3,400 care workers have received a total of £650,000 in back pay following a HM Revenue and Customs began an investigation into the sector’s national minimum wage situation.
At least 130 care providers have been investigated in the last 12 months and fines totalling £122,249 have been issued to companies that were paying staff below the minimum wage since April 2015.
Many of the cases involved care workers who were not paid for the time they took travelling between jobs. Others were underpaid for the hours they spent delivering live-in care. Paramedics and firefighters are not paid only for time spent treating patients or putting out fires and HMRC considers that home care workers should not be treated any differently. To exclude this time can result in the National Minimum Wage Act being breached.
17 care workers, employed on zero-hours contracts are currently involved in ongoing legal action against contractor Sevacare. They claim they are paid just £3.27 an hour, as they are effectively working 24 hours a day once waiting time is included. In one case, they live in the home of an elderly woman with severe dementia for seven days at a time.
The minimum wage currently stands at £7.20 per hour for over 25s, but estimates are that about 16,000 care jobs are paid below this level, leading to an average underpayment of £815 a year per worker. Employment Relations Minister, Jo Swinson, has stated that “anyone entitled to the national minimum wage should receive it. Paying anything less than this is illegal and unacceptable.” Therefore we can expect more regulatory interest and tribunal claims in this sector.
The news marks arguably the most significant ever intervention by HMRC into pay issues in an individual sector, which was carried out in response to a series of complaints from unions and individual care workers. HMRC has said that its next target could be employers that use freelance staff on a long-term basis.
This serves as a warning to all sectors who are not abiding to wage laws in relation to employees. An HMRC spokesman said, “all businesses, irrespective of their size or business sector, are responsible for paying the correct minimum wage to their staff. HMRC continues to crack down on employers that ignore the law.”
By Gina Mukova
Image used under CC courtesy of Brian Bullockhttps://www.flickr.com/photos/bcpltd/Read More
The term “precarious employment” is being used more and more. Another term for it is the “gig economy”. A Government-commissioned inquiry into modern employment practices is gearing up. Precarious workers are those who fill permanent job needs but are denied permanent employee rights. They are subject to unstable employment, lower wages and even more dangerous working conditions. They rarely receive family-friendly rights or pensions and are often denied the right to join a union. Women, minorities and migrant workers are much more likely to fill these kinds of jobs.
The number of workers in the UK in precarious positions has grown by almost 2 million in the last ten years. This comes as a result that more and more businesses prefer using more self-employed workers and are increasingly recruiting staff on temporary and zero-hours contracts.
For example, companies such as Tesco and Argos use thousands of agency temps. Also, currently, Sainsbury’s is using 54 different employment agencies for its temporary warehouse workers. The taxi company Uber are among firms relying on 4.7 million “self-employed” workers, although see our recent article on the legal challenge by two of its drivers.
The increase in precarious workers has stirred up anxiety about low pay to the extent that more than 10,000 people called the Acas helpline from May to September 2016 voicing concerns that they were not receiving the statutory minimum. This is a 73% increase on the same period last year. This means that the UK currently has more full-time employees in low pay (as a percentage) than all but seven of the 22 developed nations in the OECD.
The long-term employment trend has hit young adults the hardest. The proportion of working 16- to 20-year-olds in low pay rose from 58% in 1990 to 77% in 2015, while the proportion aged 21 to 25 rose from 22% to 40%, according to Resolution Foundation analysis. This can hardly be encouraging for the next generation of employees. However, older workers have become less likely to suffer from low pay.
There are currently about 750,000 more people are on zero-hours contracts than in 2006, and over 200,000 more people are working as temps, according to the government’s labour force survey.
It remains to be seen if these statistics will be affected by the formal trigger of Article 50 of the Lisbon Treaty by Prime Minister Theresa May – see our Brexit series for more details.
By Gina Mukova
Image used under CC courtesy of Ding Yuin ShanRead More
Hundreds of lawyers are arguing about Brexit at a consitutional and government level. Businesses are uncertain about Brexit, leaving many areas of our society anxious about the future.
Many countries, including Japan, the United States and Canada have voiced their worries over the past few months of the potential impact that a poorly-handled Brexit could have on their ability to run their businesses from the UK.
Some companies are showing concern, not only with the impending departure from the EU itself, but also with the lack of clear information being published by the government about its position in negotiating the future after triggering Article 50 of the Lisbon Treaty.
Lincolnshire employer, Smiffy’s, has already voiced their concern over the time taken to break ground with Brexit. They say they have experienced a loss of sales, and only expect this to increase as time goes on and a lack of direction remains. As a result of this, they have made plans to move their headquarters to the Netherlands echoing the fears of other companies earlier in the year such as banking giant JP Morgan and Vodafone.
One fear is the lack of access to the single market. Many see this as a step backwards. Another is the impact of a restriction on EU migration, with many employers saying that this could reduce the level of skill and expertise available in the job market.
However, there is a flipside to the argument. Whilst some businesses are expressing concern, others (albeit smaller businesses) have said they could potentially benefit from the lack of bureaucratic restraint on trade and business which some see as inherent within the EU.
Theresa May is steadfast in her plan to enact Article 50 by the end of March 2017. There had been fears that this could be postponed but she has secured this timetable in a vote in the House of Commons.
It wasn’t long before lawyers became involved; a High Court ruling at the beginning of November ruled that the government cannot trigger Article 50 without support from the House of Commons. This is being appealed to the Supreme Court and the outcome of that appeal is not known.
This had an enormous impact; the value of the pound rocketed to a four-week high. If the ruling of the Supreme Court in January 2017 upholds this decision, we think that it is likely that the desire of businesses to escape the UK to avoid the impact of a “hard” Brexit will be lessened. Hard Brexit is leaving without obtaining a prior agreement on EU tariffs, meaning we fall back on less favourable ETO rules.
Will Theresa May manage to negotiate a “soft” Brexit , protecting jobs abroad and securing trade with our old partners? Or, will the advocates of a “hard” or “clean” Brexit emerge victorious, effectively ending our relationship with Europe in favour of, what they argue to be, more lucrative opportunities with the rest of the world and an end to the restraint placed on the UK by excessive bureaucracy? At this point, it is still uncertain, and this lack of certainty is beginning to show itself now in decisions that will undoubtedly affect our society as a whole, and importantly, our businesses.
by Connor Singleton
Part of our Brexit seriesRead More
Diversity at the workplace is a preoccupying issue for discrimination lawyers. The law recognises that certain groups of people are discriminated against because of their gender, disability, sexual orientation, religion or ethnicity.
In 2010 the Equality Act confirmed the legality of positive action for employers, while making positive discrimination unlawful. What is the difference? Positive action aims to erase inequalities in employment and promote diversity. However, those who disapprove of positive discrimination argue that to be equal, employers should be blind to all characteristics that could potentially lead to discrimination, and hire their employees solely based on their ability to do the work. The problem is that, even if all candidates are equally qualified and experience, the ‘blind’ approach will do nothing to redress an imbalance of minorities in the workplace
There is a fine line between positive action and positive discrimination, as discrimination lawyers know. Positive discrimination is employing individuals solely based on their under-represented social group. For example, setting out to hire Asians, regardless of skills or experience in order to improve diversity. Only disabled people can benefit from positive discrimination. To set out to hire, say, lesbians or younger men would be unlawful.
Positive discrimination is employing individuals solely based on their under-represented social group. For example, setting out to hire Asians, regardless of skills or experience in order to improve diversity. Only disabled people can benefit from positive discrimination. To set out to hire, say, lesbians or younger men would be unlawful.
On the other hand, positive action is allowed. Employers are permitted to favour one out of a number of equally adequate candidates on the basis of their protected status. However doing so is not mandatory and there is a perception that doing it, even for laudable reasons, would get employers into trouble if candidates found out. We have never seen, for example, a rejection letter that says ‘We are sorry not to pursue your application as there were women of child-bearing age who were just as qualified and we wish to hire on of them to improve our diversity statistics’. Nor would any sane employer record that reasoning in an internal memo, even though the law would protect them. To do so would just invite litigation on the basis that the disappointed candidate was better suited for the job and discriminated against.
So why are quotas in the workplace unlawful? It can be explained by the fact that our society is meritocratic, therefore the most deserving applicant should be hired. The term ‘as qualified’ can be ambiguous. For example, two candidates could have very different profiles: one could have no work experience but a degree, whereas his competitor could have a lot of work experience but no qualification.
One reason why an employer might want to have a more diverse workforce is that it is a great defence when faced with a discrimination claim. It is harder to complain that your employer is institutionally racist if all races are well-represented in the workforce
Employers should always be objective, set out specific and unambiguous criteria for the selection of their candidates, and finally, understand which groups are under-represented and aim to redress this balance with positive action, albeit that discrimination lawyers advise them not be too transparent about doing it.
By Lily Wilde
Image used under CC courtesy of DryHundredFearRead More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Eva from Solihull. Settlement agreements are bread and butter to us and we deal with several every month.
Eva had a decent job working in middle management but fell out with her manager after a miscommunication by email that left egos bruised.
She was offered a settlement agreement under which she would leave quiety for her notice pay without having to work her notice, with the threat of “an HR process” if she didn’t accept it.
She looked for employment lawyers in Birmingham and found us.
We advised that, as she had more than two years’ service, she couldn’t be dismissed without a fair reason and there didn’t seem to be one here. She thought that she could find another job within three months but it wasn’t guaranteed. So she was looking for anything more than three months’ notice.
However, her employers weren’t actually threatening to dismiss her if she didn’t accept the deal.
We offered her a deal under which we would negotiate with the employer and seek six months pay instead of three months and charge a percentage (35%) of the extra portion that we managed to negotiate, if any.
The negotiations were protracted. The employer threatened to invite Eva to a disciplinary. We advised her to hold her ground. She had been intemperate in her email but in our view it wasn’t a sackable offence. The employer also alleged that her colleagues were refusing to work with her. Their witnesses didn’t really back that up but they did suggest that Eva had been abusive to them, albeit a long time ago.
An employer is entitled to raise historic disciplinary allegations, if it is only hearing about them for the first time. But the longer that there has been since the events that took place, the less fair it is to punish the employee for them. We advised her to stand firm and ignore the threat.
She attended the disciplinary and once the evidence was out in the open, we put to the employer that they didn’t have enough to dismiss, so she wouldn’t be leaving. Eventually they increased their offer to five months pay but coupled it with a threat to dismiss.
By that stage, we felt that we could advise a deal, because the threat to dismiss made sure there was a legal dispute between the parties. That means that the money on the table could be called compensation (which isn’t taxed) rather than notice pay (which, in certain cases, including Eva’s), is taxed. So, with the additional sum of money that would have gone to the taxman, Eva was able to leave with well over 6 months’ pay, which was enough for her to take the deal.
We finalised the negotiations and tied up the agreement for her, leaving another satisfied customer with a successful Solihull settlement agreement.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Michael Coghlan used under CC
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Dav.
Dav drove HGVs for 15 years with the same company. A few years ago he started suffering health problems and his employer re-assigned him temporarily to a different role.
He was diagnosed with sleep apnoea, a condition that interrupts breathing during sleep. Left untreated, this can cause the patient to fall asleep during the day. Once the diagnosis was made, his doctors notified DVLA, who suspended his driving licence until it could be treated. He was treated with a Continuous Positive Airway Pressure (CPAP) machine, to be used whilst he was sleeping. After his doctors signed off that it was working, he was allowed to resume driving by the DVLA.
A couple of years later, at a routine hospital review, he learned that he had been using the machine slightly wrongly and again the doctors told the DVLA.
However, this time, his employer had had enough. He was sacked on the spot.
Dav searched for employment solicitors in Birmingham. Employment law was on his side. It is unfair dismissal to sack someone with more than two years’ service without following a procedure. Sacking someone on the spot is no procedure at all and in his case that would lead to £5k in compensation.
But he could also expect to receive a large award / settlement if he could show that dismissal was also unfair in practice. This would be the case if the decision to dismiss would have been the same, even after a proper procedure. In that case he could expect to obtain compensation for a reasonable period of lost income.
And because sleep apnoea is a medical condition that qualifies as a disability, the actions of the employer drove a coach and horses through the Equality Act’s employment law protections for the disabled, amounting to discrimination. The dismissal was discrimination for a reason relating to his disability, that reason being the suspension of his licence.
He came to us for employment law advice and we offered to take his case on a no-win, no-fee agreement, which would entitle him to legal advice all the way to trial at no cost if it was unsuccessful.
The employer’s only real argument was that without his licence, if Dav had no income if wasn’t because he was dismissed (the employer’s fault) but because couldn’t get a new job with his medical condition (not the employer’s fault). They would still have to pay compensation but not as much. So Dav worked very hard to chase the hospital and DVLA to get a clean bill of health and his licence back, which took away this argument.
We had to issue a claim to do it but we secured a settlement for just under £20k. The employer learned a valuable lesson that day.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Sally Butcher, used under CC
Does employment law mean that interns should be paid whilst being trained?
In November 2016, the government refused to ban unpaid internships by blocking the National Minimum Wage (Workplace Internships) Bill. The refusal to pass the Bill was justified by the fact that paying interns would add financial pressure to firms.
Current employment law insists that interns be paid the national minimum wage if they fulfill the definition of a “worker”. That is, someone who performs work personally under a contract.
A contract requires that both sides make promises about the continuation of the working relationship.
Little case law exists on the matter, but in one a Ms Reilly was working for nothing in a big store, accused her employer of breaching her human rights with regard to slavery. The Supreme Court (House of Lords) found for her, saying that Parliament had not given authority to the Department of Work and Pensions to create these back-to-work schemes.
True interns are volunteers; that is they enter into an arrangement which
- Does not entitle them to financial reward.
- Does not require them to turn up to work.
- They should not produce work that an employee would be paid for.
We and some of our clients use interns. We give them detailed feedback on their work, which makes the relationship more about them learning a skill and less about our firm using free labour. We don’t impose any expectation of them turning in any work.
To conclude, opinions on the subject are diverse. While some people argue that unpaid internships are a form of modern day exploitation, others say that they provide a chance for an intern to see in depth how paid employees work, gaining experience and skills. Twenty-two Members of Parliament are currently advertising for unpaid internships, which shows reluctance to ban them, even in Parliament.
The debate concerning the bill is definitely not over, as it will be re-considered by Parliament in February 2017.
By Lily Wilde
Image used under CC courtesy of Paul InklesRead More
A much-talked-about type of sex discrimination is the fact that women earn about 20% less than men. We’ve written about a different wage gap recently but today we saw that Bloomberg has reported that there’s a wage gap for bisexuals, too.
According to an American study bisexual women earn between 7% and 28% less than straight women, and the figures for bisexual men are 11% to 19% less than their straight colleagues.
The gender pay gap results from factors like working fewer hours and needing a more flexible schedule because of childcare. But these reasons don’t apply to bisexual workers any more than they do for the general population.
The author says that when you take into account the effects of motherhood, fatherhood and marriage the wage gap between lesbian and heterosexual women falls away.
But these factors are less prevalent among bisexuals, meaning that the findings are suggestive of discrimination.
The author says he found in other research that bisexuals are more likely to be perceived as immature, dishonest, and incompetent than straight and gay counterparts.
That means that bisexual stereotyping may be having an effect on bisexuals’ pay.
Bisexual stereotyping includes phrases like “greedy”, “indecisive”, “uncommitted”, “undeveloped”, which bisexuals find naturally irritating. Even many people who champion gay equality will express these views, meaning that bisexuals can fear coming out.
This is an interesting study and though we have been involved in several cases to do with sexuality discrimination we have never seen a case involving bisexuality. Bisexuals should remember that being taunted for being straight or for being gay is just as much sexuality discrimination as harassment on the basis of being bisexual.
We would love to be able to help a client with a sexual orientation discrimination client; they are interesting cases and bringing them can make a real difference to those involved.
By Jason Harbourne
Image licensed under CC, used courtesy of HTorbak HopperRead More
Birmingham’s employment solicitors are watching the case of a teaching assistant who was sacked for complaining about her pupils being shown footage of the 9/11 New York tower attacks.
She felt her 11-12 year olds shouldn’t be watching footage of the towers’ occupants falling to their deaths, which was shown as part of a class on poetry. She was dismissed an hour after raising the issue with her managers.
She has been offered £11,000 to settle her claims for whistleblowing-related unfair dismissal and discrimination but is holding out for an apology at a December 2016 hearing, if the matter doesn’t settle at a November mediation.
After dismissing her, the school allegedly completed an internal safeguarding form that raised concerns about her suitability for a role in teaching. The form also suggested that she had been motivated by her faith when raising the concerns.
For her part, the former employee insists that she was motivated only by concern for the children and to have suggested that her religion was relevant was discriminatory.
The school is one of those named in the so-called trojan horse scandal, which was about Muslim agendas in the management of Birmingham schools.
Hatton James Legal advised two teachers from other trojan horse schools, which treated them badly in 2013-2015. One was a disabled IT teacher who was left on the shelf and not permitted to return to work after an operation. The other was an English teacher treated similarly when she fell pregnant. We secured compensation payments for them substantially more than the £11,000 reportedly offered to the teaching assistant in this case.
Because of its topicality, Birmingham employment solicitors are taking a keen interest in the case.
The school in this case, advised by employment solicitors in Birmingham County Councils legal department, refused to comment while the case was ongoing.
Reporting by Jason HarbourneRead More
The Employment Appeal Tribunal has just given an important judgement on whistleblowing law in the UK. It decided that a judge (Judge Claire Gilham) was not an employee, but a “post holder”, which is a different concept in employment law. As she did not have a contract of employment with the Ministry of Justice she was not a “worker”. Therefore judges are not protected by whistleblowing laws.
District Judge Claire Gilham had tried to show that she was protected as a whistleblower, meaning she needed to show she was a “worker” as defined by the Employment Rights Act 1996.
She went public about the way she had been bullied, harassed and overworked during her tenure to Warrington County Court in 2009. This had led to her suffering a nervous breakdown.
The case had previously been dismissed by an employment tribunal hearing, which found that she was not a “worker”. This was upheld by the Employment Appeal Tribunal recently. It went on to state that when Judge Gilham was appointed to the bench and the correspondence letters she had with the then lord chancellor clearly did not amount to a contract of employment between herself and the Ministry of Justice.
The EAT went on to state that Judge Gilham’s right to freedom of expression under the European Convention of Human Rights was merely a fudged attempt to add an extra category of a worker for someone who did not need to have a contractual relationship but who could still benefit from the current legislation on whistleblowing.
These cases show that there are categories of staff (such as self-employed) who may think that they are “workers” for the purpose of whistleblowing legislation but who are not afforded protection.
By Sanjeev KumarRead More