Friday, 5 July 2019

ECJ holds that employers must record daily working time

In the case of FederaciĆ³n de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, ECJ 14.5.19 (C-55/18).The ECJ considered the extent of employer's record-keeping obligations in relation to the provisions of the EU Working Time Directive on maximum weekly working time and daily and weekly rest.

Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the EU Charter’) provides: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’ These rights are given effect by the EU Working Time Directive (No.2003/88), which requires Member States to take the necessary measures to ensure (among other things) that workers are entitled to a minimum daily rest period of 11 consecutive hours (Article 3); a minimum uninterrupted weekly rest period of 24 hours (Article 5); and a limit on average weekly working time of 48 hours (Article 6).

The ECJ concluded that, in order to ensure the effectiveness of the rights provided for by the Directive and enshrined in Article 31(2) of the EU Charter, Member States must require employers to set up an ‘objective, reliable and accessible system’ enabling the duration of time worked each day by each worker to be measured.

Wednesday, 26 June 2019

Attempt to enforce Re-engagement remedy with an injunction fails

It is a well trodden path that employment tribunals may order an unfairly dismissed employee to be re-engaged. It has also been accepted that the employer's failure to comply results in (not a particularly hefty) additional compensatory award.

The attempt by one clever lawyer to enforce that re-engagement order via an injunction has flopped in The Court of Appeal see Mackenzie v The University of Cambridge.

Lord Justice Underhill swiping the appeal 'over the boundary' commented (para 33):

The obligation is one that the statute does not intend should be specifically enforceable (s117 ERA1996) : the only remedy for non-compliance is the additional award. If that means that it is a rather unusual form of "order", so be it.

Friday, 15 June 2018

Supreme Court Rules on "Self-Employed" Plumber

The long - awaited Supreme Court ruling in the landmark Pimlico Plumbers case has upheld previous decisions that an ostensibly "self - employed" plumber was in fact properly classified as a "worker" with valuable employment rights under UK law (including discrimination protection and holiday pay).The ruling is important because of its the likely impact on a large number of individuals operating on a self-employed basis, including those operating in the "gig" economy. At the heart of the case (Pimlico Plumbers Ltd and another v Smith [2018]UKSC 29) was the employment status of Gary Smith, a plumber who worked on a self employed basis with Pimlico for approximately six years over 2005 - 2011. Both the Employment Appeal Tribunal and the Court of Appeal supported Mr Smith's position that he was a "worker" with limited, but often valuable, employment rights , including holiday pay. Pimlico Plumbers took the case to appeal in the Supreme Court.The comany has lost that appeal, with the Supreme Court supporting previous rulings that key aspects of Smith's working conditions meant that he cannot be classed as an independent self - employed contractor for employment law purposes. In the view of the Supreme Court, the fact that Pimlico exercised tight administrative control over Smith, imposed conditions around how much it paid him and on his clothing and appearance for work, and restricted his ability to carry out similar work for competitors if he moved on from the company, all supported the conclusion that he was a "worker" and not genuinely self-employed. The Supreme Court also noted that a main feature of his relationship with the company was that he would do the work personally, rather than pass it on to a substitute contractor, even though he did have the option to pass work to another Pimlico operative.

Tuesday, 22 May 2018

Royal Surrey County NHS Foundation Trust v Drzymala

A doctor was employed on a series of fixed-term contracts.Her last contract was not renewed because her employer decided to make a permanent appointment to the role she had been performing. She interviewed for the position but was unsuccessful after a competitive recruitment process. Her employer mentioned an alternative role in a lower ranking post but did not discuss it with her. The doctor was given three months' notice in writing of the end of her fixed term contract, without mention of a right of appeal or the possibility of alternative employment. She raised a grievance and requested an appeal against the termination of her employment. Her employer acknowledged that it should have offered a right of appeal against the non-renewal of her contract, but did not think that it would have changed the outcome. The doctor brought a succesful claim for unfair dismissal in the ET. Her employer appealed, arguing that informing her of vacancies as required by the Fixed Term Employee Regulations satisfied the requirements of fairness, or at least provided evidence in support of it having acted fairly.The EAT dismissed the appeal and concluded that compliance with the FTER doers not of itself create a defence to an unfair dismissal claim. The Tribunal was entitled to find that the dismissal was unfair due to the employer's failure to expand upon its initial discussion with the doctor regarding alternative roles, and not providing a right of appeal against the non-renewal of her contract.

Female Employee Wins £24,000 Discrimination Award

A female employee at DWP has been awarded £24,000 in compensation after she was discriminated against because of IVF treatment.In the case of Ginger v Department for Work and Pensions, the Employment Tribunal held that the DWP had discriminated against a female employee when a colleague asked her whether she could cope with a second child and when she was refused leave to take further IVF treatment. Mrs Ginger commenced her employment with the DWP in July 2009 , where she was employed as a work coach at Luton Job Centre.In 2011, she began a course of IVF treatment and gave birth to a son.In 2013 she began a further course of IVF treatment and in June 2014 she had a three-day absence from work for pregnancy - related /childbirth complications.In July 2014 she began a further course of IVF treatment and informed her then - manager, Mr Mills, that she may need time off at short notice for IVF treatment. At the end of September 2014, Mrs Ginger suffered a miscarraige and was therefore absent from work until January 14th, 2015. On January 15th, 2015 Mrs Ginger attended a return to work interview with Mr Mills.Mrs Ginger confirmed that she had been absent from work after suffering two miscarraiges , and that she was undergoing counselling due to her miscarraige.Mrs Ginger alleged that at this meeting Mr Mills stated to her "in order to have a miscarraige your pregnancy must be confirmed". Mrs Ginger subsequently made a claim for pregnancy discrimination in the Employment Tribunal, which upheld her claim as follows: In April, 2015 Mr Mills asked her if she could cope with a second child and whether it was a good idea to have further IVF treatment - the Tribunal found that this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner.The Tribunal also found that, as Mrs Ginger was refused leave in May 2015 to attend for further IVF treament - this conduct amounted to direct sex discrimination, as the Tribunal held that Mr Mills would not have spoken to a man in this manner. Ginger v Department for Work and Pensions 3401940/2015

Friday, 13 April 2018

Data Protection Deadline Looms

By May 25th this year, the General Data Protection (GDPR), agreed by the European Parliament in April 2016, will replace the Data Protection Directive 95/46/ec as the primary law regulating how companies protect EU citizens' personal data.

Companies that are already in compliance with the Directive must ensure that that they are compliant with the new requirements of the GDPR before it becomes effective. Companies that fail to achieve GDPR by May 25 will be subject to stiff penalties and fines.

What is GDPR?

There are two main factors behind the introduction of GDPR. The biggest one is the EU's desire to bring data protection law in line with how people's data is being used, especially considering that firms like Amazon, Google,Twitter and Facebook offer their services for free, as long as people offer their data to these tech giants. The dangers of granting such vast permissions can be illustrated by the ongoing Cambridge Analytica scandal, where 50 million Facebook profiles were harvested for use by third parties.

Who Does  GDPR Apply To?

'Controllers' and 'processors' of data need to abide by the GDPR. A data controller states how and why personal data is processed, while a processor is the party doing the actual processing of the data. So the controller could be any organisation, from a profit-seeking company  to a charity or government. A processor could be an IT firm doing the actual data processing.

Because GDPR is a regulation, not a directive, the UK does not need to draw up new regulations - instead, it will apply automatically.

Is you company compliant please call me for a review of your policies on 07846692325

Friday, 2 March 2018

New Tax Rules for Termination Payments

'The HM Revenue and Customs Employer Bulletin issue 70' has reported that there will be new rules for termination payments made on, or after 6 April 2018

As an employment lawyer terms such as the 'PENP' will be alien..

'Payments in lieu of notice'

With effect from 6 April 2018, some payments and benefits made in connection with the termination of an employment will be chargeable to income tax and Class 1 National Insurance Contributions (NICs) as general earnings and will not benefit from the £30,000 threshold. This change applies to payments, or benefits received on, or after 6 April 2018 in circumstances where the employment is also ended on, or after 6 April 2018. The legislation being introduced splits payments and benefits, which fall within Section 401(1) ITEPA 2003, into two elements.

The first element, post-employment notice pay (PENP) is taxable as general earnings and will be subject to Class 1 NICs from 6 April 2018, subject to parliamentary approval. The PENP represents the amount of basic pay the employee will not receive because their employment was terminated without full, or proper notice being given.

PENP is calculated by applying a formula set out in the legislation to the total amount of the payment, or benefits paid in connection with the termination of an employment.

The second element is the remaining balance of the termination payment, or benefit, which isn’t PENP. This is taxable as specific employment income to the extent that it exceeds £30,000 and is treated in the same way as other payments and benefits taxable under section 403 ITEPA 2003.
PENP calculations should not be applied to statutory redundancy payments. These payments are always taxable as specific employment income and subject to the £30,000 exemption where appropriate.

As an employer you will be required to apply the PENP formula to the total amount of relevant termination payments, or benefits. You should operate PAYE to deduct income tax and Class 1 NICs from the amount of PENP from 6 April 2018. You should then apply the £30,000 exemption, where applicable, to the second element of the relevant termination payment and deduct income tax (but not NICs) accordingly.