REUTERS | Sergio Moraes
August 22, 2018

Sleeping on the job? Court of Appeal overturns EAT on national minimum wage for sleep-in workers

Until recently, a series of EAT decisions stretching back more than a decade appeared to establish that some sleep-in workers were entitled to be paid the national minimum wage (NMW) for every hour of their shift, including hours when they were asleep.

In Royal Mencap Society v Tomlinson-Blake (Care England intervening) [2018] EWCA Civ 1641, the Court of Appeal has rejected this position, holding that only the time when such workers are awake for the purpose of carrying out their duties will count for NMW calculations. This will come as a relief to organisations in the social care sector, as the prospect of paying arrears as well as increased future costs had threatened to tip an underfunded sector into crisis. However, Unison has sought leave to appeal to the Supreme Court. Continue reading →

REUTERS | David W Cerny
August 13, 2018

Protection of employment tribunal awards: a safe harbour in the civil courts?

The Court of Session in Scotland has ruled in AA v Secretary of State for Business, Energy and Industrial Strategy [2018] CSOH 54 that employment tribunal claimants can seek interim protection from the civil courts while their claims for compensation are still pending. Claimants can apply for “diligence on the dependence”, to freeze a respondent’s assets, so that those assets can be used to satisfy any eventual tribunal award. The typical form of diligence on the dependence is by means of arrestment of an opponent’s bank accounts. This remedy is available where the opponent is in dire financial straits, or where there is a substantial risk that the opponent will disperse their assets. Continue reading →

REUTERS | David Gray
July 25, 2018

“No DSS”: Can landlords and letting agents lawfully bar benefits tenants?

Private landlords and letting agents frequently advertise their properties stating that they will not rent to housing benefit tenants (for some outdated reason, still often referred to as “DSS” tenants).

This causes real difficulties to such tenants whose housing choices are restricted.

This blog considers the legality of such refusals under Part 3 of the Equality Act 2010 (EqA 2010) which deals with discrimination, harassment and victimisation in the context of services and public functions. Continue reading →

REUTERS | Francois Lenoir
July 19, 2018

Employers glimpse the future of EU skilled migration

The government White Paper on the future relationship between the UK and the EU, published last week, mostly evades the issue of the future of skilled EU workers.

The White Paper proposes “reciprocal provisions on intra-corporate transfers … based on existing arrangements with non-EU countries.” The only problem with this proposal is that there are no reciprocal arrangements with non-EU countries on intra-corporate transfers. Sponsorship of skilled workers under the points-based system (PBS) is the existing arrangement for intra-corporate transfers. The sponsorship regime is not an arrangement that has been agreed with non-EU countries. So what does the wording in the White Paper mean? Continue reading →

REUTERS | Thomson Reuters
July 19, 2018

Data Protection Act 2018 and subject access requests: easier for employers to resist?

The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees.

Confidential references become more confidential

The Data Protection Act 1998, under the heading “Confidential references given by the data controller“, stated that personal data were exempt from the right of access:

“if they consist of a reference given or to be given in confidence by the data controller for the purposes of … employment, or prospective … employment, of the data subject” (emphasis added) (paragraph 1, Schedule 7). Continue reading →

REUTERS | Reuters
July 12, 2018

Analysing and pleading whistleblowing claims following the Court of Appeal’s decision in Kilraine

As most employment lawyers will testify, whistleblowing claims are easy to allege, but hard to prove and even harder to win.

Much of this difficulty stems from the fact that, in my experience, whistleblowing claims are often not properly analysed prior to lodging the ET1. This results in:

  • A failure to make an informed decision on whether the claim should be brought at all.
  • Deficiencies in the pleadings.

The importance of undertaking a rigorous analysis of a whistleblowing complaint at an early stage of the litigation is under appreciated. Whistleblowing claims are often deployed as an “add-on” for claims of ordinary unfair dismissal for high earning individuals, so as to raise the spectre of a large award during negotiations. However, if the claimant and his or her advisers have not satisfied themselves that the whistleblowing claim is at least sustainable, it is a dangerous game. Employment tribunals are alert to cynical whistleblowing complaints and, once pleaded, a weak whistleblowing claim will suffer one of two fates: withdrawal by the claimant at a later stage or dismissal by the tribunal at a preliminary or final hearing. Both outcomes carry possible costs consequences. Continue reading →

REUTERS |
July 4, 2018

Menopause: the last taboo in the workplace?

In May 2018 the deputy governor of the Bank of England used the word “menopausal” to describe the country’s sluggish economy. While it was good to read the backlash and  criticism of his choice of language (and an apology from him), it is clear that we have a long way to go.

We need to talk openly about the fact that seven out of ten women of menopausal age are in work in the UK. The average age of menopause is 51 and the often challenging “transition” stage can start several years earlier. Women of course encounter the transition with varying degrees of impact. Continue reading →

REUTERS | Carlos Barria
June 14, 2018

Expectations as obligations: woolly thinking on mutuality of obligation

Those interested in the tests for employment status continue to be rewarded by the stream of gig economy cases working their way upwards from the Employment Tribunal (ET), through the Employment Appeal Tribunal (EAT) and beyond.

In parallel, the Tax Chamber of the First-tier Tribunal (FTT) has been grappling with the issue of employment status as it arises in a legislative context colloquially known as IR35. This refers to legislative provisions intended to tackle disguised employment. Briefly, if a worker contracts through a personal service company (PSC) with an end client, IR35 interposes a hypothetical contract between the contractor and the end client, and asks whether that contract would be one of employment. If the answer is “yes” then the PSC is treated as the contractor’s employer and the payments to the PSC by the end client are taxed accordingly. In this way, specialist tax tribunals have come to deal with questions usually dealt with only by the ET. Continue reading →

REUTERS | Reuters
June 5, 2018

Pay terms for shared parental leave: the implications of Ali and Hextall

The Shared Parental Leave Regulations 2014 (SI 2014/3050) provide the non-maternal parent or carer (usually, but not always the father) with the right (subject to statutory conditions) to take leave from work to share in a baby’s primary care. A DBEIS press release earlier this year suggested take-up of shared parental leave (SPL) may be as low as 2%. There may be many reasons for this, such as:

  • The longstanding cultural status quo that childcare is the mother’s role.
  • Fear of workplace repercussions.
  • Gender pay gaps rendering the male partner the more likely principal breadwinner.
  • Lack of knowledge of the right.
  • Complexity of the forms.

One possible reason derives from the asymmetry between contractual maternity leave pay provisions and those for SPL.

Continue reading →