May 11

Employers…how to stay in line with GDPR when recruiting…..

During your recruitment process it is essential that you handle job applicant data in accordance with the strict new rules under the GDPR. The GDPR demands certain requirements as to the transparency about the processing and the communication with the job applicant.

This can be communicated in a privacy statement tailored specifically for job applicants.

Which requirements need to be met by a privacy statement?

A privacy statement must have the following characteristics:
• concise
• transparent
• easy to understand
• easy to access

These requirements should ensure that the candidate knows exactly where (s)he stands according to the protection of his or her data.

Additional and more specific requirements may apply, depending on the way data is being collected:

• Direct data collection is when the candidate inserts his data himself, for example via an application form.
• Indirect data collection is when a recruiter takes data, for example, from a candidate’s LinkedIn profile.

Direct processing of personal data

When data is being collected directly from the candidate, the privacy statement needs to be provided before or at the moment the data is being transferred. You can manage this by inserting a link to the privacy statement in the application form.

The privacy statement should at least contain the following information:

• the data processor’s identity and contact information
• the goal and legal foundation for the processing
• the data processor’s legitimate interest
• the possible recipients (or categories of recipients) of the personal data
• information regarding the forwarding of personal data to a third country (outside the EU), if that’s the case
• the storage period or the criteria that are being used to determine the storage period
• the person concerned needs to be informed about his/her rights
• the person concerned needs to be informed about his/her right to withdraw his/her approval for the processing of data
• the person concerned needs to be informed that he/she has the right to file a complaint
• it needs to be declared if automated decisions will be made

Indirect processing of personalised data

If data is collected indirectly, for example via LinkedIn, the same requirements as illustrated above apply. Additionally, it needs to be indicated which type of data (category) were processed and which source has been used.

If the personal data are being processed with the goal to communicate with the person concerned, this information needs to be provided at the moment of the first contact.
Also, if the personal data is being forwarded to third parties, the person concerned needs to be informed, at the latest when the data is being shared with third parties.

Identity and contact information

Both the identity and the contact information of the person who is in charge of the data processing need to be stated in the privacy statement.

Legal basis of the processing

In order to process personal data, there needs to be a legal basis for the processing. The following mentioned requirements need to be fulfilled:

• the person concerned has given their approval for the data processing
• the processing is necessary for the execution of a contract
• the processing is necessary for the data processor’s compliance with legal obligations
• the processing is needed for the protection of the parties’ vital interests
• the processing is necessary for the execution of a task
• the processing is necessary to comply with the legitimate interests of the person in charge of the processing

Storage period

Personal data may not be stored any longer than for the sole purpose of the collection. In general, data collected during the recruitment process should be deleted as soon as it becomes clear that the candidate won’t be hired.

If you want to store the candidate’s data for future offers, you need to inform them beforehand and be ready to delete it if they change their mind.

If you would like a privacy statement for the purposes of recruitment, please email me nicola.goodridge@goodhr.co.uk or call me on 07917 878384.

May 2

Can an employer dismiss an employee due to long term sickness?

It’s a common thought that employers are expected to keep a sick employee’s job open indefinitely. However this is not the case – although it is necessary to follow a fair procedure to manage a long term absence situation. If you proceed towards a dismissal you will potentially have to show that the dismissal was justified and fair after properly exploring all the options open to you.

What to consider when terminating employment on the grounds of ill health

An employment tribunal will consider if you have followed an appropriate procedure and would suggest you do the following before considering dismissal on grounds of ill health:
• Ensure the absence has been dealt with in accordance with your absence and capability policy
• Keep in touch with the employee regarding their condition and their prospects of a return to work.
• With the staff member’s permission, commission a report from an occupational health practitioner.
• In conjunction with occupational health guidance, formally review the role and the individual’s capability and decide whether adjustments can be made.
• Consider whether there is another job available in the company which the employee could do.
• Consider whether the job can be done part-time with recruitment if necessary.
• Assess the information available and determine whether the employee’s return to work can be facilitated.
• If a partial return to work can be considered, develop an “induction” or phased–in process.
• Keep in contact after a return.

Alternatively, after following the guidance above, in the event that no return to work date is foreseeable or suitable alternative employment cannot be found or reasonable adjustments or modifications to the workplace are not practical or possible, termination on grounds of ill health may result.

An important case in 2017 helpfully made the following points for employers to use when deciding whether to, and how to, fairly dismiss on the grounds of ill health:

• It is not necessarily unfair for an employer to decide that the time has come to dismiss an employee who has been absent for over 12 months with no certainty as to when the employee will be able to return. While an employee can easily advance the argument “give me a little more time and I am sure I will recover”, there comes a time when an employer is entitled to some finality.

• The severity of the impact on the employer of an employee’s continued absence must be a significant element when determining the point at which dismissal becomes justified. A tribunal considering a long-term sickness absence dismissal will expect some evidence of the disruption to the business, although in some cases the impact will be so obviously severe that a general statement from the employer to that effect will suffice.

• It is important that the medical evidence upon which a decision is being made is up to date. Repeated reports may have to be gained through the period of the illness or injury to ensure that changes in the prognosis are taken into account.

Importantly, the Court made it clear that employers are not expected to wait forever for an employee to recover from illness.

However, the court warned employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing. It is therefore a good idea for the employer to have a written record of the issues that are being caused, for example who has been brought in to cover the work, or what extra work colleagues are doing because of the absence.

Always seek advice before terminating on grounds of ill health as each case will turn on its facts.

Please call me on 07917 878384 or email me nicola.goodridge@goodhr.co.uk if you need advice.

April 27

How to fairly and legally engage an intern this summer…..

Relevant work experience has become an essential part of getting a graduate job. Whilst many internships are paid, very many unpaid internships are still offered (largely in the media, charity and fashion sectors). The government is now cracking down on these exploitative unpaid internships and is directing HMRC to enforce at least minimum wage where interns are classed as workers (rather than genuine volunteers), regardless of experience or length of internship.

There are already laws in place to prevent many types of unpaid work experience, but they include some grey areas. Hopefully the following will clarify the position.

Are unpaid internships illegal?

Under the existing laws it is illegal for employers not to pay their workers and in many cases this includes interns, whether they are students or graduates. However, employers don’t have to pay their interns if the nature of their time spent at the employer can be defined in certain ways. This is why you need to know your rights before starting any kind of internship or work experience.

By law, employers have to pay their interns the national minimum wage if:
• the placement is likely to lead to an offer of permanent, paid work
• the employer is obliged to give them work to do, and they are obliged to do it
• it is real work of the sort a paid employee or contractor would be asked to do
• the business is relying on their specific skills in the tasks they undertake
• they cannot come and go as they please
• thus they are classed as a ‘worker’

By law, employers do not have to pay their interns the national minimum wage if:
• the intern is required to do an internship as part of a UK-based higher education course
• the intern is working for a charity or voluntary organisation and is receiving limited expenses, such as for food and travel
• the intern is only work-shadowing – they are observing an employee and not carrying out any work themselves.

What’s wrong with unpaid internships?

Firstly, they are seen as exploitative. It’s unfair for an employer to profit from an intern’s work when the intern isn’t paid for it – someone working for them under any other circumstances would be. The employer is getting something for free and could be seen as taking advantage of a student or graduate’s eagerness to get experience in that field of work. For graduate interns, in particular, a long unpaid internship could be regarded as a way of having someone do a graduate job without paying them for it.

Secondly, unpaid internships are a barrier to social mobility. Students and graduates from wealthier backgrounds can take part in, and benefit from, unpaid internships, while many others simply cannot afford to. Research published by The Sutton Trust in 2018 estimated that the minimum monthly cost of doing an unpaid internship, taking into account rent, bills, travel and other livings costs, was £1,019 in London and £827 in Manchester.

What makes a good internship?

The best internships are paid, but they also meet other criteria.
• Interns should be recruited through an open advert, in the same way as other employees
• Interns should be given as much responsibility and diversity in their work as possible
• Interns should have a proper induction
• A specific individual should be allocated to supervise interns, mentor them, and conduct a formal performance review to evaluate the success of their time with the organisation
• A reference should be provided on completion of the internship

Documentation

Whether you are engaging a volunteer or a paid intern, an agreement should be drawn up between the parties.

Please call me on 07917 878384 or email me nicola.goodridge@goodhr.co.uk if you would like either or both.

March 1

It’s snowing….can I refuse to go to work?

It looks stunning!! But the heavy snow affecting large swathes of the UK is making it tough for many people to get to work.

What are your rights if you can’t make it into work?

Will I still get paid?

In most cases you’re not automatically entitled to pay if you are unable to get to work because of travel disruption or bad weather. But, if your employer normally provides your travel to work and this has been cancelled because of the bad weather then you should still be paid.

Some jobs may also have a specific clause written into their contracts, or have a collective agreement in place, that an employer will pay you if you cannot get to work due to circumstances beyond your control.

Some employers might also make discretionary, informal arrangements, like allowing you to work from home or agreeing that you will be paid but you need to make up the missed time at a later date. But it is important to remember they are not obliged to do this.

Can my employer force me to take a day off as holiday?

Yes your employer can ask you to take a day of paid holiday but only if they give you sufficient warning. The law states that you must be given a warning period of “at least” double the length of annual leave which you are being asked to take.

So, if your employer wants you to take one day’s annual leave, for example, they would need to give you two days’ notice.

What if my workplace is closed?

In these circumstances, you are entitled to be paid and your employer cannot require you to take the time as annual leave.

However, your employer can still ask you to work from home, or ask you to go to another workplace that is open if the business has one.

My child’s school is closed due to snow, can I take the day off?

Employees have the right to take unpaid time off to deal with emergency situations for their children or other dependents and a school being shut at short notice is likely to be considered an emergency.

Strictly, the day would be unpaid but not all employers would take this approach. It maybe that you can work from home. It maybe that you agree to take the day as annual leave so you do not miss out on pay.

My office is freezing – can I go home?

A minimum temperature of 16C is recommended for offices where the work is deskbound and fairly sedentary. If the work requires physical effort, the minimum recommended temperature is 13C.

These temperatures are not a legal requirement but your employer has a duty to provide a “reasonable” temperature in the workplace.

If low temperatures make it unsafe for workers, then you should be allowed to wear warmer clothing, take extra breaks to make hot drinks and also be allowed to bring in extra heating options such as portable heaters.

However, if you’re vulnerable in any way, for example are pregnant, then you may be sent home to protect your health, and this would usually be on full pay.

Call me on 07917 878384 or email me nicola.goodridge@goodhr.co.uk if you need help!

February 6

Are you prepared for GDPR? GoodHR can help with the documents you need……………

On 25th May 2018, Europe’s data protection rules will undergo their biggest change in two decades. Since they were created in the 90s, the amount of digital information we create, capture, and store has vastly increased. Simply put, the old regime was no longer fit for purpose.

There is a lot of “scaremongering” around the potential impact for businesses, but for those businesses and organisations already complying with existing data protection laws the new regulation is only a “step change”.

Many of the GDPR’s main concepts and principles are much the same as those in the current Data Protection Act. For businesses already complying with the current data protection law, it’s highly likely they will be meeting many of the GDPR principles.

The differences, however, are……

* The need for consent underpins GDPR. Individuals must opt-in whenever data is collected and there must be clear privacy notices. Those notices must be concise and transparent, and consent must be able to be withdrawn at any time.

* Accountability is key. Businesses and organisations must be able to demonstrate they comply with the GDPR principles which means being more accountable for their handling of people’s personal information. Crucially, it is the businesses’ responsibility to ensure compliance. Mandatory activities to demonstrate compliance include:

o Staff training
o Internal audits of data processing activities
o Internal HR reviews
o Appoint a data protection officer (if over 250 employees)
o Maintain all documentation
o Meet all the principles of data protection
o Implement Protection Impact Assessments

* Under the GDPR the right for businesses to charge £10 if an individual wants to access information held about them is being scrapped. Requests for personal information can be made free-of-charge. When someone asks a business for their data, it must produce the information within one month.

* The GDPR also gives individuals the power to get their personal data erased in some circumstances. This includes where it is no longer necessary for the purpose it was collected, if consent is withdrawn, there’s no legitimate interest, and if it was unlawfully processed.

* One of the biggest, and most talked about, elements of the GDPR is the power for regulators to fine businesses that don’t comply with it. If an organisation doesn’t process an individual’s data in the correct way, if it requires and doesn’t have a data protection officer or if there’s a security breach, it can be fined.

25th May will be here very quickly!

I can help you produce the following:

1. A privacy notice for employees, workers and contractors that notifies them about the personal data that the employer holds relating to them, how they can expect their personal data to be used and for what purposes.

2. A memorandum to a board of directors outlining the key issues concerning the GDPR, the need for a company-wide programme addressing these issues and what this programme needs to include.

3. A privacy standard (previously, a data protection policy) setting out the principles and legal conditions that organisations must satisfy when obtaining, handling, processing, transporting or storing personal data in the course of their operations and activities.

Call me on 07917 878384 or email me nicola.goodridge@goodhr.co.uk if you need help!

January 22

Five employment law developments to watch out for in 2018……

As ever, the year ahead sees a number of significant domestic employment law developments. A brief overview of them follows:

1. The General Data Protection Regulation (the GDPR) comes into effect

The GDPR which updates and harmonises data protection law across the EU, will come into effect on 25 May 2018 for all EU member states, including the UK.

Organisations need to be conducting data audits and policy reviews in the lead up to May, to ensure that their data protection practices are GDPR compliant. Many employers will need to issue new or updated privacy notices to employees and job applicants, outlining what data they collect and how the data is used.

Employers will also be conducting third-party contract reviews where they outsource data processing, for example to payroll and benefit providers, or to recruitment or consulting services.

Developing and implementing a GDPR compliance programme can be a resource-heavy undertaking. Accordingly, employers are encouraged to risk assess their compliance gaps and address the issues that pose the most significant risks first.

2. First gender pay gap reporting deadline

Private and voluntary-sector employers with 250 or more employees have until 4 April 2018 to publish their first gender pay gap report.

The reports will cover pay data from 2016 to 2017, including the differences in mean pay, median pay, mean bonus pay and median bonus pay between male and female employees. Reports also have to set out the proportion of male and female employees in the pay quartiles of an organisation and the proportion of male and female employees who received bonus pay.

Employers must post their reports on their own website and on a Government website.

As has been seen this week with the BBC, despite equal pay legislation coming into effect over 40 years ago, this is still a live issue and one that should be addressed by all employers, regardless of how many staff they have, as a matter of good practice.

3. Minimum wage rates increase

The national living wage for workers aged 25 and over will increase to £7.83 per hour on 1 April 2018.

Other national minimum wage rates will also increase, with rates rising to £7.38 per hour for workers aged 21 to 24, to £5.90 per hour for workers aged 18 to 20 and to £4.20 for workers aged 18 who are no longer of compulsory school age.

4. Statutory family pay amounts uprated

The weekly amount for statutory family pay rates will increase to £145.18 on 1 April 2018. This rate will apply to maternity, adoption, paternity and shared parental pay and maternity allowance.

5. Brexit preparations

The Government’s initial agreement with the European Commission contained terms that protect the rights of EU citizens who currently reside in the UK to live, work and study in the UK following Brexit.

The announcement provides employers with more certainty as they continue to develop their contingency plans around Brexit. The agreement does not relate to the ability of new EU workers to migrate to the UK to work after Brexit. Employers in sectors that rely on considerable inflows of European workers still need to wait for confirmation of immigration arrangements following withdrawal from the EU.

For further detail or assistance with any of the above please get in touch with me at nicola.goodridge@goodhr.co.uk

December 21

Managing Christmas in the workplace…

1. What should employers do to prepare for the festive season?

Issue a statement to employees in advance of a Christmas party (or similar work-related event) to remind employees of conduct matters, including the dangers of excess alcohol consumption, and behaviours that could be viewed as harassment.

2. Do employers really need to be proactive on behaviour on workplace social events?

Yes, because employers have a duty of care towards staff, and as a matter of good practice.

The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.

3. Is an employer responsible for what happens at a Christmas party?

It is safe to assume that an employer will be liable for an employee’s behaviour even if it is during an office party. In a recent case a police officer complained of sexual harassment by work colleagues in a pub outside working hours. The tribunal held that social events away from the police station involving officers from work either immediately after work, or for an organised party, fell within the “course of employment” and thus the employer was liable.

4. Can employees be disciplined for misconduct after a Christmas party?

Yes, if the incident is sufficiently closely connected to work to have had an impact on the working situation. A tribunal recently held that the employer was found to have fairly dismissed an employee for a brawl after the end of a Christmas party.

5. What should an employer do where more than one employee is involved in the same incident?

Where the circumstances are truly parallel, employees must generally be treated the same. Establishing “who is to blame”, however, can be difficult where memories are blurred by alcohol and the evidence is unclear.

In a case involving two zoo keepers who got into a fight at London Zoo’s Christmas party, one was dismissed and the other was issued with a final written warning. Given the lack of clear evidence as to who started the fight, the employment tribunal found the dismissal to be unfair. The tribunal held that the employer could have legitimately dismissed them both, or issued both with final written warnings.

6. Can employers compel their employees to work overtime in the run-up to Christmas?

If the contract of employment includes a clause requiring an employee to work overtime when required, then it will generally be reasonable to take disciplinary action if an employee refuses to do so.

In one case, an employee of a small food company was dismissed for gross misconduct, having refused to work overtime during the company’s busiest period, despite a clause in her contract requiring her to work extra hours when required.

An employment tribunal found the dismissal to be fair and within the “range of reasonable responses”, not least because the consequences for the employer’s business of not dismissing her could have been “disastrous”.

7. Can an employee insist on taking holidays during the Christmas period?

No. In the absence of an agreement to the contrary, workers must give notice equal to twice the length of the holiday that they wish to take.

The employer can then give counter notice requiring that the leave not be taken, so long as this counter notice is equivalent to the length of the holiday requested, and the worker is not prevented from taking the leave to which he or she is entitled in that holiday year.

Where an employee has accrued untaken leave and gives reasonable notice to the employer to take the leave, the employer must have valid business reasons for refusing the employee’s request to take leave.

Where an employee insists on taking leave and does so without approval, the employer should approach the issue sensibly and be careful not to impose a disproportionate penalty on the employee. In a recent case an employee who was dismissed for failing to attend work without permission on Christmas Eve was found to have been unfairly dismissed by an employment tribunal – the dismissal was not a proportionate response.

8. What if an employee comes to work late, or not at all, the day after the Christmas party?

An employer can make deductions from employees’ pay if they turn up for work late the morning after the company Christmas party as long as the right to make deductions from wages for unauthorised absence is reserved in the employment contract.

If disciplinary action is to be taken for lateness or non-attendance after the Christmas party, employers should ensure that staff are informed that this is a possibility in the disciplinary policy.
Where an employee does not attend due to illness, the employer should follow its sickness absence procedures.

The retailer, Argos, reportedly offered an attendance allowance to encourage its staff not to take time off sick! This may be attractive but care needs to be taken as such an allowance carries the serious risk of an indirect disability discrimination complaint that may be difficult to justify.

9. Can employers require employees to take annual leave during the Christmas period?

Yes. For those businesses that close over the Christmas period, employers will need to put in the contract a clause requiring workers to take annual leave at that time.

10. What if travel disruption delays an employee returning to work following the Christmas break?

This can be a common issue, particularly given planned strike action on rail services over the Christmas period.

While there is no obligation to pay employees who fail to attend work due to public transport issues, many employers will want to offer flexibility and alternative options – ie. if the role is suitable, technology may allow the employee to work from home or from another location. Alternatively, the employer could require the employee to make up the time later or take the time as paid annual leave.

December 21

What are the General Data Protection Regulations (GDPR)……employers take note!

Despite Brexit, the UK will implement the General Data Protection Regulations (GDPR) when it comes into force on 25 May 2018. There are significant changes employers need to be aware of – including a new penalty regime.

The GDPR harmonises data protection laws across the EU and updates the current 20-year-old regime to take account of globalisation and the ever-changing technology landscape.

An overview of the GDPR

It will apply not only to EU companies, but to any company processing the personal data of individuals in the EU in relation to offering goods or services, or to monitoring their behaviour.

Significant penalties can be imposed on employers that breach the GDPR, including fines of up to €20 million or 4% of annual worldwide turnover, whichever is greater.

The level of fine will depend on the type of breach and any mitigating factors, but they are undoubtedly meant to penalise any employer’s disregard for the GDPR.

The current statutory timeframe of 40 days to comply with a subject access request for data will be abolished and replaced with an obligation on employers to ‘comply without undue delay’ and at the latest within one month of the request. The removal of the 40 day period will make the employer’s duty to comply more onerous meaning policies and procedures will need to be updated and staff trained to ensure compliance with the new timeframes.

More detailed privacy notices

Under the current law, employers are required to provide employees and job applicants with a privacy notice setting out certain information – ie. some or all of the ways the employer gathers, uses, discloses and manages an individual’s data.

Under the GDPR, employers will need to provide more detailed information, such as:
· how long data will be stored for;
· if data will be transferred to other countries;
· information on the right to make a subject access request; and
· information on the right to have personal data deleted or rectified in certain instances.

Restrictions to consent

Currently, many employers justify processing personal data on the basis of employee consent. This approach has been increasingly criticised because there is doubt as to whether or not consent is actually given freely in the subordinate employer-employee relationship.

There are more prescriptive requirements for obtaining consent under the GDPR and employees must be able to withdraw their consent at any time. This will make it harder for employers to rely on consent to justify processing. Instead, employers will generally need to rely on one of the other legal grounds to process personal data – ie. that it is necessary for the proper performance of the employment contract, in order to comply with a legal obligation, or for the purposes of the employer’s legitimate interests.

New breach notification requirement

The GDPR imposes a new mandatory breach reporting requirement. Where there has been a data breach (such as an accidental or unlawful loss, or disclosure of personal data), the employer will have to notify and provide certain information to the data protection authority within 72 hours. Where the breach poses a high risk to the rights and freedoms of the individuals, those individuals will also have to be notified.

Data protection officers

All public authorities and those private companies involved in regular monitoring or large-scale processing of sensitive data will need to appoint a data protection officer to:
· advise on GDPR obligations;
· monitor compliance; and
· liaise with the data protection authority.

How to prepare now

Co-operation and understanding of the new GDPR obligations across the business is critical and organisations will need HR, legal, IT and compliance teams to take a combined approach.

The most important steps for HR to take now include:

1. Carry out a data audit. Carefully assess current HR data and related processing activities and identify any gaps with the GDPR.

2. Review current privacy notices and update them to comply with the more detailed information requirements. All information provided must be easy for employees and job applicants to understand.

3. Assess the legal grounds for processing personal data. Where consent is currently relied on, check whether or not it meets GDPR requirements and remember that consent may be revoked at any time. Employers will generally need to rely on one of the other legal grounds to continue to process employee personal data.

4. Develop a data breach response programme to ensure prompt notification. Allocate responsibility to certain people to investigate and contain a breach, and make a report. Train employees to recognise and address data breaches, and put appropriate policies and procedures in place.

5. Determine whether or not a data protection officer must be appointed and, if so, think about how best to recruit, train and resource one.

October 4

Worker or self-employed? Employers take note of Uber’s predicament……

In the past few months, a series of legal cases have been brought by individuals claiming that they are workers (and therefore have workers’ rights) against companies attempting to classify them as self-employed contractors.

The main cases to hit the press have been against Uber and Addison Lee. These cases have all been decided in the workers’ favour – the individual has been held by the tribunal to be a worker not a self-employed contractor.

Why the explosion of these cases?

There is a general trend for employers to increase the flexibility of their workforce to cut costs.
Engaging the majority of the workforce on ad hoc, self-employed contracts is cost effective and efficient for a company. It can give its contractors as little or as much work as it wishes, and end the relationship without going through any procedures and with little risk of a claim against it.

Self-employed contractors have almost no rights under employment law. In particular, unlike workers, they have no right to a minimum wage or holiday pay, and these are the main rights that are sought by individuals.

Why did the workers succeed in their claims?

In the decided cases, the workers’ victories came down to two main issues:
1.. the companies have too much “control” over the way they work
2. the companies require them to perform the work personally, rather than being able to provide a substitute.

Although employment tribunals use a number of tests to decide whether an individual is a worker or self-employed, the “control” and “substitution” tests are two of the most important.

Control

In both Uber and Addison Lee, the employment tribunal decided that the contracts between the company and its drivers bore little resemblance to the way they worked in practice.

The tribunal therefore largely disregarded the contracts and looked instead at the reality of the working relationship.

In Uber, the company claimed that it was merely a technology platform, linking 30,000 drivers operating their own independent businesses. The tribunal rejected that deciding that the level of control exerted by Uber over the drivers was key to the tribunal’s decision.
The drivers had very little autonomy to determine the manner in which their services were performed and no chance at all to dictate its terms.

The level of control exercised by the company over the claimant in each case was held as incompatible with genuine self-employed status. The individual was an “integral part” of the company’s operations and “subordinate” to the company.

Substitution

The principle of substitution is the right of an individual to substitute another if, for whatever reason, they cannot provide the service or carry out the work. Therefore, a genuine self-employed contractor can usually substitute another worker to perform the contract. On the contrary, a worker or employee is obliged to provide their services to the company personally.

In both Uber and Addison Lee, it was clear that substitution was not a realistic possibility. The individuals were under an obligation to provide their services personally. Both companies would have considered it too risky to allow an unrestricted right to substitute another individual and at the very least would have wanted to exercise control to ensure that the service was provided in such a way as to be in keeping with its brand and standards.

The way forward for employers….

Employers will need to keep control to a minimum, both in the contract and in reality, to protect against a finding of worker status, rather than self-employed. The tribunals are increasingly critical of arrangements that disguise workers as self-employed individuals.

Against this background, it may be that, ultimately, employers will be vulnerable to a finding that their contractors are actually deemed to be ‘workers’ if they require their contractors to meet their standards and perform the work required of them, whether this is reflected in the contractual documentation or simply in the day-to-day working arrangements.

Therefore, employers should take care and reconsider how they classify those who work for them. If in doubt it will be important to make allowances for holiday pay and compliance with the national minimum wage – especially in light of the recent ruling that tribunal fees are unlawful because this could well see a rise in the number of claims lodged by workers in respect of their employment status.

October 4

How to manage annual leave: five common employer pitfalls

Mismanagement of annual leave can have a dramatic impact on a company’s business, as demonstrated by Ryanair’s cancellation of hundreds of flights after it admitted “messing up” the planning of pilots’ holiday. Where do employers commonly get annual leave wrong?

1. Not encouraging employees to take annual leave across the leave year
Allowing staff to build up too much annual leave and not spread out their holidays over the year can be a major problem for employers. This can occur where there is an excess of work to do or where a business is struggling – in either case employees may feel that they are simply not in a position to take annual leave at certain times during the year without putting their job at risk.

Employers should therefore encourage employees to plan and take annual leave. This will prevent the workforce from building up an excessive amount of leave to take at the end of the leave year which is always tricky for a business to navigate through. It will also ensure that employees take proper breaks through the year thus reducing the risk of increased absenteeism due to stress and other factors caused by over work.

Typically, the responsibility for monitoring annual leave is allocated to line managers, who should periodically check their employees’ annual leave balance and remind staff that they need to use the holiday up by the end of the leave year.

2. “Buying out” employees’ annual leave entitlement

An employer may be tempted to offer staff a cash substitute in return for giving up their annual leave entitlement, for example to solve a staffing crisis, complete a big project, or tackle a build-up of accrued but untaken holiday across its workforce.

However, it is unlawful to pay employees in lieu of their minimum statutory annual leave entitlement except on termination of employment. When an employee leaves a job part way through the holiday year he or she will be entitled to be paid for any accrued statutory holiday not taken at the date of termination.

3. Allowing employees to carry over excessive amounts of holiday

The general rule is that your basic statutory holiday entitlement under the EU Working Time Directive (four weeks of holiday) must be taken during the holiday year. Otherwise it will be lost.

The only exception is if you are unable to take your holiday because you are sick, injured, pregnant or on maternity leave. In these circumstances, you can carry forward your holiday into the next holiday year.

If you are entitled to more than the statutory minimum amount of paid holidays (in the UK all employees are automatically entitled to a minimum of a further eight days) then you may be able to carry the extra days forward – or at least some of them. This depends upon your contract of employment which should clearly state whether or not you are allowed to carry over accrued but untaken days holiday from one holiday year to the next, if so how many, and whether they have to be taken say within the first quarter of the next holiday year.

4. Allowing too many employees to take leave at the same time

One of the biggest dangers for employers is the knock-on effect on the business of allowing too many employees to take time off during particular periods, typically the summer or at Christmas.

Line managers can sometimes be reluctant to turn down employees’ holiday requests, particularly if an employee has already planned a trip, but they should be reminded that employers are not obliged to agree to a worker’s request to take holiday at a particular time, unless the employment contract provides otherwise.

Employers should have a clear policy on holiday requests (typically, a “first-come, first-served” approach). Line managers should be brave enough to turn down holiday requests (with the correct notice) when the timing of leave would cause the business difficulties.

5. Not paying employees the right amount during annual leave

In recent years, perhaps the single biggest employment law headache for UK employers has revolved around the calculation of holiday pay – namely the fact that it is no longer permissible to calculate holiday pay on the basis of an employee’s basic pay only.

Case law has established that pay during annual leave should now include other payments such as overtime pay (both compulsory and voluntary), commission, standby/call-out allowances, shift premia and travel allowances.

Employers need to decide on a sensible approach to holiday pay calculations, particularly the length of time used to calculate the average (with 12 weeks being a popular suggestion) and what allowances should be included (if in doubt, include it). A holiday pay miscalculation across the workforce could be costly in the long run.

Managing annual leave: do’s and don’ts for line managers

1. Do encourage staff to submit dates for their holiday as far in advance as possible.
2. Do review regularly whether or not employees have taken, or at least planned to take, some of their holiday leave.
3. Do remind employees periodically how much annual leave they have outstanding.
4. Do ask any employee who has not taken any holiday or submitted any holiday dates by for example the middle of the holiday year to nominate holiday dates as a matter of urgency.
5. Do ensure that holiday leave is planned in such a way that the department has adequate cover at all times.
6. Do be proactive in the management of holiday.

7. Don’t leave the matter of holiday to chance.
8. Don’t take the view that it is up to each individual to decide whether or not he or she wants to take holiday.
9. Don’t wait until near the end of the holiday year before reviewing whether or not employees have taken all their holiday.
10. Don’t give in to employees’ requests for pay in lieu of holiday.
11. Don’t make staff feel guilty about taking holiday.

OLDER OLDER 1 2 5 6