Government reforms (2): Good work plan (response to Taylor Review) updated

What do we already know?

The Taylor Review of Modern Working Practices (‘the Taylor Review’), made detailed recommendations for reform of UK employment law in respect of those who are not engaged as traditional employees, both in the “gig economy” and elsewhere.  For further detail on the background of this Review please see our updates here.

We updated you in our February 2018 Newsletter Government reforms (2): Employment status – Government response to the Taylor review, that the Government had published its response to the Taylor Review, which was the ‘Good Work’ plan in which the Government set out its plans on taking forward the Taylor Review proposals.

At this time, the Government also launched four consultations to seek views on the appropriate approach to implementation:

  • Employment status;
  • Agency worker recommendations;
  • Increasing transparency in the labour market; and
  • Enforcement of employment rights recommendations.

 

What’s new?

The Government has updated its ‘Good Work Plan’, available here.  The Plan draws on the feedback to its consultations.  There is no timetable yet for the majority of the changes and no legislation is included in the Plan. The legislation to implement some of these changes will need to be closely examined when it is eventually published, but these proposals will make the next couple of years an interesting time for employers.

The headlines of the Good Work Plan are:

  • Continuity of employment: The Government has taken up the Taylor Review suggestion that continuity of employment should not be broken by gaps between work of up to four weeks. This is an increase from the current one week.
  • Employment status: The nature of the employment relationship is key to determining an individual’s employment rights, as employees, workers and the self-employed have different rights and protections. The Government has committed to legislate to ‘improve the clarity of the employment status tests, reflecting the reality of modern working relationships’; and to bring forward detailed proposals on aligning the employment status frameworks for employment rights and tax purposes.

Any clarification of employment status would be very welcome but the Good Work Plan does not go into any detail on what the new aligned test might look like. The Taylor Review recommended that the employment status test should place more emphasis on control and less on the (often rarely exercised) right of substitution, something discussed in the consultation which took place earlier in the year.

  • Zero-hours: There has been widespread criticism of the perceived exploitation of those on zero-hours contracts. The Government’s plan is for a new right to request a more fixed pattern of work after 26 weeks’ service. They might, for example, ask for certainty around the minimum number of weekly working hours; or for fixed days on which they could be asked to work. No details have been provided as to what procedural or enforcement mechanism might apply. This raises a number of obvious issues:
    • If the right is merely to request a new pattern, how effective will that be in practice?
    • If the right is limited to those with 26 weeks’ service, is that adequate to assist those with short-term flexible arrangements?
  • Agency workers (with effect from 6 April 2020): Agency workers can currently exchange their right to be paid equally to permanent counterparts if they enter into a contract guaranteeing pay between assignments (the so-called Swedish derogation). In response to evidence of the derogation being abused by some employers, legislation is to be brought forward to repeal it and ban the use of contracts which withhold agency workers’ equal pay rights.

 

In addition, all employment businesses are going to be required to provide agency workers with a Key Facts Page. Specific information will have to be given on the type of contract, pay and deductions.

  • Holiday pay (with effect from 6 April 2020): The Taylor Review highlighted that both individuals and employers would benefit from more transparency over holiday pay. To do this the Government plans to launch an awareness campaign and introduce new guidance. Also, in response to difficulties experienced by atypical workers in calculating holiday entitlement, legislation will be introduced to extend the holiday pay reference period from 12 to 52 weeks.
  • Written statements (with effect from 6 April 2020): At the moment, after having worked for a month, employees have a right to a written statement of certain employment particulars (which must be provided within two months). The Government is going to legislate to extend the right to a written statement to all workers, as well as employees, as a day one right. More information will have to be provided than is currently required, including details of all types of paid leave (e.g. maternity and paternity leave); and the duration and conditions of any probationary period.
  • Works Councils: Employers are currently required to set up a works council where 10 percent or more of the workforce requests this. The Government plans to lower the threshold from 10 to two percent of the workforce, making it easier for a minority of workers to insist on a works council.
  • Tips: The Government will legislate to ban employers from making deductions from staff tips.
  • Sanctions and enforcement: In an effort to make the system for enforcing employment rights clearer, fairer and more efficient it is proposed that a single enforcement body will come into force in early 2019 to better protect vulnerable workers; new powers will be created to allow investigations by the Employment Agency Standards Inspectorate into umbrella companies (particularly where it is suspected that agency workers have received inadequate pay); and state enforcement of workers’ holiday pay rights will be introduced with payment of arrears backed up by financial penalties (similar to the enforcement of the national minimum wage).

Also, as mentioned above the hardly ever used aggravated breach penalty will be increased from £5,000 to £20,000 in April 2019 and sanctions imposed on employers who have lost a second Tribunal case on similar grounds to a previous claim. The Government also plans to ‘name and shame’ employers that fail to pay Tribunal awards.

 

Government reforms (3): BREXIT – The final chapter?

1. POST-BREXIT IMMIGRATION POLICY

The Home Office has published the White Paper on its post-Brexit immigration policy, available here.  The White Paper sets out the proposed immigration regime that would apply from 1 January 2021, whether the UK leaves the EU with a deal or no deal.

The starting point is that EU free movement rules will end and the same rules which apply to non-EU nationals will apply to EU nationals from January 2021. This will fundamentally mean businesses being required to employ EU nationals under the sponsored Tier 2 visa route for skilled work.  However, there will be some significant changes to the rules and requirements for sponsorship, given their wider scope. Some of the key highlights for employers from the proposals are:

  • the annual limit on the number of sponsored skilled work visas (Tier 2 General visas) will be removed “…many employers will be encouraging EU national staff to apply as soon as they can, in order to avoid delays…”;
  • employers would no longer be required to carry out a resident labour market test in order to obtain a sponsored skilled work visa (Tier 2 General visa);
  • employers would require a sponsor licence to employ both EU and non-EU nationals on sponsored skilled work visas but the Government is considering a ‘tiered’ system of sponsorship to ease the burden on employers who only require a licence for a small number of vacancies;
  • the skill level required for sponsored skilled work visas (Tier 2 General visas) will be lowered – currently these are for degree level or managerial roles only (although there would be no lowering of the current skill level required for intra company transfers from linked offices outside the UK);
  • the Government will consult with businesses about reducing the current minimum salary threshold of £30,000 for sponsored skilled work visas (Tier 2 General visas);
  • the current two-year Tier 5 (Youth Mobility) visa route is to be expanded to allow for a new UK-EU Youth Mobility Scheme;
  • visitors from EU27 countries would not require a visit visa in advance of travel, including business travel, and would be able to use e-gates for quick entry;
  • international students would be granted a six-month period to stay and work in the UK on completion of a master’s or bachelor’s degree in the UK; and
  • there will be no dedicated route for unskilled labour but, for a transitional period after Brexit, there will be a 12-month visa route for nationals of any skill level from specified low risk countries (with no option to extend, switch into other routes or bring dependants).

While the changes will be welcomed by many employers, the lack of any dedicated route for unskilled labour may present challenges for employers in sectors such as hospitality, agriculture and manufacturing.

 

2. GOVERNMENT ONLINE TOOL TO PREPARE FOR BREXIT

The Government has launched a tool to assist businesses in their preparations for the UK leaving the EU, available here. The purpose of the tool is to help businesses find out what they should be doing to prepare for Brexit, what changes are occurring in their industry sector and information on specific rules and regulations.

The tool asks users seven questions about the business, such as industry sector,  extent of any cross-border trade, employees in other European countries and use of personal data. Users are then directed to previously published guidance relevant to their particular circumstances.

 

3. DATA PROTECTION AND BREXIT

The Department for Digital, Culture, Media and Sport (DCMS)

The Department for Digital, Culture, Media and Sport (DCMS) has published guidance (available here) relating to its proposals on how the UK data protection regime will work in a no-deal scenario post-Brexit.

DCMS intends to incorporate the regime under the General Data Protection Regulation into UK domestic law by making appropriate changes to the Data Protection Act 2018 (DPA 2018).

It is the Government’s intention that the fundamental principles, obligations and rights that organisations and data subjects have become familiar with under the GDPR will stay the same, so that the UK data protection framework continues to ‘operate effectively’ post-Brexit.

The Information Commissioner’s Office (ICO)

The Information Commissioner’s Office (ICO) has published data protection guidance (available here) to help businesses, particularly small and medium-sized enterprises prepare for a no-deal Brexit.

The guidance includes a ‘Six Steps to Take’ guide on the effects of data protection if there’s no deal and a general overview of data protection rights post-Brexit in the form of FAQs.

 

4. GUIDANCE ON ‘NO DEAL’

The Department for Exiting the European Union

The Department for Exiting the European Union has published a policy paper, available here, outlining the Government’s plans for protecting citizens’ rights in the event that the UK leaves the EU without a deal in place.

The paper states that in the event of no deal that EU employees resident in the UK by 29 March 2019 will be able to work and live here. The policy paper states that only those EEA citizens resident in the UK by 29 March 2019 would be able to apply for settled or pre-settled status. They would have to do so by 31 December 2020, rather than by the 30 June 2021 deadline that would apply if a formal implementation period is agreed.

The policy paper also calls upon the EU Member States to take similar steps to reassure UK nationals in the EU that they can stay and have their rights protected in the no deal scenario.

The Department of Work and Pensions

The Department of Work and Pensions (DWP) has published guidance (available here) explaining the benefits and pension rights of EU citizens in the UK if no deal is agreed before 29 March 2019.

The clarifications provided by the DWP are:

  • EU citizens and their families will still be able to continue receiving UK benefits on broadly the same terms as now;
  • EU citizens who have private pensions in the UK will still be able to transfer them abroad unencumbered by legislation; and
  • EU citizens will still be able to transfer benefits abroad as long as the benefit is already in payment to recipients residing in EU counties and if those recipients still meet the entitlement criteria. However, the entitlement may change in the future if domestic policy for UK nationals change.

Regarding EU citizens who move to the UK after 29 March 2019, the DWP noted that options were still being considered on whether these citizens could claim benefits if the UK leaves the EU without a deal.

 

Case update (1): Employment status – UBER drivers confirmed ‘workers’

We updated you in our November 2017 Newsletter Case update (1): Uber drivers are ‘workers’ on the EAT’s decision that drivers who provide services to the online taxi firm, Uber, are ‘workers’, rather than self-employed.

Uber appealed against the EAT decision and the Court of Appeal has now published its decision as explained below.

Summary: When Uber drivers have the Uber app switched on, does Uber have sufficient control over the drivers to mean that they are ‘workers’ and entitled to employment rights?

Yes, says the Court of Appeal in Uber BV v Aslam and others available here.

Facts:  Uber operates a platform connecting passengers to thousands of drivers through a Smartphone application. The application allows passengers to request to be picked up from a certain location and they pay Uber for the journey, Uber in turn pays the drivers.

Uber engages its drivers as self-employed contractors.  Two of its drivers issued a Tribunal claim on the basis that Uber were acting unlawfully by refusing to recognise their status as workers.  They claimed that Uber was failing to provide them with the correct rights and protections, such as paid annual leave and the national minimum wage.

The Tribunal decided that the drivers were workers.  Despite Uber having a carefully crafted contract in place setting the drivers up as self-employed, the Tribunal identified a number of significant indicators that the drivers were ‘workers’, including that Uber:

  • interviews and recruits drivers;
  • controls key information as to the passenger’s identity and destination which is not shared with the driver;
  • requires drivers to accept a high number of trips (with forced logging-off if three consecutive requests were not accepted within a ten-second time frame);
  • imposes conditions on drivers, instructing them on how to do their work;
  • fixes the fares; and
  • controls the drivers in the performance of their duties.

Uber appealed to the EAT.  The EAT upheld the Tribunal’s finding and held that Uber drivers are considered to be workers when:

  • the drivers had the app switched on;
  • they were within the territory in which they were authorised to work; and
  • they were able and willing to accept assignments.

Uber appealed against the EAT’s decision to the Court of Appeal.

The Court of Appeal (by a majority, rather than unanimously) upheld the previous decisions that:

  • the drivers were workers; and
  • the drivers were workers at all times when they had the relevant app switched on.

On the first point, although the written contractual terms said that Uber only acted as an intermediary, this did not reflect the practical reality of the relationship. A court or Tribunal can disregard the terms of any documents generated by the employer if they do not reflect the reality of what is occurring on the ground. The facts found by the Tribunal were not consistent with Uber’s arguments. For example, the requirement to accept a high number of trips, the enforced logging-off of drivers who did not comply, and the way in which the ratings system operated as a performance/disciplinary procedure were all significant in showing Uber’s control of the drivers.

On the second point, the majority (it was not unanimous) found this issue difficult (like the EAT) but decided the Tribunal had been entitled to reach the conclusion it did. The judges relied in particular on the high level of trip acceptances required from drivers, and the penalty of being logged off if three consecutive requests were not accepted within a ten-second time frame. Doubt arose from the fact that a driver could have other rival apps switched on at the same time, in which case it was arguable that he/she was not at Uber’s disposal until having accepted a trip. Nonetheless, the majority upheld the Tribunal’s decision on this point.

Implications:  This decision, although fact specific, does provide useful guidance on worker status. The majority judgment emphasises that written terms cannot be used to avoid statutory protection of workers, especially where the relevant terms are standard and non-negotiable and the parties are in an unequal bargaining position. All of the circumstances must be examined, and Tribunals should take a “realistic and worldly-wise”, “sensible and robust” approach to the determination of what the true position is.

The dissenting judge went further to say that where there is inadequate protection for staff, especially where one party has superior bargaining power over the other, “the right answer is to amend the legislation” and this is particularly relevant given the Government’s proposals set out in its recent ‘Good Works Plan’ (see Government reforms (2): Good Work Plan (response to Taylor Review) updated above).

However, Uber has permission to appeal to the Supreme Court and the disagreement between the Court of Appeal judges suggests that there are still arguments to be had in this case.  The Supreme Court’s decision is not a foregone conclusion so watch this space for further updates…

 

 

Case update (2): Disabilty discrimination – Enhanced pensions

What do we already know?

We updated you in our August 2017 Newsletter Case update (1) Disability discrimination – unfavourable advantageous treatment on the Court of Appeal’s decision in Williams v The Trustees of Swansea University Pension & Assurance Scheme and another.

In this case the employee argued that because his enhanced pension was based on part-time salary rather than full-time, this was to his disadvantage and so amounted to “unfavourable” and discriminatory treatment.

The Court of Appeal did not uphold the employee’s claim, but rather found that the employee had been treated advantageously in comparison to his non-disabled colleagues.  This was because the only employees entitled to retire early and to receive an enhanced pension, were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010.  Further, a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has not been treated “unfavourably” or discriminated against.

The employee appealed to the Supreme Court.

What’s new?

The Supreme Court has upheld the Court of Appeal’s above decision.

Summary:  Was a disabled employee treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary?

No, says the Supreme Court in Williams v The Trustees of Swansea University Pension and Assurance Scheme, available here.

Facts:  Mr Williams, the employee, was disabled. He suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. He reduced his hours with his employer, Swansea University, in order to better cope with his condition. His pay was reduced accordingly. After his condition deteriorated further he took ill-health retirement at the age of 38.

Under the rules of Swansea University’s Pension Scheme, Mr Williams was allowed to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. His benefits were therefore significantly enhanced, in that he was treated as though he had accrued nearly twenty nine years further pensionable service.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. This section allows for claims of “discrimination arising from disability” which occur where the employee is treated “unfavourably” because of something arising in consequence of the employee’s disability, and does not require comparison with an identifiable comparator (whether actual or hypothetical).

Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits for the period after he took ill-health retirement amounted to “unfavourable” treatment and therefore unlawful discrimination. The Tribunal upheld his claim.

The University successfully appealed to the EAT. Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT, finding that:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • the simple fact that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment. If it were, then it would be difficult to see why an employer would not also have to justify the pay it was giving to a disabled claimant who had never been able to work full-time and therefore had applied for and secured a part-time job; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”. Were that so, it would call into question the terms of pension schemes or insurance contracts which confer increased benefits in respect of particular disabilities, such as those caused by injuries sustained at work, or which make special provision for disability caused by a particular disease, such as cancer.

Mr Williams appealed to the Supreme Court.

The Supreme Court upheld the Court of Appeal’s decision.  In particular it held that it was appropriate in this case to consider:

  • What was the relevant treatment?
  • Was this treatment unfavourable to Mr Williams?

In this case, the relevant treatment was the award of a pension and there was nothing intrinsically ‘unfavourable’ or disadvantageous about that.  If Mr Williams was not disabled, he would not be entitled to an ill-health early retirement pension. Instead, he would be expected to work until the normal pension age before he would qualify. As a result he was being treated more favourably than someone without a disability by being allowed to take his pension early so this could not be said to amount to unfavourable treatment.

Implications: This is a welcome decision for employers and trustees whose pension schemes provide for ill-health early retirement.  It reinforces the view that where an employee has reduced their hours prior to any application to take ill-health early retirement, the employee is only entitled to be compensated at the rate of pay they were receiving at that time. Whilst this might seem harsh on the employee, they are receiving a significant benefit by being permitted to draw a pension early, on what will usually be favourable terms i.e. the ‘net’ impact of the ill-health criteria was to enhance Mr Williams’ position rather than acting to his detriment.

Government reforms (1): New Year, New Law!

Building on our new year Blog on 2019 Hot 10 Topics, we give you the dates of the most important employment law changes this year that we know of so far.   We’re sure to be covering many of these events in more detail in our Newsflashes and Newsletters so watch this space…

 

21 January 2019

Right to Work

Opening of EU settlement scheme trial (more information here).

 

28 January 2019

Immigration – illegal working

New changes will allow organisations to rely on online checks to establish a statutory excuse against liability for a civil penalty (in the event that they are found to be employing illegal workers), permitting short birth or adoption certificates to be relied upon when evidencing an individual’s right to work and bringing into force a revised Code of Practice. (For more information see here).

 

29 March 2019

Brexit

Proposed date the UK exits the EU.

 

30 March 2019

Gender Pay Gap reporting

Public sector employers to report their Gender pay gap before this

date (with a snapshot date of 31 March 2018).

 

1 April 2019

Increase in National Living and Minimum Wage

The new rates are as follows:

  • Age 25 and over:  National Living wage increase from £7.83 to £8.21 per hour;
  • Age 21 to 24 (inclusive): increase from £7.38 to £7.70 per hour;
  • Age 18 to 20 (inclusive): increase from £5.90 to £6.15 per hour;
  • Age 16 or 17 (inclusive): increase from £4.20 to £4.35 per hour; and
  • Apprentice rate:  increase from £3.70 to £3.90 per hour.

Changes to auto enrolment rates

The minimum contribution rates will increase to 3% for employers and 5% for employees.

 

4 April 2019

Gender pay gap reports due

Date by which all applicable private sector employers must publish their gender pay gap data for the snapshot date of 5 April 2018.

The report must be published on the Government website and a searchable UK website that is accessible to employees and the public.

 

6 April 2019

Itemised pay slips

The right to receive a written itemised payslip will apply to workers as well as employees.  The payslips of workers and employees paid by the hour must clearly set out the number of hours for which they have been paid.

All payslips must include:

  • the gross amount of the wages or salary;
  • net amount of wages or salary payable;
  • amounts of any variable or fixed deductions, and the purposes for which they are made; and
  • total number of variable hours worked (when workers and employees get a different wage depending on the hours they have worked).

Government guidance on this new right is available here.

 

6 April 2019

Increases in statutory payments and Tribunal awards

The maximum compensatory award for unfair dismissals taking effect from 6 April 2019 will increase from its current rate of £83,682 but the amount of increase has not yet been announced.

A week’s pay (used to calculate statutory redundancy payments and the basic award in unfair dismissal claims) will also increase from its current rate of £508 (gross) but the amount of increase has not been announced yet.

 

6 April 2019

Increase in penalties for aggravated breach of a worker’s employment rights

Tribunals have the power to impose a financial penalty against employers that are in breach of employment rights where that breach has one or more aggravating factors.

The maximum compensation will increase from £5,000 to £20,000.

 

6 April 2019

Tax changes

The personal allowance will increase to £12,500 and the higher rate tax threshold to £50,000.

Class 2 NICs will be abolished.

 

6/7 April 2019

Increases to the statutory rates for maternity, paternity, shared parental pay, adoption and sick pay

Statutory rates for everything other than sick pay will increase from £145.18 to £148.68 or 90% of average earnings if lower.

Statutory sick pay will increase from £92.05 to £94.25.

 

April 2019

Apprenticeship levy

Employers may transfer up to 25% of their apprenticeship levy to support apprentices in their supply chain.

 

Jan – Dec 2019

New company reporting requirements

A number of new requirements to report about employees and pay take effect in 2019. The most relevant to HR teams are included here. The changes apply to financial years beginning on or after 1 January 2019, so the first reports will be published in 2020.

  • CEO pay ratios: Quoted companies (i.e. those listed on the London Stock Exchange, an EEA exchange, the New York Stock Exchange or NASDAQ) with more than 250 UK employees will be required to report pay ratio information in their annual directors’ remuneration reports. The pay ratio information will need to compare the total remuneration of the company’s CEO with the remuneration of employees at the 25th, 50th and 75th percentiles of the workforce, and provide an explanation of the ratios. Going forward, it is intended that the ratio information should cover a ten-year period.
  • Employee engagement: All companies with at least 250 UK employees will be required to report on employee engagement as part of their annual directors’ reports. The report will need to describe what measures were taken during the financial year to introduce or develop arrangements for providing information to employees and consulting with them about decisions likely to affect them. Directors will also need to explain how they engaged with employees and had regard to their interests, and how this has impacted on key decisions of the company.

 

January 2019 Newsletter

Happy New Year and welcome to our first Newsletter of 2019.  We hope you are all looking forward to the year ahead and, if one of your New Year resolutions is to keep up to date with HR/employment law news, we can help you with that!   This month we have updates on the key dates for 2019 employment law changes, the Government’s Good Work Plan (to deal with the ongoing issue of employment status in the new models of working developing in the “gig economy” and elsewhere) and further updates on Brexit and its people management  implications for organisations.

In our first case update of the year we look at the Court of Appeal’s decision confirming that Uber drivers are workers, and the Supreme Court’s decision that a disabled employee was not treated unfavourably when his enhanced pension on ill-health retirement was based on part-time, rather than full-time salary.

 

News from Menzies Law

This month we’re proudly celebrating 10 years of Menzies Law!

2009 feels both like an age ago and also yesterday.  It was the year we mourned the loss of people like Michael Jackson and Keith Floyd.  We were only starting to hear of these things called Twitter and Facebook and only the tech-savvy tended to be on them already.  In January that year we were only a few months into the Credit Crunch.  And if you were an ‘early adopter’ you might have one of the first iPhones…

I can’t quite believe it was a full 10 years ago that I left behind the security of a salary, company car and final salary pension scheme to realise the dream of starting my own firm.   In 2009 there were only a tiny handful of specialist employment law firms out there.  I set up Menzies Law to offer clients a great, cost-effective alternative to the large firms and I hope that I’ve managed to achieved that.

There have certainly been challenges along the way, resulting in sleepless nights and frustration. Any of you who’ve either had your own small business or worked in one will know these things simply come with the territory.  Crucial to our success at all stages have been our fabulous clients, a significant number of whom have been with us since the start.  We are so grateful for your trust, loyalty and support.  Others have joined us since and continue to do so creating an incredibly diverse client list and keeping us on our toes with an array of challenging and interesting legal issues.  We love working with all of you and truly appreciate your business.

To celebrate our 10th anniversary we’re going to spend 2019 giving you lots of goodies in multiples of 10 so look out for those.   We’ll also be launching a referral scheme which aims to support 10 great charities.  Referral and recommendation is the life-blood of a small business and we want to make sure that, while referrals enable Menzies Law to grow and develop, we also give something back.   Keep an eye out for more on that soon.

 

Upcoming seminar: Employment Law Update with Mental Health in the Workplace

Our employment law update this spring comes to you in 2 halves.  You are very welcome to come to whichever session interests you or stay all day to benefit from both seminars plus a networking lunch with your colleagues and our team of employment law specialists.

10am – 12.30pm  Employment Law Update Seminar
1.30pm – 4.30pm   Mental Health in the Workplace: legal and practical strategies
See more details and book your tickets.

 

Business Immigration

business-immigrationMenzies Law now offers you all the advice and support you will need for immigration into the UK of your staff, contractors and group employees.  As Brexit looms, it’s going to become a lot more important for HR teams.

Our Business Immigration team provides you with a comprehensive service for all of your staff visa and work permit needs.

In partnership with specialist business immigration colleagues, we can provide you with a personal and stress-free service to allow you to hire non-EEA nationals and bring colleagues in from overseas sites.  We can also help you obtain Sponsorship status.

We will keep you informed of your applications progress from start to finish and ensure that everything goes smoothly.

Our Business Immigration team can:

  • Assess your circumstances and needs
  • Advise you on the best business immigration options in the circumstances
  • Prepare and submit your applications
  • Remain in charge of the process and keep you up-to-date as it progresses
  • Provide any post-application assistance you may require.

If you’d like to discuss anything to do with Business Immigration, please contact .

 

Government Reforms

 

Case Updates

 

 

Guidance: Recruiting & managing staff with a disability or health condition

The Government (DWP) has published practical guidance for line managers (available here) concerning the recruitment, management and development of people with a disability or health condition.

The guidance covers the role of the line manager in workplace adjustments, language, behaviour and sickness absence. In collaboration with the Chartered Institute of Personnel and Development (CIPD), the guidance is a part of the Disability Confident scheme, which assists employers reap the greatest benefits from the opportunities provided by employing and developing disabled people.

The guidance helps managers:

  • attract the most suitable talent to their organisation;
  • be confident with managing and supporting employees with disabilities and health conditions, which range from recruitment and induction through to training, development and progression;
  • understand, identify and reduce barriers that could possibly prevent employees with disabilities or health conditions from reaching their full potential;
  • identify effective workplace changes or adjustments to help team members with disabilities or health conditions reach their full potential and be successful in their roles; and
  • ensure that there is fair treatment for colleagues and cultivate an inclusive working environment.

 

Government reforms (2): Tribunal fees to be reintroduced?

The Ministry of Justice’s representative (when answering questions in the House of Commons), has confirmed that the Government is working on reintroducing fees for individuals seeking to pursue claims in the Tribunal.

The Supreme Court decision in the UNISON case last year (see our update here) found the previous fee system to be unlawful. However, this does not prevent the introduction of an alternative fee scheme, provided it does not restrict access to justice. The Ministry of Justice’s representative stated that while there are no immediate plans to reintroduce fees, they are seeking a ‘proportionate and progressive’ scheme that still allows those who are unable to pay to pursue their claim.

Government reforms (1): Statutory rates increase

What do we already know?

Annually in April the annual increase in statutory pay rates come into effect which are normally increase in line with the consumer price index (CPI).

What’s new?

The following proposed increases to statutory payments will be effective in April 2019:

The weekly rate of:

  • Statutory Sick Pay (SSP) will rise from £92.05 to £94.25 per week;
  • Statutory Maternity Pay (SMP) and Maternity Allowance will rise from £145.18 to £148.68 per week; and
  • Statutory Paternity Pay (SPP), Statutory Shared Parental Pay (ShPP) and Statutory Adoption Pay (SAP) will rise from £145.18 to £148.68 per week.

To be entitled to these statutory payments, the employee’s average earnings must be equal to or more than the lower earnings limit.  The lower earnings limit is increasing from £116 to £118 in April 2019.

Case update (1): Employment status – ‘Self-employed’ private hire drivers

Summary: Were private hire drivers ‘workers’ or independent contractors as provided under the terms of their Driver Contract?

‘Workers’, said the EAT in the case of Addison Lee Ltd v Lange and others, available here.

Facts:  The claimants were all private hire drivers engaged by Addison Lee. As part of the agreement between Addison Lee and the drivers, each driver had to log into a portable computer, which allowed work to be allocated to them automatically. Once a job was assigned, the driver was expected to accept it and could only refuse if they had an acceptable reason. A sanction could be imposed on the driver for a refusal. Drivers were permitted to log off the system at any time when they were not transporting a passenger. They would have to work for a minimum of 25-30 hours per week to recover the costs of the hire vehicle, but most worked for around 50-60 hours per week.

The relevant contractual arrangements described each driver as an independent contractor and stated that they had no obligation to accept work, and Addison Lee was under no obligation to offer work.

The Tribunal decided that each driver was a worker and therefore entitled to paid annual leave and the national minimum wage.  The Tribunal found there was an overarching agreement providing for Addison Lee to offer work and for the drivers to accept work. In particular, there was an economic obligation on the drivers to log on and earn money in order to cover the cost of hiring their vehicle. When logged onto the portable computer, the Tribunal considered that the drivers had an expectation of being offered work and were then obliged to perform the work personally.

Addison Lee appealed the Tribunal’s decision that each driver was a worker.

The EAT dismissed Addison Lee’s appeal, holding that the Tribunal was entitled to find that the drivers, when logged on, were undertaking to accept the jobs allocated to them. It was not plausible that a driver would go through the training and induction process, and incur the expense of hiring a vehicle, without an expectation of having a fair opportunity of obtaining bookings. The tribunal was entitled to take a ‘realistic and worldly wise’ approach of the parties’ obligations, ignoring the express contractual provisions.

The EAT also noted the Pimlico Plumbers case (see our update here), where the regular offer and acceptance of work supported a finding of worker status.

Implications: This decision reiterates a key point: Tribunals can look behind any contractual arrangements (no matter how much expense and creativity has gone into their drafting) when determining the status of individuals.

The decision follows a previous EAT decision in May 2018 that an Addison Lee cycle courier was a worker and other similar cases which we have updated you on here. In view of the growing catalogue of similar ‘worker’ decisions, it was unlikely that the EAT would decide against the claimants.  However, as with all employment status decisions, it hinged on a factual analysis of the actual arrangements in place, rather than relying on what was specified in the contractual documentation.