Recently, the Supreme Court decided that a plumber was a ‘worker’ despite his contract stating he was an independent contractor.

The Court provided that his personal service to do the job was of importance to their decision together with a limited right of substitution. The Court came to the conclusion that the overall facts of the case pointed away from the plumber being regarded as a truly independent contractor, due to Pimlico Plumbers exercising tight control over the plumber. A few considerations the Court relied upon were:

• The plumber wore a uniform;
• Had an ID card;
• branded van requirements; and
• severe payment terms.

The Pensions Regulator announced that two directors and five senior staff of Workchain Ltd have pleaded guilty to unauthorised access to computer data. This will be the first time the Regulator has prosecuted such offence. The staff impersonated temporary workers using their online pension system in order to opt them out of their NEST pension scheme.

UK Visas and Immigration has recently published a report detailing the total number of fines for illegal working given to employers in the United Kingdom in 2017.

The report provides that there has been an increase of 17% of illegal workers in 2017 in comparison to previous years. As a result, a total of over £11.5 million was issued as fines to employers across the UK.

The Government Equalities Office recently published guidance on dress codes and sex discrimination.

The guidance details:

• The legal responsibilities of employers in relation to dress codes in the workplace;
• Employee entitlements; and
• Advice to employees in relation to infringement of their rights.

The guidance only covers employee’s rights, and does not deal with the rights of ‘workers’. As a result, the guidance has been criticised due to its ambiguity and there is little covered in relation to dress codes issues such as religion, health and safety, transgender and also the need of reasonable adjustments for disabilities.

Link to guidance: https://www.gov.uk/government/publications/dress-codes-and-sex-discrimination-what-you-need-to-know

In a recent case, an employee had a disability causing high absence levels over the years. As a result, the employer allowed the employee greater periods of sickness absence than those permitted under their sickness absence policy.

Nevertheless, when the employees’ absence reached 60 days in a 12 month period the employer considered that it was appropriate to issue a written warning. This also meant her contractual sick pay ceased for future absences.

The employer said that they were pursuing the legitimate aim of raising attendance levels throughout the company and seeking to improve her attendance.

The employee claimed disability discrimination.

Although it was agreed that the employer had a legitimate aim the tribunals decided that the written warning was not a proportionate means of achieving a legitimate aim. The Company was unable to justify the how the issue of a written warning would benefit their intention of raising the employee’s attendance.

This case serves as a reminder of the sensitivities of dealing with disability-related absence.

The Department for Business, Energy & Industrial Strategy has revealed the worst reasons companies have provided as reasoning for not appointing more women to their boards. These reasons include:

• “There aren’t that many women with the right credentials and depth of experience to sit on the board – the issues covered are extremely complex”.

• “I don’t think women fit comfortably into the board environment”.

• “Most women don’t want the hassle or pressure of sitting on a board”.

• “All the ‘good’ women have already been snapped up”.

• “We have one woman already on the board, so we are done – it is someone else’s turn”.

 

The question of whether travel time to or from work or between places of work is considered working time is increasingly being asked. This is mainly as a result of the absence of guidance in relation to the above issue in legislation.

Some guidance in relation to the issue can however, be found on GOV.UK which provides that “time spent travelling for workers who have to travel as part of their job, e.g. travelling sales reps or 24-hour plumbers” can be deemed ‘working time’, however, “normal travel to and from work” and “travelling outside of normal working hours” are not considered as ‘working time’.

In relation to workers without a fixed place of work, the European Court of Justice decided in a recent case that the time that they spend travelling between their homes and the premises of the first and last customers was “working time”.

In a separate case, the Court of Justice of the European Free Trade Association considered whether the time of a police inspector, that was based at a particular police station, and was travelling to and from temporary workplaces for specific assignments was considered working time. The court decided that time spent travelling outside normal working hours to or from a location other than a worker’s fixed workplace in order to carry out his duties constitutes “working time”.

Eligible parents can take shared parental leave (SPL) of up to 50 weeks and shared parental pay (ShPP) of up to 37 weeks. 

The question of whether an employer that enhances maternity pay for women would discriminate directly or indirectly against men if it failed to enhance ShPP in a similar manner was uncertain.

In a recent case, an Employment Tribunal decided that a male employee had been directly discriminated against on the grounds of his sex. This was due to the employer’s refusal to provide equal entitlements to the male employee in relation to ShPP as those provided to mothers. The Employer appealed the Tribunals decision.

The Employment Appeal Tribunal upheld the appeal as it decided that the tribunal’s conclusion depended on an incorrect finding that the purpose of maternity leave and pay is to provide for the care of the child.

Legislation draws a clear distinction between the rights provided to pregnant workers and those who have given birth or are breastfeeding, and the rights given to parents of either sex to take leave to provide care for their child.

The Employment Appeal Tribunal therefore concluded that the male employee was not discriminated against on the grounds of sex.

A report by the Equalities and Human Rights Commission (EHRC) entitled “Turning the tables: ending sexual harassment at work” has recently been published.

The report recommends legal changes in order to provide improved protection to the victims of sexual harassment at work. The report has been published in the wake of a number of recent high-profile sexual harassment allegations in the news.

Recommendations within the report include a new code of practice on preventing harassment, longer tribunal time limits for harassment claims, a requirement for employers to publish their sexual harassment policies online, a mandatory duty on employers to take reasonable steps to prevent workplace sexual harassment – and this would be enforceable by the EHRC and the reintroduction and improvement of the repealed Equality Act provisions dealing with third party harassment. The report also includes statutory questionnaires and tribunals’ power to make recommendations affecting the wider workforce.

The report also recommends a legislative ban on the use of non-disclosure agreements or confidentiality clauses to prevent employees speaking out about future acts of harassment or discrimination, and a code of practice dealing with such clauses in settlement agreements for past acts.

It has recently been reported that Wagamama has been required to repay £133,212 to 2,630 workers because of a requirement to wear casual black jeans or a skirt which was not reimbursed. Also, TGI Fridays have reportedly been required to repay £59,348 to 2,302 workers in relation to a requirement to purchase black shoes as part of a uniform.

So where do businesses which do not have a formal uniform but do have a strict dress code (and may therefore be classed as a reduction for the purposes of National Minimum Wage (NMW) stand?

Where an employee is required by their employer to wear a “uniform”, the cost the employee incurs in buying the required uniform is “expenditure in connection with the employment”, and therefore reduces remuneration for national minimum wage compliance calculation purposes.

This appears to be the case irrespective of whether the employee buys the uniform from the employer or a third party, and regardless of whether the uniform is a uniform in the traditional sense (such as a branded outfit) or a more general requirement to wear a certain colour or type of clothing – this is even if it is something that the employee may be likely to already own and which could reasonably be worn outside of work.

Acas has published statistics on its early conciliation service covering the period April to December 2017. It has been reported that the number of notifications received by Acas between April 2017 and the end of July 2017 were consistent with those received throughout the course of 2016-2017 (with Acas receiving approximately 1,700 notifications per week).

However, since the Unison decision, which declared employment tribunal and employment appeals tribunal fees unlawful, the number of notifications has increased to 2,200.

The statistics show that since the end of August, ET1 claim form receipts and early conciliation notifications have increased by 57% and 25% respectively when compared to the same period in 2016.

A quarterly report has been issued by UK Visas and Immigration, which shows the total number of fines for illegal working given to employers in the United Kingdom.

The report also shows that 826 illegal workers were found across the UK between 1 July and 30 September 2017, a 24% increase when compared to figures released in the previous quarter. 600 penalties were issued to employers amounting to just over £9.5 million in fines being issued across the UK.

Employers named and shamed as workers set to receive back pay amounting to just over £1 million

180 employers (including restaurant chains such as Wagamama and TGI Fridays) have failed to pay the minimum wage to its employees, and will now have to pay £1.1 million to workers and £1.3 million in fines.

In the latest of the government’s routine “naming and shaming” round, approximately 9,000 workers are expected to receive back pay in the forthcoming months. It has been reported that employers in the hairdressing and hospitality sectors were the worst offenders, with total minimum wage arrears amounting to over £500,000.

Since its introduction, the naming campaign has resulted in £9 million in minimum wage arrears being identified and over 1,700 employers have been fined £6.3 million.

Once caught, employers would not only be forced to pay outstanding arrears, but would also be fined up to 200% of wages owed.

Mrs Lofty was dismissed following absences from work, at least some of which were related to treatment for her pre-cancerous condition. In proceedings for alleged disability discrimination, it was concluded by an employment tribunal that she did not have cancer within the meaning of the Equality Act 2010 (EqA 2010) and therefore did not benefit from provisions that she had a deemed disability.

The Employment Appeal Tribunal disagreed.  It said that the evidence before the tribunal explained that “pre-cancer” may be regarded as medical shorthand for a particular stage in the development of cancer; it does not mean there is no cancer.

In light of this decision, an employer should be extremely cautious before concluding that a condition labelled as “pre-cancerous” does not mean “cancer”. It would need cogent medical evidence to that effect.

A gangmaster has been prosecuted for modern slavery offences after bringing Eastern European workers to the UK and paying them less than £2 an hour.

The men were transported to work 12-hour shifts at a food processing factory in Staffordshire. Whilst the gangmaster received reasonable income for the men’s employment, he only paid the men £20 for a day’s work.  The five victims were also kept in cramped conditions in a room in the man’s home in Birmingham.

The gangmaster initially entered a not guilty plea; however, he changed his plea during his trial at Birmingham Crown Court. He was sentenced to five years’ imprisonment for human trafficking and fraud offences.

HMRC has confirmed that the payment in lieu of notice tax changes made earlier this year look to both the date of payment and the date of termination, meaning that those changes have effect only for payments made in, and relating to termination occurring in, 2018-19 and subsequent years.

HMRC also confirms that post-employment notice pay (PENP) calculations should not be applied to statutory and non-statutory redundancy payments.