member of our team on (01604) 871143.
Last year was a year of surprising developments in the field of employment law and it has also certainly been an encouraging year for women in the arena of work and working relationships with equal pay and sexual harassment setting the momentum for legal decisions and media frenzy.
From Prime Ministers to activists to law enforcement within the civil and criminal court system, a seismic change appears to be developing in the war against sex discrimination. Laws to protect, for the most part, women, from unlawful discrimination in the workplace are not new, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 have been in place for over four decades.
This, therefore, begs the question, to what should we attribute this clear increase in the number of claims being brought against individuals, employers and even members of Parliament? Certainly the number of global high profile allegations against even the current United States President and Harvey Weinstein the movie mogul has arguably given women in the workplace the courage to come forward casting off the shackle of fear that such a stance could be career-defining for all the wrong reasons, or that the practice of sexual harassment within their particular workplace is so ingrained as to be institutional.
Closer to home, the abolition of Employment Tribunal fees has led to a 66% increase in the number of claims made in Employment Tribunals in the period of October 2017 to December 2017. No doubt some of these will be complaints linked to some form of sex discrimination.
Employers can either be directly liable for proven cases of sex discrimination or have liability imposed as a result of the actions of their employees where the employer is unable to demonstrate that they took all reasonable steps to prevent the conduct of the errant employee and there was nothing more they could have done. Given the current climate and appetite for seeking redress for unsolicited and unwanted conduct of a sexual nature, employers of any size are well advised to review their policies and procedures to ensure not only that there is an effective infrastructure in place to deal with allegations of this nature, but also that the issue of educating the workforce to have an appreciation as to the types of conduct that may be perceived by female and also male employees as undermining their dignity at work.
There should be regular periodic reviews of all relevant policies and procedures to ensure that there is sufficient knowledge of them in the workplace and that they remain effective. New employees should have dignity at work and awareness policies enshrined within onboarding and induction training to ensure that a full appreciation of the types of prohibited behaviour is gained. Employers must balance the right of an aggrieved employee to make allegations and to have the confidence that they will be effectively dealt with, against the right of the accused to also be confident that the process that follows will have the required level of investigative thoroughness to withstand objective scrutiny. In so doing a culture that promoted dignity at work will be woven into the fabric of working practices.
In terms of legal opinion on which others may place reliance it is often advisable to do away with the needle of innuendo and pick up the club of statement. In line with that adopted position, you are invited to consider the implications of the impending arrival of the General Data Protection Regulations (“GDPR”).
As the regulations have their origins in EU law, an immediate question is will they survive Brexit? The short answer is that even if the regulations do not survive intact post Brexit, the Government has confirmed that the UK will implement the GDPR when it comes into effect on 25 May 2018 because the UK will still be a member of the EU at that time.
The GDPR heralds the biggest shake up in privacy laws in 20 years and will have a seismic impact on the human resource data processing undertaken by employers and employment related entities.
There will be some fundamental changes to the current law and it is suggested that organisations need to be aware of those changes and should be actively developing a strategy for compliance ahead of the changes coming into effect in May 2018. This is especially because the cost for GDPR non-compliance has risen dramatically when compared to non-compliance with current data protection legislation, as the new fines will be based on a percentage of total annual turnover of a business in the previous financial year. It will become easier for individuals to claim compensation and group actions will be more likely.
THE KEY CHANGES…
As a minimum, the key changes for staff engagement purposes include:
Consent: No longer will it be sufficient to include in Contracts of Employment a blanket clause stating an employee is deemed to give consent to the lawful processing of their data. Instead, organisations will be obliged to demonstrate that consent has been explicitly given for each processing purpose of the data in question. Furthermore, the organisation will need to demonstrate the consent was freely given (potentially difficult in the master/servant relationship which is employment) and that the consent is “informed.” Also, the organisation will need to implement a mechanism for the withdrawal of such consent at any time.
Subject Access Requests: The information to which data subjects will be entitled under the GDPR is more extensive. The time for providing that information is reduced from 40 days to one month and there will be no longer be a right for organisations to charge a fee to provide this data.
Right to Erasure: Also known as “the right to be forgotten,” this is a new right where individuals can request that their personal data is permanently deleted in certain circumstances. This will cause organisations particular difficulties where personal files are held both centrally and locally (for example, by a line manager).
Right to Restriction: There are instances when organisations are obliged to restrict processing; this includes employee challenges to the accuracy of personal data. This could result in certain management processes being stalled.
Breach Notifications: Unless the breach is unlikely to result in a risk to the individuals concerned, organisations’ data processers will be obliged to notify the ICO of all data breaches without undue delay and, where feasible, within 72 hours of the breach.
DO WE NEED TO DO ANYTHING YET??
Organisations could be forgiven for thinking that, as the GDPR implementation date (25 May 2018) is still the best part of 12 months away, and with Brexit looming, the matter can be left for now. But compliance with this legislation will require a good deal of planning and remapping of existing processes. The immediate steps for any organisation include:
- A comprehensive audit of existing systems and processes;
- Deciding whether additional personnel should be recruited to take on specific roles and responsibilities;
- Designing systems that will assist with GDPR compliance (including breach notification compliance);
- Identifying appropriate training for staff – for example, general awareness training for staff with more specific training for those with greater compliance responsibilities (including the IT Department and HR managers); and
- Reviewing and upgrading current Contracts of Employment and policies to manage risk.
We can undertake your audit and assist you with preparation for GDPR implementation. For a non-obligation consultation, please call a member of our team on 01604 871143 or email us on firstname.lastname@example.org
1) How has employment law changed over the last 5 years?
Employment law has changed in emphasis. There appears to be a focus on clarifying and simplifying legislation, whilst at the same time striving to make it easier for contentious matters to be resolved without the need for following a full legal process through to resolution by the Courts. With the right support, employers can now create the right blend of performance optimisation and risk management to suit their organisations.
2) How many employees do businesses need to have before they have an employment law strategy?
Even employers with only one employee have employment law obligations and mistakes can be costly! The strategy should focus on legal compliance first, followed closely by achieving enough lawful flexibility to manage the business profitably and efficiently.
3) What advice would you give our readers who need to reduce their headcount over the next 6 – 12 months?
Plan properly to ensure that you do not end up keeping the employees you should be losing and losing the employees that you need to keep! A bit of effort in the planning stage, and the right guidance will ensure that your selection decisions work for your business and that your process will withstand any objective scrutiny. It is important that exiting employees, and those being retained, accept that fair processes have been adopted as this is a crucial part of managing risk.
4) What advice would you give our readers that are planning to increase head count over the next 12 – 18 months?
Firstly, evaluate and streamline your operational infrastructure to ensure that the increase in headcount adds value and does not just fill a vacancy that has arisen. Next ensure that your recruitment and selection process is capable of selecting the right candidates for the role not just in terms of competence, but also in terms of team fit. Miss-hires are costly! Lastly, spend some time getting the “on boarding” process right, after all your new recruit is not the only one who needs to make a good impression!
5) Finally, one of our readers has 35 employees. They have a member of staff who has been with them for 10 years, who has made significant career progression and is now Sales Director. However, the Managing Director has noticed a “different” person in the last 12 months and believes it would be in the best interest of the company for the Sales Director to leave. How does the Managing Director achieve this as quickly, cost effectively and amicably as possible?
As an advisor, I would be focused on establishing the reason for the change, after all for 9 of those 10 years he has been a good employee and has an invaluable historic working knowledge of the business. The reason could be linked to domestic circumstances, ill-health or becoming disillusioned with the work environment. An accurate assessment of the reason will greatly assist the decision on which “legal tools” are chosen to remove him. Commerciality and risk are the twin stools on which most removal strategies are based.
The law now permits the option of having a protected discussion with the employee to explain the Company’s position and to allow the employee to state his. If the differences are irreconcilable, a protected discussion is generally quicker than a formal process, but can be a more costly option. It is likely that a dismissal on performance grounds is likely to be contentious unless supported by significant evidence. If this option is chosen, great emphasis needs to be placed not only on the reason but also the process, which should be vetted beforehand to ensure that it is legally compliant. This is generally a longer route. Lastly, it may be less contentious and faster to restructure that part of the operation for which this employee is responsible and remove him on this ground. Again, if speed is of the essence, this option may be the most suitable. I note that the employee is a Sales Director and therefore prior to dismissing him, consideration should be given to safeguarding the business against post dismissal competition from him and protecting confidential information.
All three major political parties have now published their manifestos ahead of the snap General Election to be held on Thursday, 8 June 2017, but what do the parties have in store for employment law?
The Labour Party was the first to divulge its plans in the document “For the Many, Not the Few,” which contains numerous pledges in relation to employment rights.
The Liberal Democrats followed closely with the release of its manifesto “Change Britain’s Future,” which includes an acknowledgement that they believe the Conservative Party will win the general election, but that the Liberal Democrats are the only effective opposition, particularly on issues such as Brexit.
Finally, the Conservative Party released “Forward Together,” which Theresa May claims “contains the “greatest expansion in workers’ rights by any Conservative Government in history.”
We have covered some of the key points from each manifesto in relation to employment law below, but this is not a substitute for reading each manifesto in full, we also provide this update for information only and not with the aim of supporting any particular political party.
|The Conservatives pledge to maintain all rights given to workers by European Legislation post Brexit, for example working time, annual leave, TUPE legislation and anti-discrimination legislation to name a few.
||Labour has also included a statement that it will ensure that all rights given to workers by European Legislation post Brexit will be protected.
||Similarly, the Lib Dems have made a pledge to unilaterally guarantee the rights of existing EU nationals in the UK. They have also stated an intention to remain part of the single market and to retain the right to freedom of movement as far as possible due to the vital role that EU workers have to play in the UK economy.
|The Conservatives have vowed to retain the Human Rights Act during the Brexit process, but would consider amendments to this in due course.
||Labour intends to preserve the Human Rights Act.
||The Lib Dems will oppose any attempt to withdraw from the Human Rights Act.
Workers’ Pay & Executive Pay Packages
|The Conservatives aim to increase the National Living Wage (which applies to workers aged 25 and over and is currently set at £7.50 per hour), in line with the current target for this rate to reach 60% of the median earnings by 2020.They have also pledged to curb executive pay by making executive packages subject to annual votes by shareholders and to commission an investigation into share buyback to ensure that this is not being used to artificially hit companies’ performance targets with the aim of inflating executive pay.
||Labour pledges to increase the National Minimum Wage for all workers over the age of 18 to the same level as the National Living Wage (currently £7.50 per hour). The National Minimum Wage is expected to be £10 by 2020 for all workers over 18. Labour also proposes to increase prosecutions against employers who fail to pay the minimum wage, and to reinstate the Agricultural Wages Board to monitor wages (and employment standards) in the food manufacturing, farming and fishing industries. Labour intends to reform the pay ratios for public sector employers, and those that bid for public sector contracts, to ensure that the maximum ratio between the highest paid and lowest paid would be 20:1. Labour pledges to abolish the 1% public sector cap on pay increases. Finally, Labour intends to work to close the ethnicity pay gap by introducing equal pay audits requirements on larger employers.
||The Lib Dems intend to establish an independent review of how to set up a genuine living wage and roll this out across central Government and where possible, across other public sector bodies. They would also call for larger employers to publish data on the number of workers earning less than the living wage and the ratio between top and median pay. They intend to end the pay freeze in the NHS and the 1% pay cap on other areas of public sector pay and to update wages in line with inflation. Finally, the Lib Dems would require binding public votes by Board members on executive pay polices.
|The Conservatives pledge to continue the current review of employment status and the “gig economy” with the aim to ultimately ensure that the interests of employees working in the traditional master/servant employment relationship are properly protected. Details on how this will be achieved have not been specifically defined.
||Labour vows to widen employment protection to provide workers with the same protection currently given to employees. In addition, Labour intends to modernise the law on employment status to include creating a statutory definition for “self-employed,” “worker” and “employee” and to crack down on the potential misuse of the self-employed status. Labour intends to ban the use of Zero Hours Contracts so that every worker will receive a minimum number of guaranteed working hours. Finally, Labour intends to support young people at work by creating a target that will see the number of completed NVQ Level 3 apprenticeships double by 2022. It intends to make apprenticeships more accessible to all, and would require the provision of annual reports on completed apprenticeships to monitor access into the workforce. Labour has pledged to maintain the current apprenticeship levy, but will aim to make this more flexible.
||The Lib Dems pledge to modernise employment rights to make them “fit for the age of the gig economy.” In addition they intend to stamp out the abuse of Zero Hours Contracts and create a right for workers to request a fixed-term contract. The Lib Dems intend to consult on introducing a right to make regular hours of work contractual after a period of time.
Family Friendly Rights
|The Conservatives have suggested they would introduce a new right for workers to take between 13 and 52 weeks off work to care for a family member who requires full-time care, and to return to the same job afterwards. This is an extension of the current right to take Dependant Leave, which only allows employees to take very brief unpaid periods off from work to deal with unexpected incidents or emergencies. There is also an indication that the Party will introduce a new right to Child Bereavement Leave. No details have been provided about the length of this leave and whether it will be paid or unpaid.
||Labour intends to increase the scope of the current 30 hours of free child care to cover all 2 year olds and will consult on the possibility of extending this to 1 year olds. Labour also intends to increase the Statutory Paternity Leave period from a maximum of 2 weeks to 4 weeks, and to increase the rate of Statutory Paternity Pay (which is currently set at £140.98 per week). Labour also intends to extend the period of Statutory Maternity Pay to 12 months from the current 39 weeks. Finally, Labour intends to consult on introducing legislation on Statutory Bereavement, however the full details of the scope of this have not yet been disclosed.
||The Lib Dems intend to provide 15 hours a week of free childcare to all 2 year olds and to children of all working families from the end of paid Statutory Maternity/Paternity Leave or Shared Parental Leave, with an ultimate aim to increase this to 30 hours. They intend to make the right to make a flexible working request and to take Statutory Paternity Leave a “day one” right as opposed to the current legislation that requires an employee to have 26 weeks’ continuous employment with an employer before gaining these rights. In addition, the Lib Dems intend to make the right to take Statutory Shared Parental Leave a “day one” right and also introduce a one month “use it or lose it” period for fathers to encourage them to take this type of leave.
Worker Representation & Trade Unions
|The Conservatives aim to improve worker representation at Board level for listed Companies by either nominating a Board Director from the workforce, creating a formal Employee Advisory Council to the Board or assigning specific responsibility for employee representation to a designated Non-Executive Director.
||Labour intends to repeal the Trade Union Act 2016, which covers specified turnout requirements and balloting requirements before industrial action and to replace this with a “sectoral collective bargaining regime.” Labour will also give all employees the right to receive union representation, guarantee all unions’ access to the workplace, only award public contracts to employers that recognise a union and look at introducing electronic balloting. Finally, Labour intends to launch a public enquiry on Trade Union blacklisting.
||The Lib Dems aim to encourage employee ownership by giving staff in listed companies with more than 250 employees the right to request shares to be held in trust for the benefit of the workforce. They would also continue the drive for Boardroom diversity by pushing for at least 40% of female boards in FTSE 350 companies and improving ethnic minority Boardroom representation.
Discrimination & Diversity
|The Conservatives intend to extend the scope of the Equality Act 2010 to cover discrimination against those suffering from mental health conditions that are “episodic and fluctuating” to cover people suffering from depression, anxiety and bi-polar disorder. Currently, the legislation provides that certain conditions are “deemed disabilities” such as blindness and cancer and protection is automatically granted. In other cases, an individual would have to demonstrate that they have a physical or mental impairment that has an adverse effect on their ability to carry out day-to-day tasks and that effect is long term. The suggestion is that a Conservative Government would potentially classify depression, anxiety and bi-polar disorder as “deemed disabilities” so that people suffering from these conditions are automatically protected under the Equality Act 2010.There is also a reference to incentives being offered to employers to employ vulnerable workers such as 1 year’s relief from Employers National Insurance Contributions. Finally, the Conservatives propose an extension to the current gender pay gap reporting regime, which came into force on 6 April 2017, by requiring employers to publish more data than is currently required. This scope of this has not been clarified. There is also a suggestion that race gap reporting could be adopted.
||Labour intends to enhance the Equality Act 2010 to make it easier to challenge disability discrimination at work. It would also consult on reform to the Gender Recognition Act and the Equality Act 2010 to better protect transgender people by changing the protected characteristic of “gender assignment” to “gender identity.” Labour intends to increase pay equality by introducing an independent body to ensure that the gender pay gap reporting obligations are complied with. The manifesto also provides a proposal to audit all proposed legislation to assess its potential impact on women before it is introduced and to strengthen protection for women against unfair redundancy.
||The Lib Dems aim to extend the current protection against discrimination to cover gender identity and expression and not just gender reassignment. They would also outlaw caste discrimination. The Lib Dems intend to extend the gender pay gap reporting scheme in the private sector to include a requirement to publish information on gender, ethnicity, and LGBT statistics. They would also require name blind recruitment in the public sector and encourage this in the private sector, and will aim to improve diversity in public appointments by including a presumption that every shortlist should include at least one black/ethnic minority candidate. Finally, the Lib Dems would guarantee the freedom to wear religious or cultural dress in the workplace.
Immigration & Modern Slavery
|The Conservatives aim to increase the Immigration Skills Charge from £1,000 per annum to £2000 per annum, which is levied on employers employing migrant workers. They will also review the application of the Modern Slavery Act to strengthen measures against exploitation of vulnerable workers.
||The Labour manifesto includes a statement that Labour is committed to working with Trade Unions to ensure there are fair rules to prevent exploitation of migrant workers.
||The Lib Dems aim to strengthen companies’ responsibility for supply chains to assist in tackling modern slavery.
|The Conservative manifesto makes no reference to Employment Tribunal fees.
||Labour aims to abolish Employment Tribunal Fees (which were introduced in the summer of 2013) and extend the time period for bringing a maternity related claim from 3 months to 6 months.
||The Lib Dems also aim to abolish Employment Tribunal Fees (which were introduced in the summer of 2013).
|The Conservative manifesto contains a suggestion that a Conservative Government will introduce a right to request unpaid time off work for training. It also covers protection for Occupational Pension Schemes whereby the Pensions Regulator will be given greater power to review acquisitions that could potentially have an impact on an existing Occupational Pension Scheme, and to issue fines and Director disqualifications to those wilfully leaving a pension scheme under resourced. Criminal sanctions are also being considered.
||Labour intends to introduce 4 new Bank Holidays to increase a worker’s statutory minimum holiday entitlement to 32 days per annum.
||The Lib Dems aim to provide more protection to NHS whistleblowers – specific details are lacking.
Just a few months into 2017, emerging alternatives to traditional working patterns and arrangements are raising a number of interesting questions about the future direction of employment law.
Employers now operate in an employment arena where short-term contracts are commonplace and temporary positions and
freelance work is the norm!
While this operates to provide greater freedom and flexibility in relation to work for individuals concerns are starting to emerge that for some employers it creates opportunities for exploitation. The legislature and employment law courts now have a critical role to play in ensuring clarity and certainty for employers and individuals alike in avoiding unintended consequences.
Informal ways of engaging workers has existed for decades but arguably, technological advances make it easier for the informal workforce to tap into the mainstream working environment. This has led to concerns about employees within formal work patterns being disenfranchised and experiencing a gradual erosion of rights associated with traditional working arrangements.
Lost in the debate about the evils of non-traditional forms of working is the host of benefits that it can bring. Flexibility is the key argument of supporters. The ability of individuals to work whenever they want has a direct impact on earning income without undermining childcare, family obligations and medical priorities. Employers also benefit by being able to optimise resources while at the same time managing costs.
The legislature and the courts now need to provide confidence to business that where they engage individuals with the intention on both sides that they are genuinely self- employed, they are not subsequently declared workers or employees.
The genuinely self-employed do not have employment rights. Workers, a creation of European law enjoy fewer rights than Employees but are entitled to receive among other things the National Minimum wage and have a right to paid holiday. Workers can also claim for arrears of holiday pay, which can create very onerous financial burdens on businesses in the event that there is a large group of claimants.
There have been the much publicised decisions in the continuing saga of “employee v worker v self-employed” – this saga is set to continue in the light of the Uber decision that a group of 19 Uber drivers were entitled to receive the National Minimum Wage and holiday pay, being appealed. Whether the recently published Employment Status Review will help organisations determine the question is yet to be seen, but commentators have already pointed out that the review is dated December 2015!
Traditionally, organisations have relied on contracts and policies as a means of plotting a safe passage through the thorny landscapes mentioned above. And, whilst any employment lawyer worth their salt will advise that organisations should ensure they have in place up to date and relevant employment documentation (such as contracts and handbooks), is this enough? Very definitely “no”. Long gone (if ever it was) is the time that organisations could brandish these documents in a “get out of jail free” way.
The Department for Business, Energy and Industrial Strategy has recently issued a statement which included the following “an individual’s employment status is determined by the reality of the working relationship and not the type of contract they have signed. Individuals cannot opt out of the rights they are owed, nor can an employer decide not to afford individuals those rights. Employers cannot simply opt out of the NLW by defining their staff as self-employed.” A sign of things to come?
For assistance with minimising the risk and guidance on proposed engagement agreements you can contact a member of the team at FG Solicitors on 01604 871143.
The increase in ‘on demand’ relationships between commercial enterprises and individuals wanting to provide their labour in an informal and flexible way for short-term engagement opportunities poses a significant challenge to employment legislation and Her Majesty’s Revenue & Customs (HMRC).
The emergence of the so called “gig economy” defies traditional definitions of labour relationships as it is based largely around the use of technology platforms, often the mobile phone, to connect suppliers and users.
Prime examples are Uber, Airbnb and City Couriers.
If these engagements can be defined as employer/employee relationships, then current employment and taxation legislation will apply with the inevitable result of increased cost to commercial enterprises and increased protection for those supplying labour. The potential loss of revenue and absence of protection is leading to greater scrutiny of worker relationships in the ‘gig economy’ and in more traditional industries such as logistics, transport and construction where there is a practice of treating labour suppliers as self-employed.
Both Uber and City Couriers have been the subject of successful legal challenges to the self-employed status brought by labourers. There also appears to be an increase in the number of HMRC investigations conducted into employment status. The current uncertainty around a precise definition of “employee” that can be universally adopted by the legislature, commercial enterprises and individuals is certainly a cause for concern. Currently, UK law recognises three broad categories of labour provision; ‘employee’, ‘self-employed’ and ‘worker’ each carrying different rights and obligations
It appears that nowadays one approach that may be adopted by the courts to deal with thorny relationships that defy easy definition is to say, ‘you know it when you see it.’ Arguably such an approach inevitably leads to an increase in cases to determine employment status coming before the courts.
Historically, the courts have endorsed a list of questions, the answers to which assisted in determining whether the person or persons undertaking activities for a business was an employee, a worker or alternatively in business on their own account.
By way of example could an individual send someone else in their place to carry out the work instead of doing it themselves, were they entitled to paid holiday, did they have an opportunity to make a profit or run the risk of making a loss in carrying out the work, and could they turn the work down if it was given or were they legally obliged to do it? The answers to these questions were very often indicative of the type of relationship that existed. It appears that the weight given to these indicators by the courts has lessened if recent decisions are anything to go by. In the meantime, business owners should take heed, the label that the parties attach to the labour supply relationship will carry far less certainty without careful navigation through a number of signposts.
If you engage any labour on a self-employed basis and would like assistance in reviewing your current contractual relationships, contact a member of the team at FG Solicitors on 01604 871143.
The Christmas festivities are now hopefully a distant memory for most of us. That is of course if your Christmas party was not a fertile source of inappropriate, and in some cases, violent behaviour of members of your workforce.
It is settled law that employers can be held liable for the acts of employees carried out in the course of employment, save where an employer is able to show they took all reasonable steps to avoid the act occurring. The principle of holding employers liable for the acts of their employees is known as vicarious liability. By way of example, in the case of Hawley v Luminar Leisure Limited, the Court of Appeal upheld the decision of the High Court that a nightclub exercised sufficient control over the actions of a doorman supplied to it by a security company, to deem the nightclub his “temporary” employer for the purposes of vicarious liability. The Court of Appeal found that the nightclub had sole vicarious liability and assessed the security company’s liability at nil.
This brings us to the more recent decision of Bellman v Northern Recruitment Limited, here the High Court ruled that an employer was not vicariously liable for a violent assault by its Managing Director on an employee at an impromptu drinking session after its Christmas party. This was because it was an ‘impromptu drink,’ which was not itself a part of the work Christmas party (despite the expectation that some or all of the bill would be met by the company), and because the mere fact that the assault had followed a discussion of work matters did not mean that it was necessarily ‘in the course of employment.’ The Court said that the incident had arisen in the context of ‘entirely voluntary and personal choices’ by those present to engage in a heavy drinking session.
What does this mean?
Employers may be able to escape liability in such circumstances, but it will depend on the facts of a particular case.
What should employers do?
Employers should exercise caution as this decision does not change the law, nor does it establish that post-Christmas party drinks are outside the scope of employment for vicarious liability purposes.
The possibility of inappropriate behaviour at work related social functions is entirely foreseeable and employers should be vigilant and proactive in ensuring that acceptable standards of behaviour are defined and communicated to all employees and workers.
For more information on how to manage the risk of vicarious liability, contact a member of the Employment Team at FG Solicitors on 01604 871143.