Thursday, 15 February 2018

Tribunal Can Hear Evidence about "Protected Conversation" in an Unfair Dismissal Case

The idea of "protected conversations" is to allow employers to enter into off-the-record conversations with a view to agreeing the exit of an employee.

The "protected conversation" policy was introduced under s.111A of the Employment Rights Act 2013 and was a flagship policy of the Government's employment reform.

Under the Act, details of these conversations cannot be used in subsequent tribunal proceedings. In theory this sounds like a good idea; employers will be free to discuss exit packages in a full and frank atmosphere without fear of their comment being reported to the tribunal in any subsequent proceedings and prejudicing their case.

However, in a significant ruling by the EAT in Basra v BJSS Ltd it was held that a tribunal can hear evidence about "protected conversations" in an unfair dismissal case if the date of termination is in dispute.

In this case, the claimant wrote an email to the respondent in response to a without prejudice offer letter it had sent saying "today will be the last day at BJSS". The claimant then stopped attending work, and later brought a claim for unfair dismissal.

BJSS argued that the claimant's employment had ended by mutual termination and,in the alternative, the email was a resignation.The claimant denied resigning  and said he had been dismissed by BJSS at a later date.The tribunal argued that s111A protection cannot be waived  and excluded BJSS's offer letter as protected under s111A ERA.

However,the EAT held that as the protection under s111A only applies to pre-termination negotiations," the chronological line between what is,and what is not , admissable therefore lies on the point at which the contract is terminated".The tribunal would not be in a position to say what evidence should be excluded "until that dispute is determined"..

Thus, the tribunal needs to determine the termination date before applying s111A.

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Monday, 15 January 2018

Book Review: The Law Society's 'Employment Law Handbook' 7th edition Barnett, Baker and Butler



The 7th edition of 'The Employment Law Handbook Handbook' remains an excellent starting point for any employment law practitioner or HR professional. It is acknowledged that much of its contents are influenced by ex- contributor Henry Scrope who gave us the compendious www.emplaw.co.uk a great source of free employment law before it was taken over a few years ago.

One thing which immediately offers value in buying this text is the vital addition of commentary on two of the hot topics for 2017/2018 the abolition of the fees regime and the status of 'gig economy' workers.

Looking at contents of chapters including old favourites such as 'Redundancy' you will not see protracted commentary on rare examples of extraordinary cases falling under this genre but you will see the essential legal 'building blocks' of any skeleton argument involving redundancy and the basis of sound law required to swot up on before advising a client.

The three authors, of course are experienced practitioners and with their names in the shop window are not going to produce a sub standard text. At around £70 the book is not cheap but you are paying for a reliable motor. When 'Harvey's' is too bulky and time is of the essence this book should be in my opinion the practitioner's trusty companion.

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Wednesday, 13 December 2017

Rulings Could Change Nature of UK "Gig" Economy

Crucial rulings affecting thousands of workers in the fast - growing "gig" economy  will inevitably lead to more challenges by workers in this sector who seek workers' rights such as access to reasonable adjustments and holidays.

To put things into context,no less than 60% of self-employed  people work in the transportation or storage sector  with many more in the low paid food and cleaning industries.

In two on-going cases: Aslam and Farrar and others v Uber BV, Uber London and Uber Britannia Ltd,and Pimlico Plumbers Ltd and another v Smith, the claimants are basically seeking the same ends - their entitlement to minimum wage and paid leave, arguing that, they are arms' reach third party contractors running their own businesses, they would have no such rights.

In the case of Aslam and Farrar v Uber, the ET found against the latter,whilst in Pimlico Plumbers .v Smith,the Court of Appeal ruled against the former but the Supreme Court has given Pimlico Plumbers permission to appeal with the hearing set for February,2018.Uber's application to "leap frog" an appeal to the Supreme Court has been refused and Uber has yet to exercise the right of appeal.

The two cases are similar in that they both raise the fundamental question of whether workers in both instances can be seen as self-employed or workers, with all the rights that implies.

In the Uber case, Mr Aslam and Mr Farrar were put forward by the GMB union in a test case for 40,000 individuals currently operating as Uber drivers,of which three quarters are based in London.Uber contended that the drivers were running their own businesses,keeping their own accounts and declaring their own tax.As such they were third party contractors without any employment relationship or rights.

The drivers contended that they were workers and as such entitled to rights under the National Minimum Wage Act 1998 and the Working Time Regulations 1998 which afforded them paid leave.

"The notion,"said the Tribunal,"that Uber in London is a mosaic of 30,000 small businesses linked by a common platform is to our minds ridiculous"; "Simple commonsense argues to the contrary".

In the case of Pimlico Plumbers v Smith,the Court of Appeal's  decision was that a plumber who signed an agreement with the company describing himself as self-employed was in fact a worker.

Mr Smith was required under the contract to wear Pimlico's uniform,use a van leased from Pimlico (with a GPS tracker and the company,s logo), and work a minimum number of weekly hours. He could choose when he worked and which jobs he took, was required to provide his own tools,and handled his own tax and insurance.

Mr Smith brought claims in the ET that were dependant on his being a "worker". When Mr Smith's case reached the Court of Appeal, it accepted that he was a worker, entitling him to some basic employment rights, such as the right to be paid the national minimum wage and holiday pay.

The upcoming Pimlico Plumbers ruling by the Supreme Court and the eventual outcome at Uber will undoubtedly lay the ground for more test cases by this significant sector of the UK workforce.


Aslam and Farrar and others v Uber BV,Uber London Ltd and Uber Britannia Ltd (2202550/2015)

Pimlico Plumbers and Charlie Mullins v Gary Smith (UKEAT 049512DM)

Friday, 1 December 2017

holiday pay elephantine judgment

As we know some companies engage staff by labelling them as 'self employed' when really they should be defined as 'workers'.  'Worker' status ascribes certain benefits such as the ability to pursue various claims in the employment tribunal but most importantly paid annual leave.

A new judgment has exposed companies, who engage people in what has been dubbed 'the gig economy' to thousands of pounds in compensation payments. The judgment involved Conley King who worked as a sash curtain fitter on a self-employed basis, but was later found to have workers' rights. He brought a successful claim for £27,000 of backpay holiday pay he says he should have received.

Being classified as self employed means they have no protection against unfair dismissal, no right to redundancy payments, and no right to receive the national minimum wage, paid holiday or sickness pay. Often however self employed workers have more flexibility and will be paid more to compensate for the loss of rights. The test defining a worker is complex and legal advice should be sought before a claim is commenced.

In the UK, it is estimated that one million people are employed in this type of capacity and so there are potentially serious implications for companies who have embraced 'the gig economy'.

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King V Sash Windows judgment

Tuesday, 28 November 2017

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What the employer should know about breast feeding


 Failing to conduct an appropriate risk assessment for a breastfeeding employee was deemed sex discrimination. That was the ruling of the European Court of Justice in a recent case in which a breastfeeding mother - a working nurse in a Spanish hospital's accident and emergency unit - claimed that the risk assessment did not comply with the requirements of EU Directive 92/85/EEC covering measures to improve health and safety for pregnant and breastfeeding workers. This changes the approach employers should take. Before the decision to commission a risk assessment in this situation was only deemed 'good practice' by ACAS.

Her employer's risk assessment, argued the Claimant, had concluded without a substantial  explanation that her work was "risk free", so her request for an adjustment in her working pattern on account of breastfeeding  had been declined.

The Claimant, Ms Otero Ramos, alleged that her employer was in breach of the Equal Treatment Directive.In reaching its decision, the CJEU held that if a breastfeeding  mother could show that a risk assessment was defective or not done, it gave rise to a prima facie case of discrimination.

Ms Otero had informed her employer that she was feeding her child on breast milk and that the tasks required by her work were liable to have an adverse effect on that milk and expose  her to health and safety risks,due to a complex shift rotation system, ionising radiation, health-care associated infections and stress.

The Court, referring to Article 118a(TEC), provided that "some types of activities may pose a specific risk,for pregnant workers, workers who have recently given birth or workers who are breastfeeding, of exposure to dangerous agents, processes or working conditions, such risks must be assessed and the result of such assessment communicated to female workers and/or their representatives".

In England and Wales, employers should be aware that there is already some protection in place, as the right to breastfeed in public is covered by The Equality Act 2010 which states, 'A business cannot discriminate against mothers who are breastfeeding a child of any age.' Furthermore, Rhe Workplace (Health, Safety and Welfare) Regulations 1992 requires an employer to provide somewhere for a breastfeeding employee to rest and this includes being able to lie down.

(European case: 'CJEU : Otero Ramos v Servicio Galego de Saude')

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Wednesday, 25 October 2017

Subject Access Rules Are Changing - Are You Ready in HR?


On May 28th, 2018,the data protection regime across the EU (including the UK) will change.The General Data Protection Regulation (GDPR ) will replace the provisions  of the Data Protection Act 1998.(DPA).

The GDPR preserves the rights provided under the current law and also provides new  rights and enhanced protection for individuals. Failure to comply with the provisions of the GDPR may lead  to greatly increased monetary sanctions,so it is critical that any organisations processing personal data are aware of the changes.

This data could include personnel records, metadata on computers and servers,CCTV, call logs, electronic premises access records, health and safety reports and any other electronic records or filing systems used within an organisation.

In addition, individuals will have a right to rectification of personal data being processed inaccurately by an organisation,and the right to data portability, essentially giving an individual the ability to have a copy of their personal data in a commonly used and machine-readable format.

Perhaps the most prominent and commonly used right under the DPA is subject access and this is changing under the GDPR. Organisations need to be aware of the changes and how to prepare for subject access requests under GDPR.

The GDPR defines personal data as "any information relating to a data subject" and a data subject as an identified or identifiable living person to whom personal data relates. Organisations must consider how to identify individuals, in particular employees.

Names clearly identify a person, but so may an email address, payroll number and computer login details. Careful consideration will need to be given to any other aspects of an organisation's operation that uses alternative designations (through coding or shorthand) to identify an individual.

Perhaps the biggest change to the subject access regime will be the time allowed for compliance. Less time will be available to organisations in order to comply with a subject access request. The current regime allows for 40 calendar days, but the GDPR will reduce this to one month.

Organisations may, however, be able to seek an extension of up to a maximum of two further months in cases of complex or numerous requests from an individual. If an organisation seeks an extension, it must notify the requester within one month of receiving the original request and set out why the extension is necessary. Any explanation will need to be sufficiently detailed in order to justify the request. It may be that the normal period of compliance will by default be stretched to three months in an employment context.

However, you will also need to provide additional information to employees requesting access to their data.This includes the envisaged period of storage and information about the data subject's rights.

Organisations should exercise their right,where legitimate, to ask the requester to specify the information relating to the request. This request will not pause the time for complying but it may be of particular use to those organisations that process large amounts of personal data, bringing the search into focus.

But why should the DGPR land in HR's in-tray? Surely data protection is the domain of your risk management team or the technical experts who monitor your systems?

Remember that abdicating responsibility for the GDPR would be a risky approach, as the new rules implement changes which will directly impact on the every day work of HR practitioners. Also important, the key concerns for departments handling employee data may be very different than for departments managing your organisation's interface with client and customer.

Deciding whether a request is "manifestly unfounded or excessive" will depend on individual facts and organisations should seek legal advice before making a determination.


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