Miscellaneous

Will this Christmas job ad lead to employment claims?

We saw this job vacancy on the internet. You might ask what is wrong with seeking a bearded retiree to a deliver parcels by sleigh and be paid in mince pies and sherry – after all this has been the protocol for centuries!

Well, it’s bound to lead to employment claims for this recruiter. Let’s take it apart:

Discrimination

The Equality Act requires a recruiter to consider a wide enough pool of potential applicants to avoid discrimination.

This advertisement deters candidates who are young (“white hair” and “retired”) and female (“beard”). Age and sex are “protected characteristics” and cannot be used as a criterion for selection.  Why shouldn’t a young female applicant, who can drive a sleigh etc, perform the job?

Using the word “active” implies that only able-bodied candidates are suitable, which again deters those with disabilities.

If Santa is diabetic there is no reason why mince pies and sherry could not be substituted with gin and sugar free tonic and salted peanuts!  This may be an adjustment the employer should consider in order to avoid employment claims.

But wait! Muslims, Presbyterians and Quakers are unlikely to be open to being paid in alcoholic drinks. This is indirect discrimination (a one-size fits all policy that affects some religions more than others).

But this is Santa we’re talking about. Santa must be an older man, that’s what the role requires.

Or, in legal terms, could the direct discrimination be justified by the ‘genuine occupational requirement’ defence?

It depends on whether Santa is performing a role or playing a role. If only people with a particular protected characteristic can do the job (the usual example is a male or white actor needed for a white male role) then these requirements are needed. But there is no such requirement to perform the role of delivering parcels.

If Santa is playing a role, then the ad is fine from the discrimination angle. But as we all know, Santa is real and the ad falls foul and could lead to employment claims.

Excluding candidates based on protected characteristics can be costly – tribunal claims can be bought by anyone who sees a job ad. All this would lead to claims of a few thousand pounds in injury to feelings per applicant who brings a claim, plus some compensation for the chance of losing out on the job by otherwise qualified applicants.

National Minimum Wage and Working Time Reg claims

Payment in sherry rather than money is a real concern, because workers should receive the NMW in the form of cash, rather than benefits in kind (regulation 10(f) of the NMW Regulations 2015). Santa must get at least £187.92 for the 24 hour shift.

Obviously, deliveries must take place overnight, otherwise the world’s little boys and girls would see them take place and the magic of Christmas would be spoilt. However the employer must ensure that no night worker doing work involving special hazards or heavy physical strain works for more than eight hours in any day (reg 6(7) of the WTR). In our view, carrying loaded sacks onto slippery roofs counts under this regulation. Therefore the employer should be looking for several candidates to cover the shift.

Under reg 7(1) Santa is entitled to a free health assessment. If that shows that the cold conditions would be bad for him (or her) then deliveries would have to take place in the daytime, on Boxing Day (reg 7(6)).  Regardless of the health check results, Santa would have to get the deliveries done in 13 hours to get the 11 hours’ uninterrupted rest per day given by regulation 10.

Other WTR regulations allow Santa regular rest breaks because the work is ‘monotonous’. Santa should certainly take opportunities to sit down in armchairs by the fireside.

Holiday entitlement accrues, of course, as Santa rides around the world’s rooftops. Parents should put an extra 12.07% of sherry in the glass and leave a note to explain that the extra sherry represents rolled-up holiday pay.

There is no legal entitlement to extra pay for working on a bank holiday.

Could Santa be self-employed? This is an uncertain area for employment claims and we’re sure many Christmases will go by before this is area becomes clear. As there are no hours mentioned in the ad, we presume Santa will be on a zero-hours contract, which indicates they are likely to be a worker rather than an employee.

Neither the NMW nor WTR apply to self-employed people. If so, ignore everything in this section!

Health and safety

Anyone thinking of giving alcohol to staff needs to know that they may end up sharing liability for any alcohol-related sleighing accidents that take place.

In fact, Santa’s job is a health and safety nightmare from the employment claims perspective. Chimneys may look roomy at the top but the health and safety people don’t let children or grown-ups go up or down chimneys these days.And we’re not even going to discuss compliance with the Work at Height Regulations 2005!

Merry Christmas from Hatton James Legal!

Carers and sleep-ins – an important development

There has been a huge recent development which sleep-in carers across the country will want to be aware of, potentially changing the lives of carers everywhere. The case has even excited the interest of the newspapers.

Should carers be paid the minimum wage during sleep-ins? There has been a wide range of academic opinion and conflicting cases. Some have argued that being paid the minimum wage whilst sleeping is outrageous. However, carers will rightly reply that they need be ready to wake up and provide support.

Some caselaw in the past supported the carers’ argument, saying that carers were entitled to the national minimum wage during sleep-ins, eg with night-watchmen, nurses answering non-emergency calls and care home managers. But the case of Tomlinson at the Court of Appeal has overturned them. The days of carers earning the minimum wage whilst they sleep are over.

Carers will now be classed as “available to work” under the National Minimum Wage Regulations. But they are not entitled to pay if “by arrangement” they sleep “at or near a place of work and are provided with suitable facilities for sleeping”. This would cover situations where someone is given a bed and told to sleep, but not ones where a mattress is put in an office and they are permitted to sleep.

So, what does this mean? Firstly, as we’ve already said carers will no longer be given the minimum wage whilst they sleep. Naturally, this will be seen as a source of frustration for many carers across the country as they are set to see their earning decrease significantly. But it’s good for charities such as Mencap and others that provide care, as the practice of paying a flat fee (£20 to £40) for a sleep-in has effectively been approved by the second-highest court in the land.

The courts haven’t completely removed the idea of carers being paid during sleep-ins. If carers are woken during the night then they are entitled to be paid for their work.

By Samuel Tahir

Image used under CC courtesy of Hugues.

Case report: Tomlinson-Blake v Mencap 2018 EWCA CiV 1641

Employee, self-employed or worker? Pimlico Plumbers lose appeal

Employment status has been the hot topic, particularly on the question of whether staff are employees, self-employed or workers (like the cases of Uber and Deliveroo).

Pimlico Plumbers have unsuccessfully appealed to the Supreme Court to overturn the decision that Mr Smith, a plumber, had worker status (rather than being self-employed).

Facts

Mr Smith had been working with Pimlico Plumbers for around 6 years. He suffered a heart attack in January 2011, and asked Pimlico whether he could reduce his hours to work 3 days instead of 5 days a week. Pimlico in response refused his request, took away his van and dismissed him. He took Pimlico to the Employment Tribunal (ET), claiming he was (1) unfairly dismissed, (2) discriminated against on the grounds of his disability; and (3) that he was entitled to holiday pay (among other claims).

One of the key issues the ET had to consider was whether Mr Smith was an employee or a worker. The truly self-employed can’t bring discrimination claims.

Mr Smith’s contractual documentation stated that:

1. He was an ‘independent contractor’;
2. He was not obliged to accept work;
3. He should complete a minimum of 40 hours a week;
4. He must provide his own materials and tools; and
5. He must drive a branded van, wear a uniform and carry an ID card.

In addition, Mr Smith was VAT registered, submitted invoices to Pimlico and filed his own tax returns.

The law

The courts have constructed a number of tests to help them decided whether or not someone is an employee. There are 4 elements:

– An individual must have a contract (express or implied)
-An individual must carry out the work personally
-There has to be a ‘mutuality of obligation’ between the two parties
-The employer must have control over the work that the individual does.

The decision

The ET decided that Mr Smith wasn’t an employee, but he did have worker status (a kind of intermediate category between employee and self-employed).

Pimlico appealed to the Employment Appeal Tribunal, and the Court of Appeal, however both appeals were unsuccessful. Pimlico then appealed to the Supreme Court.

Decision

The Supreme Court rejected Pimlico’s appeal because of its findings:

1. There was personal service – Mr Smith’s contract clearly required him to perform the services personally to Pimlico; and
2. Pimlico was not a client or customer of Mr Smith – Pimlico had an obligation to offer Mr Smith work when it was available, and he was contractually obliged to keep himself available to work up to 40 hours on five days each week for Pimlico’s assignments.
3. Mr Smith’s contract stated that he could not accept work from customers or potential customers without their approval first – he was not in control.

This means that Mr Smith is entitled to holiday pay, to pursue his claim for disability discrimination in relation to his heart attack and areas of pay.

This area of employment status has been in legal flux for a long time, and this case doesn’t provide any further clarity. However it provides the latest warning to employers to fully evaluate the relationship between them and their staff when deciding whether staff are employees, self-employed or workers.

By Aneesha Ali-Khan

Image used under CC courtesy of Eli Duke

Barrister takes law firm to court for monitoring personal e-mails

Robert Jones (an employed Barrister at a law firm) has made a claim for breaching data protection laws, alleging that the firm accessed his personal emails over a period of several months.

This article looks into the facts of this case and give an explanation of the law in this area.

Facts

Mr Jones was an employed barrister at a law firm called Lexlaw. During his employment, he and a colleague exchanged messages (about kinky sex), detailing their preferences. There was an incident when he spanked this colleague over a desk at work. No immediate action was taken. Months later, Mr Jones got into a salary dispute with Lexlaw and resigned. When he refused to reconsider his resignation, Lexlaw suspended him for the spanking incident (an employee can be suspended during their notice period). Mr Jones resigned and took legal action against Lexlaw, alleging (among other things) that they had breached data protection laws by monitoring his emails.

Mr Jones said:

‘I had a consensual BDSM relationship with another employee, which included one brief incident in private on work premises months before the disciplinary. I was appalled to find out that my employer was monitoring my personal communications over a period of months and the ICO have confirmed that this is unlikely to have complied with the requirements of the Data Protection Act.’ 

Looking at the law

Under the new GDPR regime, employers must make it crystal clear to workers (1) how they might be monitored; and (2) why. They must have done an assessment ensuring the reasons are both justifiable and proportionate, which have legal definitions. Typically, employers deal with this by having a data policy.

The GDPR (the new piece of legislation that supersedes the Data Protection Act 1998) sets out rules about when monitoring should be carried out. For example it can be justified as necessary for someone’s ‘legitimate interests’ (when balanced against the rights and freedom that an individual has a right to expect).

This could mean recording retail workers at work to discourage shoplifting. In the context of employees’ emails, this means that mean monitoring to detect fraud, or for quality control. But it’s hard to see how this would apply to this employee. Few law firms see the need to delve into employee’s emails routinely. So this wouldn’t be justified. But if they do need to look into historic emails, for example to investigate a client complaint, then it would be acceptable to use anything incriminating that was found.

The hearing is set for 16 July 2018. It will be fascinating to see whether the law firm is judged to have breached data protection laws, and if so we expect the result to be far more than the few hundred pounds normally awarded, since these emails were of such an intimate nature.

By Aneesha Ali-Khan

Image used under CC courtesy of Dennis van der Heijden

Court news

We bring you the latest news from the employment tribunals and courts in this special update.

Employment cases to be streamed from the Court of Appeal

We learned today that the Appeal Court (which hears appeals from the Employment Appeals Tribunal) is considering televising its proceedings. It will run a trial in three courts in London (though not yet for tribunal cases).

The cases will be streamed on Youtube and we will be advising our clients with Birmingham employment tribunal cases to watch some cases because it shows them what to expect from a full trial, including cross-examination.

Live streaming is already available for the Supreme Court (formerly called the House of Lords) but there are no plans as yet to extend this to other venues such as the Birmingham Employment Tribunal.

Judge in the dock 

In a separate development, we read that a judge has been charged with accessing court data on a case she was not involved in, for curiosity reasons. This is a breach of data protection laws and gross misconduct. We understand that the judge had a personal interest in the case. She faces a Crown Court trial and if convicted is likely to be fined and lose her career.

This case is of interest in light of this month’s GDPR listlation, which tightens the regulations on how companies should be storing and using personal data.

Of course, the book is being thrown at this criminal court judge, in light of who she is and the fact that she ought to know better. But it highlights that companies and their staff should all be aware of data laws and the importance of dealing with data correctly.

We have just produced a short guide to the changes in data laws for our EPS clients together with a one-stop document that covers them from all legal angles. Our EPS is a monthly HR subscription service for employers that acts as an outsourced HR department.

English Apprenticeships: avoiding giving ‘enhanced’ employment protection

Training apprentices is a great way for employers to mould and develop their staff to cater for immediate business needs and shape the future of the business. Also, apprentices can help to reduce staff turnover as they have a tendency to be motivated and loyal to the employer that has provided them with the opportunity. Employers can also receive government funding for apprenticeship programs, which will obviously reduce costs. However, as much as an asset apprentices can be to businesses, employers should be wary of unintentionally granting an apprentice ‘common law’ status.

‘Common Law’ apprentices

For centuries, all the legal principles that dealt with apprenticeships were contained in case law (also known as common law). Apprentices who fall under the common law are beneficiaries of the legal principle that the essential purpose is training, with the production of work for their employer being secondary. Therefore as the primary purpose is training, such apprentices have heightened protection when it comes to dismissal (and indirectly, sanctions) compared to non-apprentice employees. This heightened protection applies in cases of misconduct, performance management and redundancy (common law apprentices are totally protected when it comes to redundancy).

The consequences of an illegitimate early termination include the employer paying out the former apprentice for loss of earnings for the remainder of their apprenticeship term. An employer may also be required to compensate the former apprentice for the diminution of their future prospects.

‘Statutory’ apprentices

In 2008, the government wanted more apprentices, and removed the enhanced rights given to ‘common law’ apprentices so that apprentices could be dismissed like ordinary employees. It was at this time the concept of a statutory ‘apprenticeship agreement’ was born.

For employers to avoid granting an apprentice ‘common law’ status, they must ensure apprentices are given a statutory apprenticeship agreement. There are different types of apprenticeship agreement depending on whether the apprentice is doing a course that is an ‘approved standard’ or a ‘framework’. If the wrong type of apprenticeship agreement is given to an apprentice, the apprentice will be granted ‘common law’ status by default.

Therefore employers must carefully check the correct agreement is given to an incoming apprentice in order to prevent the apprentice getting the enhanced rights granted by them being of ‘common law’ status.

By Zahid Reza
Image used under CC courtesy of InstituteForApprenticeships

New report reveals current modern slavery checks are not ‘fit for purpose’

Following the National Crime Agency’s (NCA) shock revelation that Modern Slavery and Trafficking is affecting ‘every large town and city in the country’ and that the NCA’s previous estimates of 10,000 – 13,000 victims in the UK are the ‘tip of the iceberg’, a report by the University of Sheffield and the University of Bath has illuminated one of the main reasons why it is difficult to know the true scale of Modern Slavery and Trafficking in the UK.

The study focused on the food and construction sectors. The report found that whilst an increasing number of companies can accurately trace where their product comes from, many companies do not know the backgrounds of their workforce.

An owner of a UK hotel chain explained: “We have pretty much solved traceability of the food served in our restaurants. I can tell you the farm where the steak on your plate came from, probably even the name of the cow. But we have no idea where the workers came from that work in our kitchens.”

The report indicates that existing background checks are not ‘fit for purpose’ to uncover Modern Slavery and Trafficking. The researchers in this study concluded that the key is to understand and monitor the labour supply chain.

Professor Andrew Crane from the University of Bath says that if companies can find a way to trace their products, they can do the same with their workforce. He said “Twenty years ago most high street retailers did not have a clue where the products they sold actually came from. Since then, there has been a revolution in responsible business practices and companies have invested millions of pounds to trace the source of their products and tackle the myriad sustainability issues they found there. To prevent the misery of modern slavery from blighting our workforces companies must apply that same focus to their staff.”

It remains to be seen whether in light of this study, the government will take steps to ensure employers carry out a more thorough background check on workers before they commence employment.

By Zahid Reza

Image used under CC courtesy of Marissa Orton

The employment crisis in the social care sector

The employment crisis in the social care sector

Lily Wilde, Warwick University, Faculty of Law, September 2017

The social care sector covers a wide range of services ranging from work in nursing homes to overnight care at the home of the elderly or physically challenged. 1.48 million people currently work in social care and, with a predicted increase of the UK’s aging population, demand for carers keeps growing.

The sector has recently come under public scrutiny with a series of dramatic statistics over several years: 900 social care workers leave their jobs every day, a third of nursing homes fail the Care Quality Commission inspection and in 2017 more than 15% of advertised vacancies were in social care. In a country with an unemployment rate of 4.5% and a growing demand for social care workers, why is this sector facing such a crisis? This article examines the causes.

Undoubtedly staff shortages results in a permanent situation of undermanning and pressure for workers staying in the sector. However this extra workload is  also not rewarded appropriately. A full-time social care worker earns £14,800 on average per year, compared to an average salary of £27,600 across all sectors in the UK.

Additionally, the staff shortage has forced many social care workers to limit their time with their clients and increased travel between clients as fewer workers are spread more thinly geographically but some companies refuse to pay their employees for their travel time.

This can be explained by the fact that a large number of employers are private or not-for-profit companies, which cannot afford to pay their staff for travel time. For state-funded organisations, since 2010 councils have cut £4.6 billion from the adult social care budget: due to this lack of funds, many services have had to close. However the law specifies that a worker is entitled to the National Minimum Wage, and should be paid for travelling time during working hours. This does not include the travel time between the worker’s home and the workplace, but it includes all travels undertaken during the work time between the clients’ homes or nursing homes.

The social care sector encompasses many diverse activities. One of the difficulties of a social care worker’s situation lies in the fact that they might be required to sleep at the client’s house. The 2013 case of Whittlestone v BJP Home Support created a precedent for future cases. The claimant, a social care worker, was required to stay at three of her clients’ homes overnight in order to be able to potentially provide care. She was allowed to sleep if her work was not required, however she was not being paid for that time. The Employment Appeal Tribunal had to consider whether the claimant was entitled to claim the NMW for the hours she spent sleeping at the client’s home. The tribunal differentiated between the non-core hours and the core hours of her overnight shift. On appeal the EAT concluded that she was entitled to the NMW during her non-core hours. If the worker is at the client’s disposal, for a specific purpose, and would be punished for leaving the premises during the shift, they are entitled to the NMW. Therefore even when asleep, a social care worker is ‘working’.

The constant lack of staff has created a vicious circle. The failure in the system is due to underfunding, unpaid wages which caused unfilled vacancies and sickness absences. All these factors have an impact on the quality of the services provided, which explains the failure to comply with the CQC’s requirements. Additionally, the constant staff shortage raises the stress levels of the remaining social care workers, who may in consequence call in sick, or on the long run, leave their jobs. This constant pressure has now become a considerable cause of workplace sickness.

As mentioned above, low pay is one of the major factors which deters people from joining the social care workforce. Also, a large number of social care workers are migrants. Brexit will therefore have a significant impact on the sector: free movement is due to end in March 2019 and will add another challenge to the crisis faced by the social care sector as a large number of workers are EU nationals. The number of applications for social care jobs from EU nationals has already dropped by 26%.

Another interesting element is that the social care sector is largely female dominated with 80% of the jobs being held by women. Could there be a link between the low salary and the fact that most social care workers are women and/or migrants?

The profession consists of maintaining vulnerable people’s dignity and independence by helping them in their daily lives. It is an honourable and necessary task, however the profession seems to be permanently undervalued: social care workers have left their jobs to work in supermarkets which offers better financial prospects.

Despite the recent public scrutiny on the sector, the voice of the front-line staff does not seem to be heard. Social care workers do not feel adequately appreciated: the notion that the profession is not an esteemed one is a cause of the constant staff shortage. This lack of respect towards the social care workforce could be blamed on the fact that most of the workforce are women or migrants: therefore discrimination can be considered a factor to the crisis faced by the social care sector. Recruitment and retention represent a major issue as employers do not always recruit the right people for caring roles due to the lack of applications and constant staff shortage.

The staff turnover rate in this sector is of 27%. With fewer candidates from the EU, retiring staff and recruitment issues, the social care sector seems to have reached a dead end. To face the recruitment crisis, the profession has to be recognised, appreciated and properly funded. Additionally the pay and training conditions have to be improved. The fact is that the cuts concerning the social care sector had a dramatic effect on the employers, the employees and the people cared after. The councils need to give an appropriate budget to the employers, so that they can decently pay their employees who can then take proper care of their clients.  It appears that no one has taken the social care issue seriously for the past years until it has reached a critical threshold.

However the government has now acknowledged the crisis as the Queen mentioned it in her speech: “My ministers will work to improve social care and will bring forward proposals for consultation” and HMRC is actively scrutinising the sector in order to protect social care workers. This could be the sign that the Government will stop burying its head in the sand and start dealing firmly with this crisis.

By Lily Wilde

Image used under CC courtesy of Y-Lee