Category: Employment Law

On Friday 19th March, the Supreme Court handed down its long-awaited decision in the case of Royal Mencap Society v Tomlinson-Blake.

The findings of this case are important for the care industry in particular, as the Supreme Court has held that employees who are expected to work ‘sleep in shifts’ do not earn the National Minimum Wage (NMW) for time spent asleep on the job.

The 32-page judgment highlights that a sleep-in worker who is “merely present” is treated as not working for the purposes of calculating pay under the NMW regulations. The argument that a worker must be available at such hours does not mean they will be expected to work during these hours. 

In the Court of Appeal, the Claimant had argued that as a Care Worker, she has to have a “listening ear.” Like in the Court of Appeal, the Supreme Court also rejected this argument as they concluded that having a “listening ear” does not amount to “working” for NMW purposes.

One of the many deciding factors, in this case, was the fact the judges gave weight to the Low Pay Commission’s recommendations that sleep-in workers should be paid an allowance rather than the NMW unless they are awake for work purposes.

This decision will no doubt come as a big relief to local authorities and employers in the care industry, particularly due to the effects of the COVID-19 pandemic on this sector. It spares the care sector of the risk of paying about £400 million in back pay if time spent sleeping was found to be working time.  

Up to now, the case of British Nursing v HMRC had indicated that sleep-in shifts could qualify for the national minimum wage. Although all of the judges in this case agreed the British Nursing v HMRC case was not a correct interpretation of the law (albeit they could not agree on the reasons). 

Undoubtedly, this judgment will be disappointing to unions and workers who were campaigning for better wages and conditions in an already low-paid sector.  We shall have to wait to see whether the Government will decide to intervene to change the sleep-in policy across the sector. 

The Supreme Court handed down its decision in Uber v Aslam last week which confirmed that Uber drivers should be classed as workers and not self-employed.  This decision means that thousands of Uber drivers will be entitled to basic rights which include access to minimum wage, rest breaks, and paid holidays.

The case initially commenced in 2016 and has traveled up through the courts being appealed (unsurprisingly) by Uber at every turn.  The Supreme Court however is the highest court in Britain meaning this decision is the final say on the matter. 

The flood gates are now open for all Uber drivers to seek compensation which could lead to Uber facing a large compensation bill.

One of the main arguments put forward by Uber is that its drivers are not workers because the drivers can choose the hours they work.

The ruling concluded that Uber must consider its drivers as workers from the moment they log on to the app and are available to work in the area until they log off the app. 

The Supreme Court decided that because of the factors listed below, the drivers were in a position of control and subordination to Uber.

• Uber sets fares which means they determine and control how much drivers earn
• Uber sets the terms of the driver’s conditions and so the drivers have no input
• Uber can penalize or terminate driver’s contracts if the drivers reject too many requests for rides and so the drivers are constrained by Uber
• Uber monitors drivers’ service through a star rating and they can end their employer-employee relationship after warnings and the service does not improve.

The decision could well have huge ramifications not just for Uber but other industries which rely on a form of imposed “self-employed” contracts.  The case will no doubt prompt a shift in the way these companies work in the future and the face of the gig economy may well be affected.   For now, those Uber drivers not a party to this litigation will have to either litigate themselves and/or at least threaten to litigate in order to recover what is owed to them.   Unions may well assist also but it is unlikely that Uber will automatically rectify matters and give drivers the money they are owed.

For assistance with this or any employment-related query, please contact our Head of Employment, Ilinca Mardarescu.

ON 4th January 2021, the Prime Minister issued a statement urging everyone to stay at home. This new Tier 5, imposed nationally, has meant that all schools will be closed and people have been urged not to leave the house except for essential and specific reasons. This is much more akin to the first national lockdown which took place in March 2020.

But what does this mean for jobs and the workplace?

Guidance on what this means has been published by the government. This states;

You may only leave your home for work if you cannot reasonably work from home.

Where people cannot work from home – including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing – they should continue to travel to their workplace. This is essential to keeping the country operating and supporting sectors and employers.

Public sector employees working in essential services, including childcare or education, should continue to go into work.

Where it is necessary for you to work in other people’s homes – for example, for nannies, cleaners or tradespeople – you can do so.

Otherwise, you should avoid meeting for work in a private home or garden, where COVID-19 Secure measures may not be in place. Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. The risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely. Extra consideration should be given to those people at higher risk.

As previously, more information and detailed legislation will be published soon. The law, once passed, is due to take effect from the early hours on Wednesday. However, the new restrictions mean that people may not leave the house without a reasonable excuse and the police will have the power to enforce this.

We have all been here before. Thoughts of home-schooling again and memories of the last lockdown mean we may well dread this next lockdown. But businesses – and to a certain extent individuals – are more prepared for this type of lockdown than ever. We have done it before; we can do it again.

For any assistance with how this will affect you in your employment or business, please do get in touch with our Head of Employment, Miss Ilinca Mardarescu.

As of 1st December 2020, the ACAS Early Conciliation period has been extended to last for a set period of six weeks in all cases.

But who is ACAS and what is the Early Conciliation period?

ACAS is an independent public body that receives funding from the government.   It provides free and impartial advice to both employers and employees on issues relating to employment law including best practice, policies and assist with early settlement of claims.

For most claims which are brought in the Employment Tribunal, it is a requirement that the Claimant notify ACAS prior to issuing proceedings, of his/her intention to issue proceedings.  This is easily done by filing in a simple form on the ACAS website.

Once the Claimant has notified ACAS, the matter will be referred to an ACAS conciliator, also known as a conciliation officer.  The conciliation officer will contact the Claimant to explain the early conciliation process. They will check the information given on the form, discuss the matter generally and establish whether the Claimant wants to try to settle the dispute.  If the Claimant is open to negotiation, ACAS will contact the Respondent (the employer) to start the process of trying to reach a settlement.

Neither party are compelled to enter into negotiations and ACAS does not have the power to force participation in settlement discussions.  However, it is often a good idea for the parties to participate in the process seriously before matters proceed to a more formal stage. Once proceedings are issued at the Employment Tribunal, the parties have to adhere to the Orders given by the Tribunal and in the majority of cases legal costs will then start to be incurred. 

ACAS does not provide legal advice and cannot advise either of the participants on what to do or what is reasonable in terms of negotiating a settlement.  For this reason, it is advisable for parties to obtain their own legal advice on the strength of their case during this process.  Knowing the likelihood of success is an important factor when negotiating a settlement.

Once the six week period has passed, ACAS will issue a certificate to the Claimant to confirm they were notified of the claim as requiered.  The certificate has a number on it which needs to be quoted on the Claim Form (ET1) when issuing proceedings at the Employment Tribunal. 

For any assistance with the Early Conciliation process or other employment-related matter, please contact our Head of Employment, Ilinca Mardarescu.

As of Thursday 5th November 2020, all of us in England will enter the second period of national lockdown.  Currently, this is expected to last 4 weeks ending on 2nd December 2020, although by now we must all appreciate that this may yet still change.  

Alongside this announcement, the government confirmed the extension of the existing Coronavirus Job Retention Scheme (CJRS), also known as ‘furlough’.  This had been due to end on 31 October but has been extended for one month.  Interestingly, the extension not only means businesses can continue the scheme where needed but the contribution amount has also increased to the earlier amount of 80% of an employees’ wages.

As previously, there are a few crucial points which businesses need to be aware of such as:

• Following the right HR process;
• Identifying who can go on furlough;
• Updating contracts or putting a written agreement into place for affected staff;
• Claiming the 80% wages from the government.

Unlike the first lockdown, the government has stated that those who cannot work from home can continue to work (subject to the forced closures of certain businesses such as bars, restaurants, non-essential shops and the like).  For those continuing to work on site, businesses will need to be extra vigilant to ensure they keep their premises as safe as possible for all staff.  A review of the health & safety assessment should be undertaken to ensure businesses do not face potential claims from employees or indeed fines.

For those with employees working from home, a robust work-from-home policy should already be in place.  However, if this has not been reviewed recently it is important to consider areas such as GDPR compliance when staff are working from home, the use and monitoring of equipment, relevant insurance and clear guidelines for all as to the practicalities for home-working.

For any assistance on these matters, please contact our Head of Employment, Ilinca Mardarescu.

Another week, another amendment! Rishi Sunak has announced yet further amendments to the new Job Support Scheme (JSS) which is due to start on 1st November. In fact, he has split the scheme into two separate schemes – one will be known as JSS Open and the other as JSS Closed.

Unsurprisingly, JSS Closed will deal with businesses that have been required to close under lockdown regulations whilst JSS Open will support those businesses which are open but working on a very much reduced basis.

Under the new JSS Open, an employee will need to work at least 20% of their normal hours. This has therefore reduced considerably from the 33% originally announced. Employees will receive their normal pay for the hours they work, and two-thirds of pay for the hours they do not work. This is subject to a cap of £3,125 per month.

For that two-thirds top-up, the government has increased its contribution substantially confirming it will pay 61.67% and the employer will only be liable to contribute 5%, plus NI and pension contributions on the full amount. This reduction will greatly assist struggling businesses.

Importantly, it has been confirmed that there must be a written agreement between employer and employee, agreeing to these changes.

Under JSS Closed, employees will receive two-thirds of their normal wages, fully funded by the government (subject to the same £3,125per month cap). Employers will only have to pay the NI and pension contributions on that amount but will not be required to contribute to wages directly. Again, there must be a written agreement between employer and employee, agreeing to these changes.

All SMEs and large businesses are eligible if their turnover has fallen due to coronavirus (according to their VAT returns). Although not strictly prohibited, large businesses which are currently paying out dividends are discouraged from applying.

The government is setting up an online portal (similar to the previous one used for CJRS/Furlough) for employers to use to claim back the payments. The first claims can be made from 8 December 2020.

Further details will no doubt be released soon. Meanwhile, for any assistance with implementing these schemes or the written agreement necessary, please contact our Head of Employment, Ilinca Mardarescu.

There has been much discussion on Chancellor Rishi Sunak’s new Job Support Scheme (JSS) which is due to start on 1st November.  This scheme was announced on 24th September to support those in viable jobs but whose hours or level of work was temporarily reduced.  The JSS would contribute 1/3rd of the shortfall of wages (capped at £697.72pm) for employees who will be working reduced hour and the employer would contribute a further 1/3rd of the shortfall, with the employee foregoing the final third.  This would be available for employees who will be working at least 33% of their normal (pre-furlough) hours.

This month however, a new, extended scheme was announced.   The aim of this is specifically to cover those businesses which have been ordered (due to local restrictions or national legislation) to close completely.   Pubs, bars and betting shops in areas such as Liverpool (which was last night placed into the COVID alert: Very High band) will therefore be able to benefit from the new, extended scheme.In that situation, the government will pay two thirds of their employees’ salaries, up to a maximum of £2,100 per month. Under the scheme, employers will not be required to contribute towards wages and will only be asked to cover NICS and pension contributions.

Businesses will only be eligible to claim the grant while they are subject to restrictions and employees must be off work for a minimum of seven consecutive days.

This scheme will begin at the same time as the “normal” JSS, on 1 November 2020.  Initially, it has been announced that it will be available for six months but that will be reviewed in January 2021.   As with the JSS, payments to businesses will be made in arrears via a HMRC claims service that will be available from early December. 

Further details on the scheme will be published soon but should you have any queries meanwhile in relation to this or any other employment law related query, please contact our Head of Employment, Ilinca Mardarescu.

‘Mental health conditions are disturbances in a person’s thinking, feeling or behaviour (or a combination of these) that reflect a problem in mental function. They cause distress or disability in social, work, or family activities.’

Mental illness is the second-largest source of disease in England. Mental illnesses are more common, long-lasting and impactful than many other health conditions. With this in mind, it is vitally important we adopt into all practices, measures to assist those suffering with a mental illness, where we can. 

In this article we look at a number of important considerations we should consider adopting into our practice.

Listen Carefully and Ask Questions

It is important as with any client, that we understand what it is our client is looking for, and the ways in which we can help them achieve their objective and/or resolve any issues. In order to achieve this, we need to be able to listen to our clients carefully and try to understand why it is they feel a certain way, or would like to achieve a certain objective. 

It is important to be aware that one service does not fit all. We should be taking steps to adapt our services for each individual client, specifically tailored to them, and take steps to address their most immediate concerns. We might consider asking more questions about our clients. If we can understand what it is our clients are experiencing, we can then adapt our services to make it more tailored to them. 

There may be cases where our clients do not feel ready to speak to us about a particular matter. In this situation we should assure our clients that we are available to speak once they are ready.

In any event, it is important that we allocate enough time to get to know our clients, ask them questions and listen to what they have to say carefully.  

Do not make any Assumptions

There are a huge number of mental health illnesses, many that we are familiar with, such as anxiety disorders, depression, and schizophrenia. There are also a number of mental illnesses that we may not be so familiar with, such as Stendhal syndrome, Alien Hand syndrome, and Capgras syndrome. In any case it is important to be mindful that the same type of mental illness may not always affect a person in the same way. Therefore, we should be very careful to ensure that we do not make any such assumptions. This can be achieved by asking the client questions that might include questions about them and their experiences, on both a personal and a professional level, and by listening to their responses carefully. 

Decide Actions Together and Stay Calm

When suffering with an illness we can often feel vulnerable. This heightened vulnerability can lead us to focus on matters we are currently experiencing that are difficult or unresolved. Often when a client arranges to speak to a Solicitor, or instructs a Solicitor to act on their behalf, there is usually something that has triggered their need to come to us for help or advice.  At this time, clients will need reassurance, and trust, that we are able to and will do all we can to provide the best service. 

This can be achieved by checking in with our client on a more regular basis than usual, opt for speaking to our clients via a telephone over sending an email or writing a letter, and setting out some time in order to review the next steps of their matter together.

When taking instructions from a client suffering with a mental illness, we should avoid putting pressure on the client. This can be achieved by setting a pace for the matter from the outset, and continue to review this at regular intervals as the matter progresses.

Where we are responding to the client’s queries, a response should be provided as soon as reasonably possible, and in a calm and coherent manner. Where we are unable to respond quickly then a holding response should be sent to the client so that they feel assured that their matter has not been forgotten. 

By making decisions about the matter together, the client is likely to feel informed and somewhat in control of their matter. Any concerns about the difficult or unresolved matters they may have previously been concerned about are likely to be lessened as they see the matter progressing. 

By speaking to the client in a calm and coherent manner, you will be making it much easier for the client to understand and take in what is being said. In turn, this will also make the client feel happy to know that they have instructed a Solicitor who will get the job done, whilst looking after their best interests, not only professionally but personally too. 

For training or courses designed to help raise awareness and understanding of mental health, contact the Charity, Mind. https://mind.turtl.co/story/elearningbrochure. 

 

Nearly two million people in the UK are currently living with sight loss, and by 2050 this number is expected to have more than doubled, with statistics showing 250 people begin to lose their sight every day.  The importance of looking after our eye health is particularly relevant due to it being National Eye Health Week (21-27 September 2020), and as businesses, it is also equally important that we are offering services accessible to all, including those with vision impairment.  Therefore in this article we will discuss how services can be adapted to ensure your business is well equipped to meet your client’s needs.

Before the client appointment

When booking clients in for appointments, it is best practice to ask your clients whether they have any special requirements that they will need in place for their meeting.  It is important to note that it may not be easy to identify if your client has sight loss when they arrive at your office, and therefore being prepared can help put your clients at ease and feel comfortable from the outset.  Look out for clients wearing the sunflower lanyard to show that they may require greater assistance.

Find out how your clients will be arriving and offer any necessary assistance in accessing your office, such as through providing clear instructions on your location and meeting clients at the door to guide them to their meeting room.   Check whether your clients is bringing any assistance to their meeting, such as a relative or guide dog, so that you can prepare your meeting accordingly through arranging extra seating or providing a water bowl for guide dogs etc.

Where possible, you should always offer a home visit for clients with vision impairment, as they may feel more comfortable in a known environment for their meeting.  

Preparing client documentation

Those with sight loss may find it difficult to read documents in the standard format, and it is therefore also important that you check with your clients beforehand as to whether they have any preferences, such as a larger font size, braille, or electronically as they may wish to transfer text to speech.   Inserting the  sentence ‘End of Document’ should be included at the end of all documents, so that the client can be sure there is nothing further to read.

When the client arrives

When assisting a client to their meeting room you should always ask which side they would prefer you approach them on.  Do not just assume a client with sight loss will automatically require guidance, as those with canes or guide dogs may prefer to navigate themselves, and you should therefore always ask the client whether they require assistance first.  

If the client does wish for you to guide them, place your guiding arm in a relaxed position at a right angle to your rib cage, allowing the client to cup your elbow and follow behind you.  Alternatively clients may wish to put their hand on your shoulder instead. 

You should walk at a normal pace, noting any uneven surfaces and any doors or steps etc.  When approaching stairs, place the clients hand on the handrail and let them know when they are at the start and finish of the steps.  Let the client know whether the steps are going up or down, and if there are any breaks in the handrail/steps then ask your client whether they would like your arm again for these sections.

Communicating

Surprisingly only 7% of our communication is purely verbal, and it is therefore very important that we are able to communicate effectively with those that may not be able to clearly see other communication, such as facial expressions etc.  The following tips can help when communicating:-

• When approaching a client you should always let them know who you are.  If you offer your hand, verbalise your movements so that they can be clear you wish to share hands such as ‘Hi, my name’s Rachel, I am just offering you my right hand for a handshake’. 
• You should always face your client, and if others are present, make sure your voice is still directed toward the client rather than straying towards others that are sighted.  This is to ensure that the client does not feel excluded from the meeting even when others have spoken.
• If you and other colleagues are all present during the meeting, you should each say your name before speaking on every occasion so that the client does not become confused.
• Let the client know if you are leaving the room, and also announce when you return. 
• Verbalise your actions so that the client knows what you are doing, for example when you pause to take notes.
• Never distract any guide dogs, and always ask the owner’s permission before petting.

Coronavirus

With the pandemic ongoing, many may be left unsure as to whether they can still assist clients in the manners detailed above, particular in relation to guiding.   Government guidance has recently confirmed that partially sighted people in England can still be guided by people outside of their household.  However to limit risks it is best practice that both you and the client wear masks, hand sanitise before, during and after guiding and try to limit the amount of time spent within 2m of each other.  You should also ensure you have the name and contact number of anyone you have guided so that you can contact them should they need to be traced.

Further Reading

We hope that the above information will help your business take steps to ensure the best service is provided to all clients, if not in practice already.  If you would like to find out more information on how your business can support clients with vision impairment,please see the charity Royal National Institute of Blind People via the following link https://www.rnib.org.uk/services-for-businesses/supporting-blind-and-partially-sighted-customers

The Chancellor, Rishi Sunak, has today (24th September 2020) confirmed that the Furlough scheme will be ending on 31st October, as planned.  He said he felt it important to “move and adapt” and feels it is not beneficial to continue supporting people in jobs which quite simply no longer exist.  

The new scheme announced is one which concentrates on keeping people in work.  The Job Support Scheme (JSS) encourages employers to keep people in work by allowing them to ask their staff to work on reduced hours.  Employees will need to work at least one third of their hours and be paid for that as normal by the employer.  For the remaining (unworked/lost) hours, the employer and the government will each pay the employee a third.   The employee then also foregoes his/her wages for the final third of those unworked/lost hours.   

The scheme is available for all small and medium businesses, but larger businesses will need to show that they have suffered a reduction in revenue before being eligible.  Additionally, employees need not have participated in the Furlough scheme to be eligible to participate in this new scheme.  

The scheme is set to start on 1st November and will last six months. 

No doubt there will be further details published shortly (I anticipate there will at least be a financial cap on the payments).

For any further information or to discuss generally, please contact our Head of Employment, Ilinca Mardarescu.