The end of tribunal fees as we know it?

Has winter come for tribunal fees?

Issue

In 2013 the government introduced fees of up to £1200 for individuals wishing to bring tribunal claims in an effort to reduce the number of weak or unmerited claims bring brought.

Supreme Court Decision

After two high court decisions and one court of appeal decision, the UK’s most senior court has today ruled that the government was acting unlawfully and outside of its powers when it introduced fees at the current levels.  The court stated that it prevented access to justice and also that it was indirectly discriminatory against women because a higher number of women would bring discrimination claims

What happens now?

No further fees can be charged by the tribunal service in employment cases until a replacement scheme is announced.  For those who have already paid fees, the Ministry of Justice has confirmed that these will be reimbursed.

What we can do for you

Employees will no longer have to pay a fee to lodge their claim and this is likely to lead to an increase in claims as there is no longer the deterrent of high fees.  We can assist both employees and employers in any tribunal cases.

 

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

Holiday pay and commission – the final decision……..

Holiday pay and commission – the final decision……..

Issue

The issue of holiday pay and commission has had a long history through the courts and we now have the latest instalment in this long running saga.

Facts

British Gas have a sales force which are paid a basic salary only along with commission on sales they achieve.  In Mr Lock’s case, his average commission made up about 60% of his salary.  When he took his holiday however he was paid only his basic pay.  Mr Lock brought a tribunal claim for his outstanding holiday pay.

The case has been in the courts for some time now and its significance is that it challenges whether British law (i.e. the Working Time Regulations 1998) can be interpreted purposively so as to give effect to EU case law which requires holiday pay to include what individuals consider to be normal elements of pay, such as results based commission and non-guaranteed overtime.

Supreme Court Decision

Initially, the Court of Appeal upheld the conclusion of the EAT and has held that holiday pay must include an estimation of results based commission when calculating holiday pay.  Leave to appeal was sought but on 1 March 2017 this was refused by the Supreme Court.

How does this affect employers?

We now know that representative results-based commission and non-guaranteed overtime (overtime which workers are contractually obligated to perform) must be included in the calculation of holiday for the first four weeks of holiday under the Working Time Regulations.

What we can do for you

This right applies now and so employers need to be aware that employees may start to question their holiday pay.  The issue of truly voluntary overtime remains unclear for the moment.

We can advise both employers and employees on where they stand legally.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

Underpayment of Salary and Leaky Taps

February Update – Underpayment of Salary and Leaky Taps

There are two main developments this month.

Increase to National Living Wage/National Minimum Wage

The new minimum wage rates from 1 April 2017 will be:
• £7.50 per hour – 25 yrs old and over
• £7.05 per hour – 21-24 yrs old
• £5.60 per hour – 18-20 yrs old
• £4.05 per hour – 16-17 yrs old
• £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

You will want to make sure you are not on the government’s list as this month they named and shamed 360 employers who had underpaid their staff. This included Debenhams, 84 employers in the hospitality industry and another 50 in the retail sector.

Employee Status

There has been another decision regarding employment status and whilst it did not break any new legal ground, it is a useful wake up call to those employers who regularly use self-employed individuals as part of their work force.

Background

Mr Smith was a plumber working for Pimlico Plumbers and had done so for nearly six years. When matters ended, he tried to claim unfair dismissal, discrimination and holiday pay.

The tribunal found he was not an employee but he was a worker and so was entitled to protection from discrimination and holiday pay. The Court of Appeal upheld the decision

How does this affect employers?

The Court of Appeal held that there was clear obligation to provide personal service and the contract did not include a right of substitution. They also held that Pimlico exercised a high degree of control and there were also restrictions in the contract stopping Mr Smith from working as a plumber anywhere in Greater London for three months.

It is important to note that each case will be case sensitive and will turn on the specific arrangements in place. Nevertheless, those employers who rely on self-employed individuals will need to watch developments carefully, particularly as there are a growing number of claims in this area which attract a fair amount of negative publicity for the employer.

There is a risk of large financial exposure for misclassifying a worker as self-employed in the areas of holiday pay, pension and sick pay.

What we can do for you

It will be important not to make any hasty decisions as an employer. However, self-employed individuals may begin to challenge what their status is and caution needs to be exercised by both sides in such an arrangement.

We can advise both individuals and employers on what issues to be aware of and whether the ‘label’ put on an arrangement is correct or not. This case shows that a tribunal will be happy to look behind the title given to an arrangement to establish its true nature.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

Subject Access Requests

Can I have my data – demystifying subject access requests

Demystifying Subject Access Requests

Issue

From time to time, companies will receive requests from members of staff, job applicants or former employees for access to their personal data.  Under the Data Protection Act, these are known as subject access requests.

What should a company be aware of?

There are strict legal requirements that companies need to comply with regarding such requests and the obligations extend beyond personal data held by a company as an employer to personal data held on the company’s behalf by a third party.

Frequently Asked Questions

Q. Does a Subject Access Request (“SAR”) need to be in writing?

A. Yes, an SAR must be made in writing. Any written request by an individual asking for their personal information is an SAR, whether it refers to   the Data Protection Act or not.

Q. Does a fee have to be paid first of all?

A. An employer is entitled to await payment of any requested fee (maximum of £10) before handling an SAR.

Q. Can an employer ask for more information before responding to a subject access request?

A. An employer can ask for information to judge whether the person making the request is the person to whom the personal data relates and also seek information they reasonably need to find the personal data covered by the request.

Q. What if a company cannot access the information that has been requested?

A. If an employer does not have access to the requested information or it does not exist, the applicant should be informed in writing as soon as possible.

Q. Can an employer alter requested information?

A. No, an employer cannot make changes to information, even if the information sought is inaccurate or embarrassing.

Q. What if it is time consuming or expensive?

A. Dealing with a SAR can be an onerous task and under the Data Protection Act, an employer is not obliged to provide a copy of the information in permanent form if it would involve disproportionate effort to do so. ‘Disproportionate’ is not defined and so there may be some limited scope for an employer to argue that complying with the request would outweigh the individual’s right of access. However, this does not mean an employer can refuse to deal with a SAR request, only that they may argue about the expense involved in supplying the data.  Therefore, relying on this exception is likely to be relevant for exceptional cases only.

What we can do for you?

Dealing with subject access requests can be difficult and time consuming.  We can help you with the process should you receive such a request, particularly if litigation is a possibility.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

 

Employee Employment Law Services

Uber and Out – what next for worker status?

Uber and Out – what happens next re worker status

Issue

Uber hit the headlines because of test cases brought by two drivers regarding their status – were they workers or self-employed individuals?

Facts

Uber is a San Francisco based company which has around 40,000 drivers in England and Wales.  With union support, two test cases were brought by two drivers who claimed that they should be classed as workers rather than self-employed.

Decision

On Friday, the London Employment tribunal ruled that Uber drivers were in fact workers and therefore will be entitled to holiday pay, national minimum wage (or national living wage) and paid rest breaks.  In the ruling from the tribunal, Uber were accused of “resorting in its documentation to fictions, twisted language and even brand new terminology”.

How does this affect employers?

Uber have said that they will appeal this decision but nevertheless this case will be of concern to employers as it is potentially a ground breaking decision.  It will impact not only on thousands of Uber drivers but is potentially just the tip of the iceberg as many thousands of people are employed on a similar basis in different sectors.  It may well threaten other new business models like Deliveroo and Amazon Prime Now.

It is however important to note that each case will be case sensitive and will turn on the specific arrangements in place.  Nevertheless, those employers who rely on self-employed individuals will need to watch developments carefully.

Is this really a victory for low paid workers trapped in insecure jobs or the sacrifice of the flexibility that self-employment provides to many individuals?  Many Uber drivers were happy to be self employed as they enjoyed being their own boss, choosing their level of commitment and the flexibility this provided them.

The government has of course already asked Matthew Taylor to conduct an independent review into modern working practices and now employment practices may need to change in order to keep pace with modern business models.

What we can do for you

It will be important not to make any hasty decisions as an employer.  However, self-employed individuals may begin to challenge what their status is and caution needs to be exercised by both sides in such an arrangement.

We can advise both individuals and employers on what issues to be aware of and whether the ‘label’ put on an arrangement is correct or not.  This case shows that a tribunal will be happy to look behind the title given to an arrangement to establish its true nature.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

Man jumping up, out of the sea

Holiday pay and commision – the next chapter

Holiday pay and commission – the next chapter

Issue

The issue of holiday pay and commission has had a long history through the courts and on Friday, the Court of Appeal handed down its judgement in the latest episode.

Facts

British Gas have a sales force which are paid a basic salary only along with commission on sales they achieve.  In Mr Lock’s case, his average commission made up about 60% of his salary.  When he took his holiday however he was paid only his basic pay.  Mr Lock brought a tribunal claim for his outstanding holiday pay.

The case has been in the courts for some time now and its significance is that it challenges whether British law (i.e. the Working Time Regulations 1998) can be interpreted purposively so as to give effect to EU case law which requires holiday pay to include what individuals consider to be normal elements of pay, such as results based commission and overtime.

Decision

The Court of Appeal upheld the conclusion of the EAT and has held that holiday pay must include an estimation of results based commission when calculating holiday pay.

How does this affect employers?

This decision will be of concern to employers.  The Court of Appeal was persuaded on the following points:

  • That the Working Time Regulations were only implemented to give effect to the Working Time Directive; and
  • That the UK government must have intended the Working Time Regulations to fulfil the requirements of the Working Time Directive, even if some of the obligations (such as including overtime and commission in holiday pay calculations) only became clear several years later.

Of course, in the light of Brexit, it will be interesting to see what the government decide employees are entitled to now that the UK will be leaving the UK.

What we can do for you

It will be important not to make any hasty decisions as an employer.  However, employers may now receive some enquiries from the employees as to whether their holiday pay is correct.  We can support both employees and employers in this regard.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

Shared Parental Leave

Shared Parental Leave – where are we 18 months later?

Shared Parental Leave – Where are we 18 months later?

Issue

Shared Parental Leave was introduced on 5 April 2015.  The aim was to allow both parents the option of sharing the traditional year’s maternity leave between themselves.  Has it been a revolution or is the situation relatively unchanged?

What is the take up of Shared Parental Leave?

Take up of this new entitlement has been relatively poor and, whilst it is still early days, there does not appear to have been much change in work place attitudes.  In the majority of families, it is still the mums left holding the baby.

Recent research indicates the following:

  • In 40 % of organisations, no man had taken up Shared Parental Leave.
  • Only 3000 couples took Shared Parental Leave in the first three months of 2016. This equates to just 2% of those families in which the mother took maternity leave.  This is at the lower end of the government’s forecast of a take up rate of between 2% – 8%.

What is the reason for this low uptake?

Very few employers offer enhanced parental pay schemes.  This means that the father would only be paid at the statutory rate which is currently £139.58 per week.  For many families this is not financially viable.

However, money may not be the only answer.  In Sweden, shared parental leave was introduced in 1974 – 20 years later, mothers still take 90% of the leave.  So Sweden then introduced a quota of days that the father had to take – this has increased from 30 to 90 days recently and if the time is not taken it is lost.  This has forced a change in culture where it is seen as ‘normal’ for fathers to take time off work to be with their children.

So will we see parliament introduce an exclusive right for fathers to take leave?

Is there anything I should do?

The aim of introduction of shared parental leave was to try and change society’s view that it is the mother who will always be the prime carer.

Employers may want to review their policies and the uptake of shared parental leave in their company.  Employers should also be aware that recently a Glasgow tribunal in the case of Snell v Network Rail awarded a new father almost £30,000 for sex discrimination as his employer offered enhanced contractual shared parental pay for mothers/primary adopters but not to fathers or mothers’/primary adopters’ partners.  So whilst employers need to be aware of this case, it is important to point out that this case involved how both parents were able to access the same enhanced shared parental pay scheme – this case does not address whether it is discriminatory to offer enhanced pay for mothers on maternity leave but only offer statutory pay to both mothers and fathers on shared parental leave.  The government guidance is still that there is no legal requirement to offer corresponding enhancements to shared parental pay as enhanced maternity pay falls within the pregnancy/childbirth exception.

What we can do for you

We can help you review your current shared parental leave policy to make sure it is correct and up to date.  We can advise you on the more difficult issues of whether enhanced maternity benefits should be extended to those taking shared parental leave and how to deal with challenges of requests for blocks of discontinuous leave.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Aeris Employment Law Ltd will be pleased to discuss resolutions to specific legal concerns you may have.

Clear and Practical Legal Advice

What is changing in employment law in October 2016

What is changing in employment Law in October 2016

There is not a great deal changing this October.  The only substantive change happening this month is the increase to the national minimum wage rates.  There are however other changes coming along the tracks that employers should be aware of:

  1. National Minimum Wage

From 1 October 2016 the hourly national minimum wage rates will be as follows:

  • The National Living Wage (workers aged 25 and above) will remain at £7.20 per hour;
  • The standard adult rate (workers aged 21-24) – an increase from £6.70 to £6.95;
  • The development rate (workers aged 18-20) – an increase from £5.30 to £5.55;
  • The young worker’s rate (workers aged 16-17 who are not apprentices) – an increase from £3.70 to £4.00;
  • The apprenticeship rate – an increase from £3.30 to £3.40.

This is the last time that wage rates will increase in the autumn. From April 2017 all of the rates, including the National Living Wage, will be raised at the same time.  There is no indication what the new rate for the National Living Wage will be next April but current indications are that it will be between £7.60 – £7.65

  1. Gender Pay Gap reporting.

Companies with at least 250 employees will have to publish an annual report showing the overall gender pay gap in their organisation.  Calculations will have to be shown for both mean and median hourly pay over a specific pay period (which is likely to be the employer’s usual pay cycle).

Information will also have to be given regarding any ‘gender bonus gap’ as well over a 12-month period.

Final regulations are likely to commence in April 2017.  So we can expect the first pay reports to start filtering through in April 2018.

  1. Public Sector Payments

A new cap is likely to come into force soon limiting public sector exit payments to £95,000.  The government wants to end six figure public sector exit payments which between 2011 and 2014 was around £6.5 billion.

  1. Apprenticeship Levy

In spring 2017, the way the government funds apprenticeships in England will change.  The levy will require all employers in the UK with a pay bill of £3 million each year to make an investment in apprenticeships.

The levy will be charged at the rate of 0.5% of an employer’s annual pay bill.  Employers will receive a levy allowance of £15,000 per year to offset against the levy that they pay.  The levy will be paid to HMRC through the PAYE process.

How we can help

Employment law is always changing. Aeris Employment Law can help keep you up-to-date with the various changes and advise you on what steps you may need to make to your own procedures to take account of the changes.

For further information please contact Karin Henson at [email protected]

Are your heels high enough

Are your heels high enough?

Employee sent home for refusing to wear heels – but should she have been asked in the first place?

Issue

A young female employee was working via an agency Portico as a receptionist for a large firm of accountants, PwC, in London when she was asked by a supervisor to go and buy some 2 – 4 inch heels as her flat shoes were not appropriate work attire.

Why did this happen?

When the employee expressed her confusion as to why she was being asked to do this, she was told that flat shoes were not part of the agency’s dress code for women. She was sent home without pay. When she pointed out that her male colleagues were allowed to wear flat shoes, she says she was laughed at.

What happened next?

The employee set up a petition to try and make it illegal for companies to enforce heel wearing for female employees. Her petition is gaining momentum and if it passes 100,000 signatures, the issue is likely to be debated in the Houses of Parliament.

How does this affect you?

This event has gained national attention and various questions are being raised – is this right, is it discriminatory, was it just part of a dress code, if she was sitting behind a desk did it really matter what was on her feet, what if she needed to wear flat shoes for a medical condition?

These are all interesting questions and illustrate the friction that can occur when a business wants to portray a certain image with perhaps not thinking through its requirements in detail.

What we can do for you?

Dress codes are important and have their place in most businesses. However what is important it to ensure that any requirements are fair and do not discriminate against certain groups. We can help review dress code policies and advise whether there are any areas which could cause problems and perhaps negative publicity.

 

 

 

Data Protection Regulations

New Data Protection Regulations – change is coming

Data Protection – a change on the horizon?

Issue

At the end of last week, after three years of discussions, the EU Parliament voted in favour of new EU data protection regulation.  The General Data Protection Regulation (GDPR) will replace the Data Protection Directive 1995 from 2018.  Once the translation process is complete (likely in two-three months’ time), it will be published in the EU Official Journal, and come into force 2 years after that.

A 2 year run-in period from now seems like a long time away but the change that this regulation will bring about could be extensive

What you need to know

  •  the GDPR is a much more prescriptive and expansive set of obligations, which will bring with it greater restrictions on staff data-processing overall and less flexibility;
  • it will catch data controllers and processors outside of the EU; 
  • In certain circumstances, companies may need to appoint their own data protection officers, particularly those involved in processing of personal data as part of their core activities which involve regular or systematic monitoring or processing on a large scale of sensitive personal data (e.g. related to health, racial or ethnic origin) and personal data relating to criminal convictions and offences;
  • A data subject’s consent must be freely given, specific, informed and unambiguous.  Companies will have to show that consent was given and more detail will have to be provided;
  • The GDPR sets much tighter standards upon the nature of data employers can retain and for how long. Record retention periods will need to be identified.

Penalties

There will be a tiered approach to penalties and depending on the breach, maximum fines could be between 2% – 4% of an undertaking’s total worldwide annual turnover in the previous year.

What we can do for you

Companies will need to be aware of these changes and alive to issues such as the fact that Subject Access Requests may become more frequent but also more difficult to administer, (as the ability to charge a fee is removed)’ the timescales for responses become more rigid and some of the exemptions commonly relied upon currently disappear.

Handling of sensitive personal data is also likely to be more difficult –especially data relating to criminal records.  Record keeping will also increase significantly to ensure compliance with the GDPR.

We can help familiarise you with the GDPR and the obligations that may apply to you and how to plan for the introduction of this new regime.