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Your Legal Lighthouse - Guiding you through the sea of employment legislation

Latest Employment Law News & Information 

I hope that you are keeping well and that business is good. It seems that many people have been making the most of the last days of sunshine and taking holidays in September so prepare for the rush in October when everyone gets back to work and starts tackling their to do lists. 

Welcome to edition #5 of the Employment & HR newsletter, bringing you quick and easy updates on what is happening with Employment Law and HR best practice. It is the essential guide for Employers and HR professionals. 

You will receive news and information directly to your inbox fortnightly, however I may contact you with a 'Newsflash' if it is so exciting it cannot wait for the next edition of the Newsletter. 

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When is a Worker, a Worker for the purposes of the law?  



Those of you who have listened to episode 6 of my Podcast will know that there are three types of legal status that a member of staff may have. These are:
  • Employee
  • Self-Employed
  • Worker

If you have not listened yet you can click here for iTunes, here for Stitcher or here to listen online.

In a recent case decided by the Employment Appeal Tribunal the question of whether a 'Worker'  was entitled to receive payment for holiday was decided.
 

The Law


The Employment Rights Act 1996 and the Working Time Regulations 1998 define a worker as someone who has entered into or works under;

1) A Contract of Employment; or
2) Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

To establish if someone is a Worker the essential questions that need to be asked are:
  1. Is there a mutuality of obligations?
  2. Is the person required to do the work personally?
  3. Is the individual providing their service as a business?
The concept of a Worker has only developed fairly recently in employment law terms and essentially creates a class of person who has some limited employment rights. They do not meet the full requirements of an employee, but are not providing their services as a business, and therefore qualify for some rights.

Two rights that a Worker has are the right to receive holiday pay (Working Time Regulations) and the right not to suffer unlawful deductions from their wages (Employment Rights Act).

The Facts

Mr Holden was employed by Plastering Contractors Stanmore Ltd (PCS) as a general labourer from April 1997.

In February 2001 Mr Holden agreed to accept £200 from PCS in return for agreeing to become a sub-contractor. PCS then made the relevant payments to HMRC under the construction industry scheme and Mr Holden sought advice from an accountant to deal with his personal tax.

Mr Holden was notified by PCS as and when they needed him to work for them. He would accept the work, although was not required to do so and PCS had no obligation to provide him with work. The reality was that he actually worked exclusively for PCS and on a regular basis.

PCS provided him with instructions, supervision and equipment whilst he was working.

When the phone calls from PCS started to dry up Mr Holden became frustrated with PCS and he obtained work with another company. He also made a claim in the Employment Tribunal for unpaid holiday pay and unlawful deductions from wages for their continuing failure to pay holiday.

PCS argued that Mr Holden was not a worker and therefore not entitled to payment for holiday.

At the Employment Tribunal the Judge agreed with Mr Holden and PCS appealed the decision.

To read the decision and points to note please click here for my website 

When are Fixed-Term Employees treated less favourably?

In a recent case decided by the Employment Appeal Tribunal the question of less favourable treatment for fixed-term employees was discussed and decided.

The case in question involved Xerox UK Limited who were the employer. They provided income protection insurance to their employees under terms of insurance with Unum. The income protection was provided to permanent and fixed-term staff who were off work for 26 weeks’ due to injury.

In accordance with Unum’s policy terms fixed-term employees did not qualify for the income protection if their fixed-term contract expired before the end of the 26 week qualifying period.

The Law

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 provide protection from less favourable treatment for fixed-term employees. This means that they have the  the right not to be treated less favourably than a comparable permanent employee as regards the terms of their contract or by being subjected to any other detriment by any act, or deliberate failure to act, of their employer.

Facts

The employee in this case, Mr Hall worked for Xerox under several fixed-term contracts. He suffered a work-related hernia when he was approximately 3 months’ away from the expiry of the most recent fixed-term contract. Consequently Unum, refused his claim for income protection. This was despite the fact that Mr Hall’s contract had also been extended by a further year.

Mr Hall made a claim to the Employment Tribunal that he had been treated less favourably under the Fixed-term Employee Regulations.

You can read the decision here

70% Drop in Employment Tribunal claims

Latest figures released show that there has been a 70% drop in single claims compared with the same period in 2013.

This follows the introduction of fees for an employee to make a claim in the Employment Tribunal, a decision which Unison are continuing to fight in the Court of Appeal (watch this space for the outcome).

A further statistic to note is that since the introduction of ACAS Early Conciliation claims are down one-third on the last quarter (Jan-Mar 2014).
 

Changes to Employment Law in October 2014
 

 On the 1st October 2014 the following changes will become effective to UK employment law:
 
  1. The Reserve Forces (Payments to Employers and Partners) Regulations 2014.
Currently military reservists are paid directly by the Ministry of Defence when they are called into action and employers whose staff are called up can claim expenses in respect of additional costs incurred whilst replacing the reservist (to a maximum of £110 per day).

Under the new Regulations small and medium employers will also be able to receive up to £500 per month for each full month a reservist is absent from work (reduced pro rata for parts of a month, or part-time workers).
  1. Removal of qualifying period for unfair dismissal for Military Reservists
The statutory qualifying period for unfair dismissal (currently 2 years’) will not be required where the dismissal is connected with the employee's membership of the Reserve Forces.

For these purposes the Reserve Forces includes the Territorial Army, Royal Naval Reserve, Royal Marines Reserve or Royal Auxiliary Air Force.

The change will apply to employees whose employment terminates after 1 October 2014.
  1. National Minimum Wage increase
 £6.50 for workers 21 and over
£5.13 for workers 18-20 yrs
£3.79 for 16-17 yrs olds
£2.73 for apprentices under 19 or 19 and over who are in the first year of apprenticeship

 
  1. Tribunals will be able to order equal pay audits in relation to equal pay claims made on or after the 1st October 2014.
Employment Tribunals will have the power to order pay audits where an employer is found guilty of gender discrimination in relation to contractual or non-contractual pay matters.
  1. Time off to attend up to two antenatal appointments with a pregnant woman
Eligible employees and agency workers will be able to take unpaid time off work to accompany a pregnant woman to two antenatal appointments, and there will also be a protection from suffering a detriment or being dismissed in relation to time off to accompany a woman to antenatal appointments.

If you would like more information about this new right to time off for antenatal appointments then why not listen to the latest episode of my podcast. 

 

Finally......


Don't forget you can get additional legal and HR updates on my podcast; The Employment Law & HR Podcast which you can find on itunes in the Business section or on Stitcher http://www.stitcher.com/s?fid=52626&refid=stpr or online at http://adviceforemployers.libsyn.com/ 
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Have a great week.

Kind regards 



Alison Colley 
Solicitor 
Real Employment Law Advice

 
The information contained within this Newsletter is for guidance only and is a snapshot of the law at the time it is written. It is provided for information only and should not be used as a substitute for obtaining legal advice that is specific to your particular circumstances. The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek legal advice before taking action. 

Real Employment Law Advice is the trading name for Alison Colley Solicitors. Alison Colley is a Sole Practitioner Solicitor who is authorised and regulated by the Solicitors Regulation Authority: Registered number 606995. 


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