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Employment Law Solicitors

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Kemp House, 152 City Road,

London, EC1V 2NX

On 11 February 2015 a report called ‘culture change in the NHS’ has been published on progress made through the health system since the Francis Inquiry. The new report also sets out further measures for improvements to the NHS’s culture and includes plans to protect people who speak up about poor care. ‘Whistleblowing in the NHS’ was also published by Sir Robert Francis on the same day. In principle the government has accepted all of Sir Robert’s recommendations. Further measures are also due shortly and a consultation process will be followed before a final decision is made on how the recommendations are to be implemented.

News items

Plans for new legal protection for NHS whistleblowers

In the recent case of Sefton Borough Council v Wainwright, Mrs Wainwright was on maternity leave and was identified as being at risk of redundancy. Mrs Wainwright and a male colleague were given the opportunity to apply for a new role, and the role was ultimately offered to her male colleague. The question for the Employment Appeal Tribunal was whether the council’s failure to offer Ms Wainwright a new role, as opposed to merely offering her the opportunity to apply for it, amounted to a breach of MAPLE 1999. In this case the EAT found that the Council’s failure was a breach of the regulations. The decision in Sefton Borough Council v Wainwright illustrates the strict obligation placed on employers when they are conducting a redundancy exercise involving employees on maternity leave and acts as a reminder that caution is key in these circumstances.

Increased rate of holiday pay for non-voluntary overtime

Zero hours contracts ("ZHR") - Flexibility or insecurity?

Case law update - Obligation to offer alternative employment where an employee is on maternity leave

Following the press coverage last week you may already know of the Employment Appeal Tribunal (EAT) decision that ruled workers, as part of their holiday pay entitlement, are also entitled to receive payments in respect of overtime.

 

The case is seen as a victory for employees if they are working and being paid for non-voluntary overtime as they now have the right to be paid an increased rate for holiday pay. It is significant that employees can claim backdated holiday pay where it has been paid incorrectly, which in almost all cases where it relates to non-voluntary overtime will be the case. Employers will be concerned about the numbers of backdated pay claims that could be received from staff. Many firms are already starting to receive enquiries from individuals seeking advice and representation in light of the EAT judgment.

 

Backdated holiday pay claims must be based on a series of deductions. It has been suggested (although needs clarification) that a gap in excess of three months in any series of deductions will in effective break the chain of causation. Employees will need to work out the value of a claim versus the cost before deciding whether to bring a claim. (The current cost of issuing proceedings totals of £390 for the issue fee and hearing fee). In reality the cost of proceedings is likely to act as a deterrent in some cases, although it should be noted that these fees are potentially recoverable from an employer in the event that an employee’s claim succeeds.

 

When you receive backdated holiday claims from your staff we recommend obtaining legal advice prior to responding. Claims may become ‘time barred’ three months after the payment of holiday pay at the correct level and that could prove to be an easy way out of a difficult spot for employers. Employers requiring their employees to sign confidentiality undertakings when claims for backdated pay are settled will be of paramount concern.

At Solicitor Employment Law we can advise companies on the options for addressing any queries arising from staff and help you to put in place procedures to protect against future claims. Contact us if you require assistance.

In August 2013 the Work Foundation published a report exploring the rise in zero-hours contracts:- “Whatever the hard numbers tell us, zero-hours contracts have come to symbolise a wider concern that the labour market is moving towards more contingent, less secure, and more exploitative forms of employment at a time when in many areas jobs are scarce and people have little choice over taking what work is available.”

Employment rights

Proposals for reform include:-

The benefit to employers

ZHC’s allow for fluctuations in demand and will therefore be beneficial to employers who depend on public funding which may be at risk of being removed, or employers who operate a seasonal business. Alongside the conflict of opinion as to the benefits and abuses of ZHC’s is the fact that currently no consistent definition exists. This makes it very difficult to identify a solution to their possible misuse. Some ZHC’s contain a clause which prevents an individual from working for another employer which is known as an ‘exclusivity’ clause. This clause applies even if the employer has no work for the employee which is generally considered to be restrictive and prohibitive.

Due to the vast range of working practices that fall within the scope of zero hours contracts, there is no one set of legal rights and obligations that apply. An individual’s statutory rights will be determined according to his or her employment status i.e. whether he or she is an employee, a worker or a self-employed independent contractor. We are experienced in providing comprehensive advice in respect of any relevant legislation and can guide you through the level of protection that you have under a ZHC.

* Statutory definitions of ZHC’s and zero hours workers

* Banning of exclusivity clauses

Auto enrolment for smaller companies

Most SME's will be aware that since October 2012 it has been mandatory for companies with in excess of 500 staff to automatically enrol employees in a pension scheme. However smaller employers may not be aware that auto enrolment now affects all employers with staff in the UK.

 

Automatic enrolment means that staff are put into a pension scheme by their employer as a matter of course rather than having to choose to join a pension scheme. The obligation to auto enrol takes effect from an SME's 'staging date' which is the first date that a company must have an auto-enrolment pension scheme set up.

 

We will be happy to provide guidance on the key steps to follow in order to ensure you are compliant with the legislation.

Employment tribunal awards set to increase in 2013

The government are currently in the process of approving the annual increase in maximum employment tribunal awards.

 

Of particular importance are the proposed increases in a statutory week’s pay and the overall cap on the compensatory award.

 

Accordingly, for dismissals which take place after 1 February 2013 a statutory week’s pay will increase from £430 to £450 whereas the maximum compensatory award will increase from £72,300 to £74,200.

 

In consequence, the maximum amount of Basic Award or statutory redundancy pay available to an employee will increase from £12,900 to £13,500. Furthermore, the maximum overall award in respect of a straightforward unfair dismissal claim will increase from £85,200 to £87,700.

 

If you think you have a potential employment tribunal claim don’t miss out on potential compensation. Our experienced employment law solicitors can help to maximise the amounts of compensation which could be owing to you. Call us today for a free initial consultation.

Is a lap dancer an employee?

This is not, of course, a question which is commonly put to us here at Employment Law Solicitors. The broader legal issues, however, regarding employment status is one which arises far more commonly than people might think.

 

The court of appeal in Stringfellows Restaurants Ltd v Quashie recently addressed this question, adding to the myriad of jurisprudence in this area.

 

In this case, Ms Quashie was a lap-dancer at Stringfellows who sought to bring a claim for unfair dismissal. The preliminary issue in this case was whether Ms Quashie was an employee of Stringfellows or self-employed.

 

The EAT initially decided that Ms Quashie was an employee and that there was a contract of service on the nights that she danced at Stringfellows. The court of appeal, however, overturned the decision of the EAT and held that Ms Quashie was not an employee.

 

Although Ms Quashie worked under a contract, and there were mutual obligations of some kind in place when she was actually working, Elias L J found that she had not been engaged under a contract of employment. This was because the manner in which Ms Quashie had been paid made it clear that Stringfellows had been under no obligation to pay her anything at all. For example, Ms Quashie negotiated her own fees with clients and therefore ran the risk of being out-of-pocket on a particular night. Hence the economic risk taken on by Ms Quashie meant that employment status did not exist here.

 

Whilst the facts here are slightly quirky, the legal principles can be applied in many more common circumstances; for example, those working in the building trade or providing IT services.

What is clear from this case is that employment status cases are by no means straight forward. For this reason it is often preferable to obtain professional legal advice from qualified employment law solicitors who can guide you through the minefield of case law. Why not contact us today for a free initial consultation?

Employment rights in exchange for shares?

Under recently unveiled government plans employees will be asked to give up some of their employment rights in exchange for shares in their company and tax-free gains, under a new "owner-employee" employment contract.

 

Chancellor George Osborne set out his plans for a "voluntary three-way deal", which would see employees give up such rights as those around unfair dismissal and redundancy.

 

In return, employees would get between £2,000 and £50,000 worth of shares in the company they work for. Furthermore, they would potentially be exempt from paying capital gains tax on any profit made from them.

 

Although optional for existing employees, it is anticipated that companies will be able to choose to only offer this type of contract for new recruits from April 2013 onwards.

 

Those employed under this type of contract would effectively give up their rights to bring claims such as unfair dismissal, redundancy, the right to request flexible working and time off for training. Female employees would also have to give 16 weeks' notice of their date of return from maternity leave, instead of the usual eight weeks.

 

As yet no firm provisions have been put in place. Employees are advice to watch this space, however.

 

If you have an employment law issue why not get in touch and speak to one of our experienced employment law solicitors for a free initial consultation?

All change for 2013…

Employment law’s reputation as a fast-moving field of practise doesn’t look set to change anytime soon. Here are just a few of the developments that 2013 looks set to bring:

 

* Unpaid parental leave is set to increase from 13 weeks to 18 weeks by March 2013.

 

* CRB (criminal records bureau) results will become available online for Employers by April 2013. This will mean that employees will not potentially have to obtain a new check each time they start a new job.

 

* A significant change is set to take place with the introduction of Employment Tribunal fees. At present the proposed levels of fees are as follows:

 

  - £160-£250 to issue a claim;

  - £230-£950 for the Tribunal to hear a claim; and

  - £400-£1200 for an appeal to the EAT

 

Fees are set to vary depending on the complexity of the case. Tribunals will also have the power to order the unsuccessful party to reimburse fees paid by the successful party and a fee ‘remission’ system is proposed for those who cannot afford to pay them.

 

In addition, a number of further changes are planned although no firm dates have been fixed. For example:

 

* Mandatory ACAS conciliation is set to be introduced prior to employment tribunal claims, whereby ACAS will try to conciliate a settlement before a claim can proceed to Tribunal.

 

* So-called ‘rapid resolution’, whereby certain legal officers that are not judges will be able to decide some tribunal claims.

 

* The introduction of employee “shareholder contracts”, whereby employees will give up certain employment rights in return for shares in the company.

 

All in all, 2013 looks set to be a busy year with the need to obtain professional legal advice on employment law matters increasingly necessary. Why not contact one of our experienced employment law solicitors for a free initial consultation?

April 2017 - changes to Salary Sacrifice

Gender Pay Gap reporting

The 'gig economy'

Trade union balloting changes to be implemented

Apprenticeship levy to be introduced

Immigration skills charge to come into effect

Following the government's decision to alter the way in which employers can offer salary sacrifice schemes, from April 2017 tax benefits will be removed for anything from private health schemes to gym membership.  Although there is some good news in that the childcare voucher scheme will remain, and in fact be increased from 15 to 30 hours per week from September 2017.

 

Employers will be advised to review all employee benefits and check the transitional arrangements. .

From April 2017 companies with more than 250 employees will need to start collecting data on their employees and establish a "baseline pay gap figure", then carry out the same exercise in April 2018 before publishing the same.  The purpose is to identify what is driving the difference in the figures reported for male and female employees and what steps businesses are taking to close the gap.  

The Uber tribunal verdict which was handed down in October 2016 has far reaching implications when it comes to the future of the gig economy.  Uber has appealed the verdict, which ruled that the terms and conditions of the arrangement two drivers had with the company meant that they should be classified as workers rather than self-employed and, as such, were entitled to national minimum wage, holiday pay, rest breaks and the protection of the whistleblowing legislation.

 

Other cases have been brought against Deliveroo and CitySprint and there have been well publicised investigations into companies such as Sports Direct and Amazon and their use of zero hours contracts.

 

Employment status has long been the greyest area of employment law - is someone self-employed or are they really an employee or a worker?  The future of the gig economy and zero hours contracts will likely be determined by the results of these tribunal cases and, should the tribunal appeal court uphold the Uber verdict, it is likely to open the floodgates for similar claims.

Employers await the implementation date for new balloting requirements under the Trade Union Act 2016.  Under the rules, a successful vote for strike action will require a 50% minimum turnout and a majority vote in favour of industrial action.  Industrial action in important public services will require a strike vote of 40% of all eligible voters.  The recent Southern Rail and London Underground strikes would fail within these definitions.  The new legislation is not yet in force, however, draft statutory instruments have now been published which suggest the new laws will come into force on 1 March 2017.

In a bid to increase apprenticeship funding large employers (i.e. those with an annual payroll of more than £3 million) will be required to pay a 0.5% levy on their total pay bill with effect from 6 April 2017.  This figure will be reduced by a 'levy allowance' of £15,000 per year, however, meaning that an employer with a total pay bill of £3.5 million would potentially pay a total levy of £7,500, i.e. £17,500 less £10,000.

 

Large employers will be able to access levied amounts, plus a government top-up of 10% to fund apprenticeships from accredited training providers.  Smaller organisations not required to pay the levy will also potentially be eligible to receive funding for accredited apprenticeships by contributing 10% towards the cost of an apprenticeship, with the remaining cost provided by the Government.

As of April 2017 employers sponsoring foreign workers with a tier 2 visa will be required to pay an immigration skills charge of £1,000 per worker (with a lesser charge of £364 applicable for small employers and charities) in addition to current fees for visa applications. Immigration Minister, Robert Goodwill, has also indicated that a similar charge may be applied in respect of skilled EU workers post-Brexit although these plans are yet to be confirmed.

 

Employers should also be aware that the minimum salary threshold for “experienced workers” applying for a tier 2 visa is set to increase to £30,000 with effect from April of this year, although new entrants to the job market and selected health and education employees are exempt from the salary threshold until 2019.  

Supreme Court ruling on Employment Tribunal fees

The Supreme Court has ruled that the Employment Tribunal fees introduced by the government in 2013 are unlawful.  The government's aim had been to reduce malicious and weak cases but in fact saw a reduction in 79% of all claims.  The government will need to repay £32M back to Claimants.