Wednesday, 30 September 2015

Fit for Work opens for employers

Fit for Work opens for employers          

Employers in England and Wales are able, from today, to refer employees to Fit for Work, the government service set up to help working people on long-term sickness absence.
Fit for Work provides occupational health services to people who have been, or are likely to be, off work for four weeks or more. It is particularly aimed at small and medium-sized businesses (SMEs) that have little or no occupational health support.
Each year, around 870,000 absences in England and Wales last for four weeks or more, according to statistics from the Department for Work and Pensions.
A YouGov poll in 2013 found that 31% of workers were employed by organisations that offered no occupational health support.
Welfare reform minister Lord Freud said: “The longer someone remains out of work due to sickness, the greater the cost to their career, income and future earnings.
“Fit for Work will ensure that people get the right help when they need it to get back to work so they can continue to support themselves and their families.”
Fit for Work is also available to larger employers, where it can help complement existing occupational health provision.
David Frost, the former director-general of the British Chambers of Commerce, who authored the independent review of sickness absence with Dame Carol Black in 2011, commented: “Employers have asked for a service that will provide rapid access for their employees to get practical advice on the support they need to make a return to work.
“The evidence is clear – the longer a person is out of work the harder it becomes to make a successful return to their job.
“Now Fit for Work has launched, all employees and employers across the country have access to free occupational health advice and support for the very first time. The service will provide much needed support, particularly to small businesses.”
Within two working days of a referral to Fit for Work, the employee will receive an in-depth consultation with an occupational health professional who will explore all the issues that might be preventing a return to work.
This will include work-related and wider personal issues as well as health matters. They will then work with the employee to agree a personalised return-to-work plan.
Research carried out on behalf of Health Management, which is providing the Fit for Work service, showed that more than half of employers said they could do more to support and help employees returning to work after a prolonged sickness absence.
The service is already open in Scotland, but referrals can currently only be made by phone.

My Comment :  I've tried to access this once already for a client,  they certainly don't make it easy! Talk about red tape,   after three days we gave up,  and went back to the tried and tested method of sending the employee to OH,   and paying for a report. 

Holiday pay: tribunal adds wording into UK working time legislation to cover commission

Holiday pay: tribunal adds wording into UK working time legislation to cover commission


On its return from the European Court of Justice (ECJ), the employment tribunal in this important case has read an extra subsection into the Working Time Regulations 1998 (SI 1998/1833) to comply with the Working Time Directive (2003/88/EC).           

Practical tips

This is a desperately disappointing decision for employers hoping for guidance on what reference period they should use when calculating holiday pay for workers on commission.

The decision, which may be appealed, does confirm that the ECJ ruling in Lock can be implemented in the UK without the need for legislative change. Employers should already be looking at their commission schemes to ensure that they comply with the ECJ ruling.

Technically, the principles in this case apply only to workers' holiday pay for the four weeks' annual leave to which they are entitled under EU law. Employers need to consider whether or not it is worth the extra administrative burden to treat the additional 1.6 weeks to which UK workers are entitled under reg.13A of the Working Time Regulations 1998 differently.

Employers can take comfort from the introduction of the Deduction from Wages (Limitation) Regulations 2014, which limit the extent to which backdated claims for deductions from wages can be brought in the employment tribunal in relation to holiday pay claims made on or after 1 July 2015.

Mr Lock works for British Gas as a sales consultant. His role is to persuade business clients to purchase British Gas's energy products. On top of his basic pay, he is paid monthly commission. His commission fluctuates because it is based on the sales that he achieves and he is paid only after the sales contract is signed.

Mr Lock was on paid annual leave from 19 December 2011 to 3 January 2012. During that period, his remuneration comprised his basic pay and the commission that he had earned during the previous weeks. However, Mr Lock did not carry out any work during his period of annual leave, and so he was not able to make any new sales or follow up on potential sales during that period. This affected his pay in the following months. Mr Lock brought a claim in the UK employment tribunal for outstanding holiday pay on the basis that his holiday pay did not reflect what he would have earned from commission.

The employment tribunal asked the ECJ for guidance on whether or not member states should take measures to ensure that a worker is paid in respect of periods of annual leave by reference to the commission payments that he or she would have earned during that period, had he or she not taken the leave.

In Lock v British Gas Trading Ltd [2014] IRLR 648 ECJ, the ECJ concluded that Mr Lock's commission was directly linked to the work he carried out, and so must be taken into account when calculating holiday pay. Despite the fact his commission fluctuated from month to month, it was permanent enough for it to be regarded as a normal part of his salary. However, the ECJ left it to the UK employment tribunal to work out how the ruling should be applied to the UK's method of calculating holiday pay in general, and in Mr Lock's case in particular.

On the return of the case to the UK, the employment tribunal stressed that its decision is not about whether or not commission should be included in a worker's holiday pay. The ECJ has already decided that commission must be included. The tribunal also declined to open up its decision to considering whether or not other forms of remuneration, such as discretionary bonuses, should be included in holiday pay.

The employment tribunal also had the benefit of the Employment Appeal Tribunal (EAT) decision on overtime in holiday pay in Bear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others [2015] IRLR 15 EAT. The employment tribunal said that it saw no difference in principle between regular non-guaranteed overtime and commission. No distinction would ordinarily be made between them in an unlawful deduction from wages claim.

The employment tribunal concluded that words could be read into the Working Time Regulations 1998 to comply with the ECJ's interpretation of the Working Time Directive. The parties settled on the addition of a new subsection (3)(e) (in italics below) in reg.16 of the Working Time Regulations 1998:

"Payment in respect of periods of leave

16 (1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13, at the rate of a week's pay in respect of each week of leave.

(2) Sections 221 to 224 of the 1996 Act shall apply for the purpose of determining the amount of a week's pay for the purposes of this regulation, subject to the modifications set out in paragraph (3).

(3) The provisions referred to in paragraph (2) shall apply:

(a) as if references to the employee were references to the worker;

(b) as if references to the employee's contract of employment were references to the worker's contract;

(c) as if the calculation date were the first day of the period of leave in question; and

(d) as if the references to sections 227 and 228 did not apply.

(e) as if, in the case of the entitlement under Regulation 13, a worker with normal working hours whose remuneration includes commission or similar payment shall be deemed to have remuneration which varies with the amount of work done for the purpose of section 221."

The employment tribunal declined to provide guidance on the correct reference period when averaging Mr Lock's commission to calculate his holiday pay. It is possible that this issue will be considered in any subsequent remedy or appeal hearing.
 
My Comment:    disappointing indeed,   it basically means costs will be going up,   for all of us in the end,  and firms/services whatever,  faced with this additional burden,   will have to put the prices up.   When the present Mrs Murray and I  were first married,  if we wanted a holiday,  we saved up for it! 

Journeys made by mobile workers must count as working time, the European Court of Justice (ECJ) has confirmed today.

Journeys made by mobile workers must count as working time, the European Court of Justice (ECJ) has confirmed today.   
 
The ruling could have significant implications for companies that employ mobile workers who spend a lot of time travelling between appointments.The decision on the case of Spanish security system installation company Tyco Integrated Security SL followed the Advocate General’s opinion on the case earlier this year.
It concerns Tyco’s technicians, who use company vehicles to travel to appointments across Spain. The employer has argued that the first journey of the day (from home to the first appointment) or the last journey of the day (from the last assignment to home) do not count as “working time”.
Instead, they regard this travel time as rest time under the Working Time Directive. The technicians brought a claim, and the Spanish courts referred the case to the ECJ to consider whether the travel time at the start and end of the day was officially working time.
The Court ruled: “Where workers, such as those in the situation at issue, do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time within the meaning of the directive.
It said that not taking the journeys into account would mean Tyco could claim that only the time spent actually installing and maintaining security systems was within the concept of “working time”, and that this would jeopardise the health and safety of its workers.
The ECJ added that, because the workers are “at the employer’s disposal” for the time of the journeys, they act under their employer’s instruction and cannot use that time freely to pursue their own interests.
Chris Tutton, an employment partner at Irwin Mitchell, said that the ruling could mean employers will have to ask staff to opt out of the Working Time Directive’s 48-hour working week.
“Many UK companies do not consider travel time outside normal working hours as working time, but now that the ECJ has said that it should, thousands of companies may need to make changes, for example, by ensuring that assignments at the start and end of the day are near employees’ homes, adjusting working hours generally or asking employees to opt out of the 48-hour working week,” he said.

“If they don’t, employees could quickly exceed the number of working hours that they are legally allowed to work and bosses could therefore soon find that they are operating illegally and at risk of facing costly claims against them.”
Graham Richardson, legal director at Bond Dickinson, said: “Although the ECJ’s decision relates to a claim in the Spanish Court, the case concerns the EU Working Time Directive, on which the Working Time Regulations in Great Britain are based, so the impact on British employers and peripatetic workers could be substantial.”
He added that the ruling could have significant implications on the maximum working week and rest breaks for such staff. “Employers engaging peripatetic workers that may be particularly affected include, for example, employers in the care sector and employers of staff whose primary duties are to carry out customer or client visits which may include, for example, travelling sales representatives and domestic heating engineers,” he added.

My Comment:    this could have massive implications on many sectors, in fact anyone who has workers in vans company cars who must to their first job of the day,  will now be getting paid, simply for getting there,   the effect will be,   companies with this type of operation will be forced to pass on the extra cost to customers.     In effect,    it will effect   all of us,  one way or another!

Wednesday, 2 September 2015

September Edition Employment Law Newsletter

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,
   Here we are in September,    "Bake off"   is under way,   "Strictly"   starts this weekend, and my grandchildren go up to "big school"  next Monday !   Are we in the 9th Month of this year already?  (there'll be Christmas stock in the supermarket next!)   This month sees the firming up of the employment law changes I announced last month,  with the government pledging to get tough over the "living wage",    UNISON  fails at the court of appeal to get the tribunal fees ruling overturned,    House of Lords next or ECJ ?     we'll have to see.
   The care sector has always come under scrutiny for one thing or another,  now it looks like might be again. This is against one of the big players MITIE  who own MiHomecare, over travel time being unpaid.    Watch this space


              Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 
 

First The News:
 Government unveils plans to enforce national living wage
The government has unveiled plans to ensure workers receive the national living wage, and outlined measures to punish employers who do not comply with the new regulations.
The plans include doubling the penalties for non-payment of the national minimum wage and the new national living wage, increasing the enforcement budget, and setting up a new team HMRC to take forward criminal prosecutions for those who deliberately do not comply.
The team of compliance officers will investigate the most serious cases of employers not paying the national minimum wage and national living wage when it is introduced in April 2016. They will have the power to use all available sanctions, including penalties, prosecutions and naming and shaming employers.
Any employer found guilty of flouting the rules will be considered for disqualification from being a company director for up to 15 years.

My Comment,   I covered this a little last month,  see my blog for in-depth detail  here
 


Newsflash:   
Employment Tribunal fees survive Unison challenge

The Court of Appeal has firmly dismissed Unison’s attempt to overturn the Employment Tribunal fees regime. Following the detailed and complex Judgment in the case of R (on the application of Unison) v the Lord Chancellor it appears that the union’s attempt to end Tribunal fees through legal challenge has been unsuccessful.    
 
 

The facts 

When Employment Tribunal fees were first being introduced, Unison endeavoured to challenge their legality but this was rejected as being premature. That legal challenge was re-presented by Unison when the dramatic reduction in the number of Employment Tribunal claims, which had followed the introduction in fees, became evident. These challenges have all now been considered together by the Court of Appeal.
My Comment:  this seems to have dragged on a bit,  it's a bit of a lunch time read, but interesting,  read full article here
 

One of UK's biggest care agencies being sued for paying below minimum wage

One of Britain’s biggest care agencies is being sued for allegedly paying below the minimum wage by refusing to reimburse staff for their travel time between home visits.
 MiHomecare, which markets itself under the slogan “We care about care”, is facing an employment tribunal claim from a former employee who says she often worked 12-hour days for just seven hours’ pay because travel and overtime were not paid.
 The case is the first time a major care provider has been taken to court for its failure to cover travelling between appointments.
MiHomecare is the fourth-biggest home-care services company in Britain, employing around 4,000 staff in 38 branches. If successful, this case could have implications for thousands of its employees, as well as care workers in other companies.
It is estimated that 883,000 people receive care in their own home in the UK with more than 500,000 people employed in the sector. Lawyers say the number of potential claims could run into thousands, costing care providers millions of pounds in unpaid wages.
Caroline Barlow, 56, from Devon, who issued the claim at Bristol Employment Tribunal, worked for MiHomecare looking after elderly, disabled or infirm patients in their homes. Despite the fact that travelling between appointments was an integral part of the job in rural Devon, she was only reimbursed for her petrol and not paid for her time. She reported the issue to HMRC, which is still investigating, but  has now decided to take legal action herself.

My  Comment:    this is a "must read"  for those of you in the care sector,  it's not decided yet of course,  but represents a "shot across the bows"    full article here            and my thanks to "The Independent"   newspaper for bringing this to my attention .
 

And finally tonight!
After the overtime and holiday pay issue over recent months regarding non-guaranteed overtime, there has now been developments regarding voluntary overtime. A Northern Irish court has indicated that voluntary overtime - where there is no contractual obligation on either party to provide or perform it - may fall to be included in holiday pay. Although Northern Irish cases aren’t binding on courts in Great Britain, they can be influenced by them and as it’s the first case on the topic, !’ll be keeping an eye on it.

Travel time for mobile employees e.g. care workers or travelling salesmen has been brought into question recently. The European Court are going to give a ruling soon on whether the first and last journeys of the day i.e. home to first appointment and last appointment back home count towards the minimum rest breaks required by the Working Time Regulations*. If they do, then longer periods of time will be needed between end of shift and start of the next one.

My Comment:  again items to watch,   my thanks this time to  Peninsula Business Services who sent me this update.     find them at :


 


 
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.

Case 370 - Child booster seat unavailable at cinema
Issue

At a recent cinema visit, the enquirer asked for a child booster seat but was told that these were not available due to 'health & safety' reasons.

Panel opinion

This cinema chain usually supplies child booster seats but was in the process of changing out old ones for a new design and did not have any available on this occasion. Instead of explaining this, the assistant resorted incorrectly to a "health and safety" excuse. The company has acknowledged the poor handling and taken steps to avoid this happening again.

Case 368 - A charity shop refused donation of baby bath due to health and safety
 

Issue

A local charity shop refused the enquirers donation of a plastic baby bath because ‘health and safety’ meant that the new purchaser could sue if their baby were injured after slipping in it.

Panel opinion

There are no health and safety rules which would restrict charity shops from accepting items like baby baths for resale. It's also hard to imagine circumstances in which their fear of litigation might manifest itself. They are of course at liberty to set their own policies on what goods they will or will not accept but they can't wash their hands like this and simply point to non-existent "health and safety" rules.


As always my thanks to the HSE site for these stories.    see them at:

 

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2015 paul murray HR consultant, All rights reserved.
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One of UK's biggest care agencies being sued for paying below minimum wage

One of Britain’s biggest care agencies is being sued for allegedly paying below the minimum wage by refusing to reimburse staff for their travel time between home visits.

 MiHomecare, which markets itself under the slogan “We care about care”, is facing an employment tribunal claim from a former employee who says she often worked 12-hour days for just seven hours’ pay because travel and overtime were not paid. 
The case is the first time a major care provider has been taken to court for its failure to cover travelling between appointments.
MiHomecare is the fourth-biggest home-care services company in Britain, employing around 4,000 staff in 38 branches. If successful, this case could have implications for thousands of its employees, as well as care workers in other companies.
It is estimated that 883,000 people receive care in their own home in the UK with more than 500,000 people employed in the sector. Lawyers say the number of potential claims could run into thousands, costing care providers millions of pounds in unpaid wages.
Caroline Barlow, 56, from Devon, who issued the claim at Bristol Employment Tribunal, worked for MiHomecare looking after elderly, disabled or infirm patients in their homes. Despite the fact that travelling between appointments was an integral part of the job in rural Devon, she was only reimbursed for her petrol and not paid for her time. She reported the issue to HMRC, which is still investigating, but  has now decided to take legal action herself.

Ms Barlow typically had eight appointments a day scattered around homes in the South-west – although sometimes as many as 13. “Some days nearly half of my time out of the house was spent travelling between calls,” she said.
“The visits were anywhere between 15 minutes apart and an hour-and-a-half’s drive away from each other.”
She was paid £7.68 an hour, but since she was on the road for many more hours than she was paid, her average wage was pushed below the legal minimum wage (which is currently £6.50 an hour for over-21s).
Ms Barlow left in February after working there for four months.  “It was having a detrimental effect on my health. I often left home at 6am and wouldn’t get back until six at night, but I’d only be paid for seven-and-a-half hours.”

The case also raises questions about 15-minute fleeting care visits, which Ms Barlow said were distressing to deliver because there was no time to check on a patient’s emotional well-being. “I wasn’t prepared to leave a client who was distressed, whether physically or emotionally, but that often meant I wasn’t paid for the extra time I spent with them,” she recalled.
Like her colleagues, Ms Barlow says she was routinely not paid any overtime when visits had to last more than their allocated time. MiHomecare argues this is out of its control because the time slots are set by local authorities.
One of Ms Barlow’s clients was an elderly man whose care needs grew because he became incontinent. She reported this to the office but it did not give her any more than 30 minutes to care for him. This meant that as well as her stated role of giving him medication and feeding him, she had to persuade him to be bathed and changed because he was often in soiled clothes when she arrived.

Jasmine Patel, Ms Barlow’s lawyer at Leigh Day, said: “Without payment for her travel time, Ms Barlow was being paid less than the minimum wage per hour and we believe that this is an unlawful deduction of wages. Ms Barlow’s travel to and from appointments was a necessary part of her job and as such, she should have been paid for it.”

The legal challenge follows the discovery of an internal MiHomecare document by the Corporate Watch campaign group. The document calculated it could owe workers from just one of its branches as much as £80,000 for not paying travel time. The leaked document considered how to respond to an HMRC investigation into branches in Penarth and Swansea.
Giving a breakdown of unpaid travel time for 44 members of staff in the Penarth branch over a week in September 2014, it estimated they could be owed up to £80,000 over three years. The internal document said: “The discussion [with HMRC] should not be widened to the whole of [MiHomecare], although in reaching any settlement… we should be aware of the wider implications for the group.”
A spokesman for Mitie, the outsourcing giant which owns MiHomecare, said: “We are investigating Caroline Barlow’s claim and if we do owe her any money we will pay it.”

My Grateful acknowledgment to the Independent for this piece;     read the full item :

Employment Tribunal fees survive Unison challenge



The Court of Appeal has firmly dismissed Unison’s attempt to overturn the Employment Tribunal fees regime. Following the detailed and complex Judgment in the case of R (on the application of Unison) v the Lord Chancellor it appears that the union’s attempt to end Tribunal fees through legal challenge has been unsuccessful.     

The facts 

When Employment Tribunal fees were first being introduced, Unison endeavoured to challenge their legality but this was rejected as being premature. That legal challenge was re-presented by Unison when the dramatic reduction in the number of Employment Tribunal claims, which had followed the introduction in fees, became evident. These challenges have all now been considered together by the Court of Appeal. In summary Unison’s arguments were that: the fee regime stopped European-based rights (such as discrimination) being effectively enforced; and the fees charged for complex claims, such as those for discrimination, indirectly discriminated against those with protected characteristics (such as women who are statistically more likely to purse a discrimination claim). The Court of Appeal has rejected all of the union’s arguments.
Some of the reasons for the decision are very complex. However Unison struggled with the fact that it is not those on the lowest incomes who are unable to bring Tribunal claims, because those claimants will not have to pay a fee due to the remission system. It is in practice those with higher incomes or assets who will not get remission and may be dissuaded from claiming by the fees. There was no evidence before the Court of any actual person who was unable to bring a claim, as opposed to broad evidence that some were unwilling to because of the costs of doing so. The discrimination claim was in the main not held to be made out at all, and the way in which the amount of fees to be paid is broadly-based upon the type of claim pursued and therefore the likely length of hearing, was held to be justified.
Whilst the Judgment does not strike down fees, it does contain a strong message for the Lord Chancellor’s current review of Employment Tribunal fees. The Court said “The fact that the evidence put before this Court has not satisfied me that there has been a breach of the effectiveness principle should not, and I am sure will not, preclude the Lord Chancellor from making his own assessment, on the basis of the evidence to which he will have access, on that question. The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by  claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited”.                    

What does this mean for me?

The current fee arrangements for Employment Tribunal claims have undoubtedly contributed to a significant reduction in Tribunal claims. The failure of this challenge means that fees are likely to be here to stay. As the Court of Appeal in its Judgment observes, if the impact of fees is to make potential claimants think twice about starting proceedings that is “not …a bad thing”. However our experience is that the fee regime enhances the benefits for you of following good procedures and practices, as the existence of appropriate and well-reasoned documents and procedures makes potential claimants less likely to pay money to pursue a claim (or be able to get their fees paid by their insurers or unions).

Comment

It is not inconceivable that this Judgment leaves open the possibility that further challenges to the legality of fees may be brought, based upon individual cases where actual claimants are unable to afford to claim. Appeal to the Supreme Court cannot be discounted. However the strong and clear Judgment of the Court of Appeal certainly suggests that Tribunal fees will not be overturn by the Unions through the Courts. Whether the Judgment influences the current governmental review and whether we see any changes to fees in the future as a result, we will just have to wait and see.

My thanks to the always excellent Daniel Barnett site for this erudite piece. via Weightmans LLP

Government unveils plans to enforce national living wage



The government has unveiled plans to ensure workers receive the national living wage, and outlined measures to punish employers who do not comply with the new regulations.
The plans include doubling the penalties for non-payment of the national minimum wage and the new national living wage, increasing the enforcement budget, and setting up a new team in HMRC to take forward criminal prosecutions for those who deliberately do not comply.
The team of compliance officers will investigate the most serious cases of employers not paying the national minimum wage and national living wage when it is introduced in April 2016. They will have the power to use all available sanctions, including penalties, prosecutions and naming and shaming employers.
Any employer found guilty of flouting the rules will be considered for disqualification from being a company director for up to 15 years.
Business secretary Sajid Javid said that the government is committed to making work pay and making sure people get the salary they are entitled to. “There is no excuse for employers flouting minimum wage rules and these announcements will ensure those who do try and cheat staff out of pay will feel the full force of the law,” he said.
However, former Sainsbury's chief executive Justin King argued that the national living wage would "destroy jobs". He claimed that employers would simply seek to make existing employees more productive, which would lead to fewer jobs.
The plans for the national living wage of £7.20 an hour for those over 25 were outlined in chancellor George Osborne’s summer budget in July. At the time Osborne declared: “Britain deserves a pay rise and Britain is getting a pay rise.”
The national minimum wage is currently £6.50 an hour and will rise to £6.70 in October.

My thanks to those good people at HR Magazine for this excellent piece   See more at: