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    <span class=October, 2016" />

    uber

    The Employment Tribunal has now handed down its decision in the case brought by drivers against the company Uber. The decision confirmed that the two drivers who brought the cases are ‘workers’ within the meaning of the Employment Rights Act 1996, and are not ‘self-employed’.

    The Uber concept is essentially a taxi service that is provided through a mobile app. In the Employment Tribunal’s view, any driver who has the app switched on, is able and willing to accept assignments, and if within the territory in which he or she is authorised to work, is then working for Uber under a worker contract.

    The ruling means that Uber drivers will be entitled to a limited number of employment rights (similar but less than those afforded to employees) which will include:

    • the national minimum wage (and the national living wage),
    • 5.6 weeks paid annual leave each year,
    • a maximum 48-hour average working week, and rest breaks,
    • protection of the whistleblowing legislation.

    As the drivers are workers, and not employees, they do not have entitlement to:
    • the ability to claim unfair dismissal,
    • the right to a statutory redundancy payment,
    • the protection of TUPE, if Uber sells its business.

    This decision is likely to be appealed further to the Supreme Court as its ruling will have implications on many workers in the ‘gig economy’. (The ‘gig economy’ is the term now commonly being used to describe an environment in which temporary positions are common, and where organisations contract with independent workers for short-term engagements).

    The implications of this decision……

    If you are engaging people on a ‘self-employed’ basis, ask yourself the question, are they a worker? Or simply ask us at Peach Law.

    This is an interesting decision and we do not predict this is the end of the Uber case… Peach Law will continue to update on this case as any developments arise.

    shared-parental-leave

    Legislation on shared parental leave and pay was introduced in early 2015, the legislation gives Mothers the option, and the right to transfer leave due after the birth of their child, to their partner if they so wish.

    The Glasgow Employment Tribunal has now heard the first case which has dealt with this issue, regarding a Father who was discriminated against by his employer.

    The case, ‘Snell v Network Rail Infrastructure Limited’, heard how the terms of a ‘family friendly policy’ in place at Network Rail indirectly discriminated against Mr Snell, a Father, as he was only able to receive statutory shared parental pay whereas, Mrs Snell, the Mother was able to receive full pay during the shared parental leave.

    Background
    In this case, Mr Snell, the Claimant and a Father, pursued a case against his employer, Network Rail (the Respondent) citing that their policy on shared parental leave and pay, discriminated against men on the basis that Mothers were entitled to enhanced shared parental pay, while Fathers were entitled only to the statutory pay.

    Both Mr and Mrs Snell were employed by Network Rail, Mr Snell wished to take 12 weeks leave and Mrs Snell, 27 weeks leave. Prior to starting his claim, Mr Snell raised a grievance in respect of what he perceived to be sex discrimination, this was rejected by Network Rail and Mr Snell commenced a claim at the Employment Tribunal.

    Before the full hearing Mr Snell withdrew his claim for direct discrimination and Network rail agreed not to contest the claim of indirect discrimination, which meant that the Tribunal could focus its attentions on what remedy to award.

    The Claimant was awarded approximately £25,000 including an award for injury to feelings and for future loss, which reflected the difference between statutory shared parental pay, and what the Claimant would have received if he had received the enhanced level of pay as a Mother would have.

    Employers take note…
    This case provides guidance to employers on a relatively new piece of legislation. Employers should review their policies and ensure that men and women are treated equally and not discriminated against.

    Network rail has reportedly now changed its family friendly policy to state that parental leave is only paid at the statutory rate for all employees. Employers should therefore consider any policies currently in place and the wording so as to avoid any potential claims of discrimination wikipedia reference.

    Please contact Lindsey or Sarah on 0161 478 3800 or on hello@peachlaw.co.uk should you wish to discuss shared parental leave further or your family friendly policies.

    bored-at-work

    Are your employees unhappy at work? What signs have you seen of staff being uninterested? What can you as a business do about it?

    Ensuring that your employees are fully engaged and you are getting the best out of them can be tricky for most businesses. A disengaged workforce can cost a business a fortune in terms of lack of productivity, costs associated with recruitment and not to mention the employer branding and reputation in the market.

    Here are some quick tips for you to think about on how you can increase employee engagement;

    1. What is it?
    What does employee engagement mean to you and your business? What does it look like? The Chartered Institute of Personnel Development (2005) say that “typical phrases used in employee engagement writing include discretionary effort, going the extra mile, feeling valued and passion for work”. Make sure you have a clear idea about what you want from your employees.

    2. Leaders

    The leaders of the business need to …

    Click here to receive the full Top 10 tips on Employee Engagement via email, free!

    lock

    The Court of Appeal has handed down its decision in the case of ‘British Gas -v- Lock’. This is a fairly long running case and it is significant for employers with regards to how holiday payments are made to employees. The case was previously heard at the Employment Tribunal, the Employment Appeals Tribunal and now the Court of Appeal, with each forum concluding that commission payments should form part of holiday payments.

    The facts of the case
    Mr Lock was a salesperson earning a basic salary with variable commission. Commission was payable to him when a customer started to purchase their gas from British Gas, this meant that no commission could be earned whilst Mr Lock was on holiday, which in turn meant that he would lose income. Mr Lock pursued a claim for unlawful deduction of wages in the form of unpaid holiday pay, which was successful in the Employment Tribunal, and also on appeal at the Employment Appeals Tribunal.

    The Law
    Article 7 of the Working Time Directive provides that member states must ensure that workers have the right to at least four weeks’ paid annual leave, it does not however, specify how statutory holiday pay should be calculated, which in theory is left to national legislation to decide.

    The European Court of Justice held that “paid annual leave” in Article 7 means that workers on holiday should receive their “normal remuneration” and this includes commission payments.

    The Court of Appeal’s decision
    The latest decision in this case repeats the judgments previously handed down, namely that commission payments are payable. Therefore, nothing has changed!

    The overall outcome……Good news for Employees?
    This case is important for any employer that operates a commission scheme, or regularly makes other payments in addition to basic salary, for example overtime. The outcome confirms that when employers calculate holiday pay they should note that workers are entitled to be paid a sum in respect of any commission, or other elements they would have earned whilst working if they had not been on holiday.

    Unfortunately, when it comes to guidance from the Court as to how an employer should calculate this sum, none was actually provided…. so we shall have to watch this space on any guidance to come at a later date. Peach Law shall provide you with any updates once available.

    Should you require any advice on holiday pay please do not hesitate to contact out legal team on 0161 478 3800 or on hello@peachlaw.co.uk

    agency-pic

    The EAT has heard the case of ‘Sandle -v- Adecco’ and has answered no.

    The background
    In this case, the Claimant, Ms Sandle was an agency worker employed by the Respondent, Adecco, a recruitment agency that provided temporary agency workers to its clients. Ms Sandle was assigned to a company who due to concerns over her performance decided to terminate her assignment. The company advised Adecco of this and gave Ms Sandle one month’s notice. Adecco did not take steps to find other work for Ms Sandle, and they did not appear to make much effort to contact her, as they assumed that she was not interested in further agency work. Ms Sandle, did not contact Adecco at this time in respect of alternative work.

    Ms Sandle chose to bring a claim for unfair dismissal at the Employment Tribunal against Adecco.

    The outcome
    The Employment Tribunal found that there had been no dismissal as Adecco had done nothing to communicate a dismissal to Ms Sandle. Ms Sandle chose to appeal this decision.

    On appeal, the Employment Appeals Tribunal (EAT), agreed that an employer does not need to directly communicate the termination of a contract of employment to an employee, and it can in fact be implied, for example, by a failure to pay the employee, by issuing the employee with their P45, or by ending the employee’s current role and offering the employee an alternative role. The EAT did confirm that when terminating a contract of employment there must be a form of communication and the employee must be made aware of this.

    In this case there was no such communication and therefore, Ms Sandle’s appeal failed.

    Point to note…
    This is in an interesting case as there was no clear communication of the employment terminating by Adecco to the individual. Adecco completed a P45 for payroll purposes, but it did not send that on to the individual in this case. If the termination had been communicated to the individual and for example the P45 had been sent on to her, the outcome of this case could potentially have been different for the Agency involved.

    Should you wish to discuss any matters regarding agency workers or the termination of contracts of employment, you should contact one of our experienced legal team on hello@peachlaw.co.uk or on 0161 478 3800.

    mind

    As it is World Mental Health Day we look at what you as a business can do to support employees.

    Did you know that 1 in 4 people will suffer from mental health? It is an important issue that struggles to get talked about due to the stigma attached to it.

    Here at Peach we have put together top 5 tips on managing wellbeing in the workplace.

    1. Embed a wellness culture
    Employee health and wellbeing should be high on the agenda. There should be no shame in talking about mental health. Think about health and wellbeing programmes where employees can voice their ideas and are listened to. Employees should not be discriminated against should they have a mental illness.

    2. Training
    Management training as well as Company-wide training would further show the company’s commitment to tackling health and wellbeing. Training on stress management techniques will encourage employees to recognise their own stress levels and support in managing it themselves. We would advise businesses to train managers in spotting signs including increase in absence, poor performance or moody behaviour and monitoring these behaviours.

    3. Influence from Managers
    Managers have a great influence on the wellbeing of employees, factors could include; workload, work variety, work relationships, involvement, communication, spot signs of bullying, sense of purpose and stress. Businesses should support Managers in managing in times of change and challenge to reduce the negative effect that it may have. Managing this effectively can increase employee engagement.

    4. Initiatives
    There are plenty of initiatives that businesses can adopt to support employees’ wellbeing such as;
    •Promoting healthy eating,
    •Encouraging employees to take their entitled breaks- it can be too easy to work through lunch,
    •Promote exercise- walking around at lunch time, cycle to work schemes, gym memberships,
    •Employee assistance programmes can provide counselling and advice,
    •Promoting work/life balance- flexible working.

    5. Communication
    Communication is paramount. However, do not push an employee to talk about something that they are clearly uncomfortable with. Offer them options and be available when they are ready.
    When businesses are going through change, communication can take a back seat leaving employees wondering and worrying about what is happening, is their job ok? Always communicate even if there is nothing to communicate, it is important to instil trust and respect from the employees.

    Would you like support in promoting a wellness culture in your business? We can also carry out an audit to see where certain HR processes can affect an employee’s wellbeing. Contact one of our HR Specialists via hello@peachlaw.co.uk or call 0161 478 3800.

    alan-sugar

    What is best practice when it comes to writing a job advert and trying to attract the very best possible candidates for a role?

    There are some common pitfalls when advertising for potential, new staff, and it is important to ensure that employers do not fall foul of the Equality Act 2010 when advertising. Legally there is no set process to follow in terms of what can and cannot be put in to an advertisement, therefore an employer must be mindful as to whether a job advertisement could be perceived as discriminatory on the grounds of a protected characteristic (sex, race, disability, religion or belief, sexual orientation, gender reassignment or age).

    Employers should be aware of both directly discriminating against applicants and indirectly discriminating against applicants. Both are defined within the Equality Act 2010.

    Direct discrimination occurs when an individual treats another individual less favourably than he would treat others due to one or more protected characteristic. Therefore, job adverts should not for example state that they only wish to receive applications from people who match a specific criterion, which would exclude others who do not match that description, i.e. a 25-year-old, Italian woman.

    Indirect discrimination occurs when an organisation’s practices, policies or procedures have the effect of disadvantaging people who share certain protected characteristics. An example could be advertising a job where all applicants must have ten years’ experience in the field, thus a younger person could be well qualified, but not eligible for the job.

    We have set out some useful tips on what to avoid below, which employers should consider when preparing a job description advertisement…

    Avoiding sexual discrimination
    An employer in most circumstances can not specify which gender can or cannot apply for a job.
    There are certain roles where there is a genuine occupational need for an employee to be of a certain gender, such as within single sex institutions like hospitals and prisons. We would recommend that job titles are not gender specific for example ‘salesman’ or ‘waitress’, and alternative wording such as ‘salesperson’ or ‘waiting staff’ be used.

    Avoiding age discrimination
    Job descriptions should not stipulate specific age requirements, or upper or lower age limits. Employers should also be mindful of using vocabulary which could have age related connotations such as ‘youthful’, ‘mature’ or ‘energetic’. Such terms could be seen to be excluding individuals of certain ages.

    Avoiding racial discrimination
    In some ways this can be seen to follow the same principles as sex/gender discrimination, and again in some situations being of a certain race can be a genuine occupational requirement. If language skills are required for a particular role we would suggest that an advert should be appropriately worded as to not exclude certain races, i.e. if the job requires an applicant who can speak French the advert should not request French applicants but French speaking applicants.

    Avoiding disability discrimination
    It’s important for all businesses to ensure disabled candidates have as many opportunities to join their company as non-disabled applicants. This should be noted when preparing a job advertisement but also for the entire recruitment process, including making necessary adjustments for interviews such as having wheelchair access.

    Ultimately, the choice of words used within a job advertisement is vitally important not only to attract the right candidates to a role, but also to ensure that certain prospective candidates are not deterred from applying in a manner which could be viewed to be discriminatory. Before you post your job advert, we suggest that you consider if the wording could be construed as either directly or indirectly discriminatory. Further, we would suggest that employers consider where they place job advertisements, for example online and/or in newspapers, as this could also be construed as potentially discriminating against certain individuals.

    If you would like to discuss any of the above further with our legal team or HR specialists, please contact us on hello@peachlaw.co.uk or on 0161 478 3800.

    big-sam

    After only approximately 6 weeks in charge, Sam Allardyce’s resignation as the Manager of the England National football team has dominated recent headlines. The resignation came following undercover reporters revealing allegations against him relating to player transfer rules.

    From the press reports, it would appear that the allegations brought against Sam Allardyce could amount to gross misconduct, which in turn could have led to his dismissal. As with any employee found guilty of gross misconduct, it is possible that an employment relationship can be terminated with immediate effect, and without notice pay as a result.

    It is reported that the Football Association (FA) and Sam Allardyce mutually agreed to terminate his contract with immediate effect, soon after the allegations surfaced. It has not been reported as to how exactly the employment relationship terminated but one possible, and likely option would be that the parties entered in to a settlement agreement (previously known as a compromise agreement).

    Could Sam pursue an Employment Tribunal claim?
    All employees (including the England Football Manager!) have a right not to be wrongfully or unfairly dismissed. The possible legal routes for an employee such as Sam would be:
    i.) A claim for wrongful dismissal – without seeing Sam’s contract of employment and without being fully aware of the evidence available, it is difficult to provide definitive advice, however, in this scenario if Sam had been found guilty of gross misconduct, due to acting in a manner which went to the heart of his contract of employment, and broke the relationship of trust and confidence between himself and his employer, it is unlikely that he would be legally entitled to any notice payment, and therefore would not have a claim for wrongful dismissal.
    ii.) A claim for unfair dismissal – Sam had only been in the role for approximately 6 weeks at the time of termination, as with all employees an individual needs to have 2 years’ continuous service before they are entitled to raise a claim of unfair dismissal against their employer. Unless the individual can prove that their dismissal was discriminatory, and related to a protected characteristic, a claim for unfair dismissal would fail.
    iii.) A settlement agreement – if, as it appears from the press, Sam has entered in to a settlement agreement with the FA, the terms of such an agreement would prevent Sam from pursuing any legal claims against his former employer, as by signing the agreement he has effectively waived his rights to pursue any possible claims.

    Therefore, and in light of the above, it is unlikely that Sam would have any viable claim to pursue in an Employment Tribunal, and if he did pursue a claim, the likelihood of success would be low.

    The outcome
    Press reports suggest that an out-of-court settlement (settlement agreement) was reached to resolve this matter. A settlement agreement is a legally binding contract made between an employee and employer, either during or after employment, which formally agrees the leaving terms between the parties and prohibits the employee from bringing legal action against the employer at a later date. It is standard practice for agreements to have a confidentiality clause which will prevent either party divulging details of the agreement, including any payment, to third parties. Under the agreement the parties will usually also be obligated not to make any derogatory or disparaging statements about the other party.

    Settlement agreements are normally used to bring an employment relationship to an end, in a mutually agreed way. They are often used in situations where an employer and employee feel that their employment relationship is no longer working and a clean break is the best way to proceed. If you would like further details in respect of settlement agreements, or on how to end an employment relationship, you should contact Lindsey or Sarah in our legal team on hello@peachlaw.co.uk or on 0161 478 3800 for further assistance.

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