Category: Case Law

25
Oct2016

Uber drivers: workers or self-employed?

Uber drivers await tribunal verdict on employment status – workers or self-employed, that is the question?

The ruling over whether Uber the taxi app, is acting unlawfully by considering drivers to be ‘self-employed partners’ rather than ‘workers’ could be delivered this week. Read more

Accruing holidays when off sick

Catching up on some legal news in the GHR office this week and came across the EAT confirming that holiday accrual whilst off sick is only limited to the basis of 20 days holidays and not the full 28 days. The EAT has confirmed that the additional 1.6 weeks’ statutory annual leave cannot be carried over into the next leave year, unless there is a ‘relevant agreement’ to this effect in accordance with Regulation 13A(7).

This has been confirmed through a recent case of Sood Enterprises Ltd v Healy. In this case, Healy, an employee of Sood Enterprises, had a stroke in 2010 and, following a period of sick leave, resigned from his employment on 6 June 2011. Healy was entitled to the minimum 28 days’ annual leave each year under his contract. Because Healy’s illness prevented him from taking all his leave in 2010 and 2011 (he had 17 days accrued and unused from 2010, and 14 days from 2011), he asked for a payment in lieu on termination of his employment. The employer refused, and Healy brought a claim for unpaid wages before an Employment Tribunal. The Employer argued that if Helay was entitled to carry-over his untaken leave from 2010 and be paid for it, then it should be restricted to the four weeks’ basic leave in Regulation 13(1), and not the additional 1.6 weeks under Regulation 13A.

Initially the Tribunal upheld Healy’s claim that he should be allowed to carry forward the full 5.6 weeks (28 days) of annual leave, however it has now been overturned and the EAT have confirmed the 1.6 weeks cannot be carried over.

Impact for Employers

This decision will be welcomed by employers – as they will only need to carry over the minimum 20 days under Regulation 13(1) of the WTR, unless they have specifically agreed to allow for carry-over of the full statutory entitlement of 28 days (or even additional contractual holidays).

However, some employers may choose to carry over the full entitlement. Therefore, going forward it may be beneficial to have this written in policy (attendance at work/managing absence policy) as this will clarify the position you as an employer are taking if the issue were to arise.

Depending on how you have managed this in the past may determine how you manage this going forward, and therefore if you wish to make changes to your policies, then you may well have to consult with your employees regarding these changes.

Contact us to discuss further

Please do contact a member of the team at Gravitate HR on 0131 225 7458 if you wish to discuss this further – or if you would like to make changes to your policy.

Getting Ready For Summer

Getting ready for summer!

With a flurry of holiday requests and the school holidays drawing closer, the lead up to summer can be a very busy time of year. However, there are many ways as an employer you can prepare, and make this summer less stressful for you and your staff. We’ve reported on these in the past, but just a refresher for Summer 2013!

Childcare arrangements during the school holidays can cause great stress for working parents.
Parents have the right to take up to 13 week’s unpaid leave up until their child’s 5th birthday (or 18th birthday for those with a disability). If this is a feasible option, then they might benefit to use some of this during the holidays in order to take care of any childcare issues, and allow them to strike a better balance between their work and family commitments.

Offering childcare vouchers to your employees through a salary sacrifice scheme can also help with some of the burden of childcare costs. Or flexible working is another option. For example, if the role permits, the employee may be able to work from home on certain days.

You might find a surge of holiday requests for the school holidays, with people trying to make the most of the time with their family. You must ensure however that there is always adequate cover so that your business runs smoothly throughout this period. However, where possible, holiday requests should be granted in order to boost staff morale and avoid employee burnout! Ensure you’ve got a clear holiday request procedure so that staff are clear on their expectations in making holiday requests!

You may need to consider taking on temporary staff over the summer period, so make a point of liaising with agencies to ensure that you get the best deal for fees, and that they will be able to produce good quality candidates.

Therefore, there are many options available to support staff during the summer holidays, allowing everyone to enjoy the summer stress free (well as stress free as possible that is!)

Result of first corporate manslaughter case

The first conviction under the Corporate Manslaughter Act was given to a Midlands engineering company. A fine of £385,000 was handed out after an employee fell to his death after working alone and falling down a 3.5 metre deep trench, which collapsed. This fine is compartively low to the statutes guidance, which suggested fines would typically not fall below £0.5m. Corporate Manslaughter and the duty of care was something that I focused on in my Msc dissertation, and whilst I was writing this time last year, the outcome of this case was pending.

Not that we, at Gravitate HR, are suggesting that Corporate Manslaughter could regularly become a risk factor in your day to day management of staff. What we are trying to point out here is that the Corporate Manslaughter Act looks upon the day to day responsibilities of your Senior Management team, and how they organise activities.

The company in question was an SME, who, like many of our clients’ organisational structure means that the Senior Management team is ultimately responsible for the day to day organisation of activities. Criticisms of this particular company, and other similar cases, have been that Directors and business owners failed to monitor the key activities enough. Questions to ask yourself are; do you have a operating policy, is this widely available and implemented, are your senior management bought in?

Whilst this is primarily a health and safety issue, there is of course HR implications which we need to be aware of. During any investigation there may be the requirement for suspension from duties of senior management or Directors, and of course following the outcome of any case, there may be disciplinary sanctions, almost in all cases leading to dismissal.

This article does not seek to identify any particular risk, but primarily to point out that Senior Managers are as much liable in such cases, as Directors and business owners, which might be a common misconception.

Employees & Social Media

Social Media in the Workplace

In a past edition of our Gravitate HR newsletter, I highlighted the growing interest in social media policies in the workplace. Over recent months, there have been reports of sackings across a number of organisations where employees have ‘inappropriately’ posted on their personal networking sites. I thought it would be important to share these with you to explain why social media policies are becoming the norm in employment.

Facebook Comments

A number of Cabin Crew from an international airline were sacked following a series of comments referring to passengers as ‘Chavs’ and to the hygiene on board a plane. Following an investigation, the crew were sacked for ‘bringing the Company into disrepute.’

Facebook Recruitment?

There has been a lot of discussion about whether it is safe and fair to vet potential candidates using social media sites. Whilst we could not say that such a practice is illegal, as the sites are public, unless made private by the individual, it may be frowned upon. For example, a candidate may be able to bring a successful claim for a protected characteristic if they felt that they had been turned down for a job as a result.

Social Media Policies

Having a social media policy in place really recognises the importance of social networking and social media in the workplace. It would ensure that employees are aware of the implications of posting on their comments on their own pages, but also for managers to ensure that best practice in the use of social media in the workplace is monitored. This can be particularly helpful where your organisation has a Twitter account, Blog, LinkedIN page, Facebook page!

Equality & Case Law

Equality Act

The Equality Act is due to become law in October 2010 and it’s aim is to harmonise the raft of discrimination law which is applicable to employment. The protected characteristics are Age, Disability, Gender reassingment, Marriage & Civil partnership, Pregnancy and maternity, race, religion or belief, sex, sexual orientation.

All of the laws carry different definitions of what consitutes discrimination and so the Equality Act seeks to harmonise the terminology.

In summary employees may be able to claim (under any of the protected characteristics):

  • Discrimination by association
  • Discrimination on ground of incorrect perception
  • Third party harassment
  • Claims on joint grounds – maximum of 2. Employees have the ability to claim that they have been discriminated against because of a combination of two protected characteristics, for example an older female would have to prove that she has been disrciminated because of her age, and the fact that she is a female, not try to prove one or the other.
  • Use of pre-employment questionnaires

This has been a welcomed piece of legislation as it the harmionisation of the terms of discrimination, however we recognise that it will cause further headaches for employers seeking to defend a claim. Employers should really think carefully about decisions regarding employees carefully, and that decisions are based on merit. We will post more details on this in the run up to October 2010.

Case Law

We thought we would give a quick update on recent case law, which will and has had several implications on employment practices.

Firstly two key cases which determined the right to legal representation at disciplinary hearings. The statutory right, and our usual advise is that employees are entitled to be accompanied by a trade union representative, or a fellow employee. However two cases, where the nature and allegations of the case where of such a serious nature and that the severity of the consequences were so high that the employee was entitled to legal representation. A Human Rights defence (article 6.1) allowing the employee to a fair hearing, coupled with the severity of the consequences, a teacher losing their ability to work in the profession again, was deemed to be reasonable.

In a similar case, where the severity was deemed to be career-threatening disciplinary charges, the employee was allowed, following an appeal.

Although both of these cases were public sector employers, the implications are far reaching, in that those private sector organisations regulated by external bodies, where the implications of the case has serious consequences, may be wise to consider allowing legal representation, where requested.

To follow further details on the case, please see G v The Governors of X School and Kulkarni v Milton Keynes Hospital NHS Foundation Trust.

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