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.

Thursday, 1 March 2018

Whistleblowing - knowledge of decision maker

Predictably and logically The EAT has held that a decison-maker must have personal knowledge of a protected disclosure and be motivated by the disclosure when subjecting a whistleblower to a detriment , in order to be liable in a whistleblowing detriment claim.The knowledge and motivation of others cannot be attributed to an innocent decision-maker who does not know about the protected disclosure.

In this case ,the EAT, in dismissing the appeal,found that the ET did not err in failing to refer expressly to an aspect of the Claimant's case that was neither pleaded nor identified in the agreed List of Issues

Malik v Cenkos Securities Plc

Expiry of Fixed -Term Contracts

A recent decision from the EAT serves as a useful reminder  for employers that the law on unfair dismissal still applies  to the non-renewal of a fixed -term contract and that the usual procedures to avoid a claim for unfair dismissal  may need to be followed  when the fixed-term comes to an end.

In this case, concerning a locum doctor employed on a series of fixed - term contracts , the EAT upheld the employment tribunal's finding of unfair dismissal because, when notice was given of the non-renewal of the fixed - term contract , there was no discussion about alternative roles and no mention of a right of appeal.

The EAT,in dismissing the Appeal, did not err in law either by substituting  its own view for that of the employer on the issue of fairness , nor by placing too high a burden on the employer when decidiing that it should have offered to discuss possible alternative employment with the employee.

Royal Surrey County NHS Foundation Trust v Drzymala

Rest Break Crucial

The EAT has held that the length of the 20 minute rest break required for workers under the Working Time Regulations is crucial  and cannot be met by aggregrating breaks  of a shorter duration.

In this case,the signalman who worked on his own on a stretch of railway  that was nor busy , was able to take shorter , naturally occurring  breaks  between trains and these breaks amounted to significantly more than 20 minutes over the course of his shift.

However , the EAT made it clear that the length of the break was crucial and as each break  was less than 20 minutes the employer was held to be in breach  of the Working Time Regulations.

They rejected the argument that the Network Rail's system in this case was actually better from a health and safety point of view than a system involving a continuous 20 minute break.

Crawford v Network Rail Infrastructures Ltd

Injury to Feelings Payable in Working Time Detriment Claims

A worker has the right not to be subjected to a detriment for refusing to comply with a requirement that breaches the Working Time Regulations 1998. In South Yorkshire Fire & Rescue Service v Mansell and others, the EAT held that tribunals may make injury to feelings awards in such cases.

Mr Mansell, a firefighter employed by South Yorkshire Fire & Rescue Service,refused to volunteer for a new shift pattern which contravened the Working Time Regulations.As a result ,he was compulsorily transferred  to another station and brought a claim  for detrimental  treatment.

The EAT,upholding the original decision,held that compensation to feelings may be awarded in working time detriment claims.With injury to feelings available  for other detriment claims under ERA, including whistleblowing and trade union membership,the EAT saw no reason why awards could not also be made for working time detriment claims.


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.

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 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.