Zero-hours contracts
According to the Working Families association many on zero-hours contracts are unwilling to access existing employment rights because they often feel they do not have any right to complain of any unfair treatment they might be getting and fear that if they do assert their rights they will no longer be given the chance to work.
Also most callers to the Working Families helpline are stressed due to pay being unpredictable i.e. people are unable to predict how much they will earn in any week. Families then struggle to set a budget and suffer difficulties with planning for maternity. In some cases this may lead the worker to become stressed due to financial reasons and suffer other related side effects.
According to The Guardian, the Office for National Statistics said the number of estimated people to be employed on zero-hour contracts for their main job was 697,000.
This represents the 2.3% of all people in employment. In the same period in 2013, the figure was 1.9% of all people in employment, or 586,000.
In 2013 Vince Cable (the minister in charge of employment rights) said that zero hour contracts was actually not the problem, it was the employers who abuse them, many problems arise when companies use zero-hours contracts for most of their staff which in turn will cut their own costs and while limiting the rights that their workers are entitled to.
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Restrictive covenants
This is a story about restrictive covenants, an area that trips up more employers than perhaps any other – and it doesn’t usually involve the employment law tribunal.
In a recent case, a company developed very specific bespoke just-in-time software for the fresh produce industry. When its sales manager resigned to join a competitor they dusted off a copy of his contract, which contained a 12 month non-competition restrictive covenants banning him from selling “any products with which you were involved whilst employed by us in the last 12 months”.
What they meant of course was not “don’t sell our software with a competitor” but “don’t sell software in the fresh produce industry – feel free to sell software in other sectors, or point-of-sale software in the fresh produce sector – just stay away from competing with our program”.
The employee’s lawyers noticed that the wording “products with which you were involved” could only mean the employer’s own-brand software. He argued he was free to use his knowledge about the intricacies of how the program (that he by now knew inside-out) to let his new employer get a foothold in that market.
In a surprise decision, the judge was persuaded to read that restrictive covenant clause as if it said “products with which you were involved or similar products”, thus preventing him from joining his competitor.
The employer won by the skin of its teeth. But not before spending, no doubt, upwards of £15,000 on a trip to the High Court of Justice.
Case report: Prophet PLC v Hugget (2014)
Read MoreOn-call
If you have staff who need to be available to deal with work as it arises (perhaps on an emergency basis), you may have grappled with the question of whether you need to pay them for being on-call.
Examples include key-holders, medical and caring staff, the emergency services, farm managers and certain employees in the catering and service industries. Sometimes, accommodation is provided for the specific purpose of being on call.
Where time on call has to be spent at the workplace, this counts as working time, whether or not the employee is actually working.
Hours spent on call away from the workplace, where the employee is free to pursue leisure activities, only count as working time for time actually spent working. But there are grey areas, for example when you require your staff to be contactable and to respond promptly if needed.
This was highlighted recently in a recent employment tribunal case brought by ambulance paramedics (Truslove and another v Scottish Ambulance Service). They were obliged to stay within a three mile radius of the ambulance station, ensuring that they could reach the station within three minutes if needed. Subject to that, they could do their own thing. No-one lived in that radius.
They were required to be on duty in case their services were needed. They weren’t given rest periods if there was nothing to do and they asked an employment tribunal whether being on call was the same as being at work. Was it working time? Rest time? Their own time?
Some definitions and principles:
- Time spent working, at your employer’s disposal and carrying out duties.
- Where a worker is obliged to stay in the workplace and be available for work if needed, this is working time and not a rest period, even if allowed to sleep – the EU case of SIMAP v Valencia.
- This is the case even if it’s not the workplace, but a place nominated by the employer – EU case of Jaeger and MacCartney.
- If they are merely obliged to be in a general radius from the workplace so as to respond promptly, this could be a rest period – Northern Irish Court of Appeal case of Blakley v South Eastern Health and Social Services Trust.
The Employment Appeals Tribunal found that the paramedics were working. Here are some pointers for deciding the likely outcome:
A requirement to be present at a place or on call but very near a place determined by the employer will be working time.
Lack of freedom to do their own thing is relevant. But merely requiring an employee not to go abroad in on-call time would not make it working time
A requirement to meet a target response time of three minutes is so short that it points towards working time.
Where the on call location is necessarily away from home, or necessarily at home, that time is more under the control of his employer and therefore working time.
If still in doubt look at the purpose of the Directive, which is to improve living conditions and health and safety.
The take-away from this case is that workers who are subject to significant geographical constraints in on-call time are likely to be considered to be working during it.
Read MoreHome-working
A report on home-working by the Trades Unions Congress tells us that the number of people who normally work from home has increased by 62,000 to 4,000,000 over the past year, of whom 650,000 are disabled.
The TUC makes the point that offering home-working can attract employees who would otherwise be discouraged by high commuting costs and that almost all studies show that it is more productive.
However, despite the many advantages of home-working many employers don’t trust their employees to work from home. We think that the rise in super-fast broadband is likely to boost this trend still further.
Read MoreSSP – Workplace sickness gets pricier
From April 2014, Employers can no longer reclaim SSP from HMRC in cases of employee sickness.
SSP is £87.55 a week for up to 28 weeks. Until now, employers would foot the entire monthly bill for SSP payments up to 13% of its national insurance contributions that month but the state would reimburse the rest.
This gave employers having over a certain level of sickness no incentive to bring sickness levels down.
Now, employers will foot the whole bill.
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