Miss Hounga, a Nigerian national, participated in a plan hatched by members of the Allen family to secure her illegal entry to the UK. Once in the UK, Miss Hounga, who was 14 at the time, commenced working illegally for Mrs Allen as a housekeeper/au pair. She had been promised a wage of £50 per month and the opportunity to go to school. However, over a period of two years, the promised wage and education never materialised and instead Miss Hounga was met with “physical and verbal abuse”, eventually being thrown out of the house. She was rescued by Social Services and commenced tribunal proceedings for breach of contract, unpaid wages and race discrimination. Her claim for race discrimination was on the basis that her dismissal was an act of race discrimination on grounds of her nationality.
Friday, 29 August 2014
TUPE* protects employees when the business or undertaking they work for transfers to a new
Following a consultation last year, the government decided to relax the information and consultation obligations for small businesses, with the change taking effect yesterday – 31 July 2014.
For TUPE transfers taking place on or after 31 July 2014, micro-businesses (those with fewer than 10 employees) can inform and consult directly with individual affected employees so long as there are no existing appropriate representatives (i.e. no recognised trade union or suitable existing employee representatives) and the employer has not invited the employees to elect representatives.
Despite requests during the consultation process, the exemption does not extend to larger workforces, even if fewer than 10 employees are affected by the transfer.
our thanks to Kathleen Morrison at BRODIES for this read more
Thursday, 28 August 2014
Shared parental leave regulations will come into force
My Comment: This simply marks the inexorable march of employment rights, industry commentators have said the take up will be slow, as the loss of the major family income would be a burden. (partners would only be able to claim SSP).
Yes, according to the Employment Appeal Tribunal in the case of Dominique v Toll Global Forwarding Limited, even though the end result of dismissal would have been the same.
Mr Dominique was disabled and had previously suffered a stroke. As a result, he frequently made mistakes at work and generally struggled with computers.
Mr Dominique was selected for redundancy on the basis of his poor productivity and accuracy; their selection criteria.
Mr Dominique brought claims for unfair dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments to the selection criteria applied to him.
The EAT decided that the productivity and accuracy criteria placed Mr Dominique at a substantial disadvantage, and would therefore warrant a ‘reasonable adjustment’ for discrimination to be avoided. A reasonable adjustment would have been to adjust the scores. The employer had not taken this step, and they were therefore liable for discrimination.
Implications for businesses
This case really does highlight the fact that an employer should give full consideration to all reasonable adjustments to ensure that its redundancy process is not discriminatory. Of course, this does not mean automatically putting disabled employees to the top of the group.
My Comment As I 've said before, always take advice, consider your options, before you make any decisions on an employee.
Paramedics ‘shackled’ to their place of work while on call were entitled to compensatory time off
It is not uncommon for employers to have staff ‘on call’ – in other words, available at all times to deal with any emergencies. Over the years case law has developed to give protection to employees who spend regular amounts of time on call, especially with regard to ensuring they receive adequate rest periods in compensation.
Recently, courts have focused on the issue of whether employees who are on call and required to be present at a specific location, but who do not have any tasks to perform and often spend the time asleep, are working within the meaning of the Working Time Regulations 1998.
A recent case, Truslove v Scottish Ambulance Service, concerned two ambulance paramedics. Sometimes they were required to provide nightly relief cover at different ambulance stations, away from their home base. During this time, the paramedics were required to stay at accommodation of their choice within a three-mile radius of the relevant station as they had a target response time to call-outs of three minutes. The location of the stations meant they couldn’t stay at home. The paramedics claimed this on-call time was working time within the meaning of the regulations and that they were entitled to a rest period in compensation.
The employment judge considered the difference between being on call but free to be in any location, and being on call but confined to a specific location. The judge held that because the claimants in this case were not confined to one location, they were at rest when on call and the periods spent on call did not, therefore, constitute working time for the purposes of the regulations. The claimants appealed.
The Employment Appeal Tribunal looked carefully at the case law in this area and held that the tribunal had been wrong to find that the paramedics were at rest while on call.
The EAT noted that case law provides that the focus should be on whether the place where the employee happened to be when on call was where the employer required that employee to be. If employees are required by the employer to be away from home, for example, or even to remain at home or within a very close distance from the workplace, the time spent during this period is not wholly their own - it is under the control of the employer. The relaxation available during genuine rest periods is, therefore, unavailable when employees remain ‘shackled’ to a particular location and under an obligation to provide a response to their employer’s requests.
The EAT held that, in this instance, the fact that the paramedics lacked the freedom to be anywhere other than within a three mile radius of the station was the determining factor in whether their on-call time was working time. It allowed the appeal.
This case is the most recent in a line of cases focusing on the status of on call workers, with the courts and tribunals widening the scope of ‘working time’ further on each occasion. The fact that the EAT referred to the employees as being 'shackled' (even if they were, for example, in the cinema) is an indication of the approach taken in these cases.
Employers need to consider carefully the restrictions they place on employees while they are on call, even if they are not required to remain at one specific location. It is clear that the courts will take any infringement on an employee’s rest period seriously and may require further remuneration and/or compensatory rest periods to be provided in relation to any on-call periods.
My Comment: Well of course they're at work, I'm only surprised that this has to be debated, if an employer is paying someone to "be available", then they're working. If that employee fails to respond when called, say, gone to the pictures, got drunk, they would be disciplined, which means they're at work!
Monday, 4 August 2014