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Employment law specialists
February 2017 Review

Welcome to our latest monthly employment law review.

This month Katharine Kelly explains how the new Gender Pay Gap Regulations will work and discusses the evidence requirements for a disability claim. My articles cover the important decision of the Court of Appeal in Pimlico Plumbers and Mullins v Smith, concerning employment status as a worker and some examples of breaches of the rights of workers in the burgeoning gig economy.

With the usual qualification to bear in mind the difference between employment status for tax and employment law purposes, the Government has published a handy online tool for people to find out whether, for tax purposes, they are likely to be classed as employed or self-employed. It is easy to use and SME owners will find it helpful when considering whether workers should be on the payroll with corresponding PAYE arrangements or rendering invoices for work done.

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Finally, although straying from the field of employment law to libel (who doesn't like a good libel case!), if you share my view of Katie Hopkins I expect that you will enjoy reading this judgment which was published on Friday. If you're a Twitter user Mr Justice Warby has included a really helpful appendix to the judgment called "How Twitter Works".

Kind regards,

Martin Malone

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Employment law support with direct access to specialist employment lawyers is available from just £99 per month. If you are interested in the service and would like to arrange a free visit from one of our lawyers, please call FREE on 08000 832 832 or send an email to enquiries@clbemployment.com.


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We are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money? We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / katharinekelly@canter-law.co.uk).


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If you would like hard copies of the brochure for you and your colleagues please email me at martinmalone@canter-law.co.uk with your name and address and I will be pleased to send them to you.


This month's news
  Title   Equality Act 2010 (Gender Pay Gap Information) Regulations 2017
 
by Katharine Kelly
 

On 6th December 2016, the Government published the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which will require large private sector businesses to publish gender-based pay statistics each year.

These Regulations are likely to come into force (subject to parliamentary approval) on 6th April 2017, and will essentially require employers with 250 or more employees (within the private and voluntary sectors) to publish gender pay information on their company website on 5th April 2018 and thereafter on an annual basis. The information must remain on the website for not less than three years and they must also submit this information to the Government each year (a Government website will be created where the information will have to be published, however details concerning the Government website will likely be released nearer 5th April 2017.)

The above has raised a number of questions from employers such as which individuals need to be taken into account for these purposes, and, exactly what information do they need to provide?

Firstly, in terms of the personnel be taken into account, the Regulations state that such individuals must be undertaking work for the business in a personal capacity, therefore consultants as well as employees, must be accounted for.

Secondly, with regards exactly what information must be provided, the following guidelines are given:

  • the difference in mean pay between male and female employees
  • the difference in median pay between male and female employees
  • the difference in mean bonus pay between male and female employees
  • the difference in median bonus pay between male and female employees
  • the proportions of male and female employees who were paid bonus pay
  • the proportions of male and female employees in each quartile of their pay distribution

The information must be collated from data taken on 5th April every year, starting with 5th April 2017. The bonus information should be based on the preceding 12-month period, beginning with the 12 months leading up to 5th April 2017.

What happens if my business does not comply?

 
Read more
 

  Pimlico Plumbers   Pimlico Plumbers and the definition of a "worker"
 
by Martin Malone
 

As I mentioned in last month's newsletter, an important judgment concerning the status of workers was handed down by the Court of Appeal on 10 February, namely Pimlico Plumbers Limited and Mullins -v- Smith. The decision was regarded as significant enough to make it on to the national news bulletins and Newsnight, as well as widespread coverage in the press.

Mr Smith is a plumber who worked exclusively for Pimlico Plumbers between August 2005 and April 2011. He claims that, following a heart attack in January 2011, he was wrongfully dismissed in May 2011. According to his initial agreement with Pimlico Plumbing he was a "sub contracted employee". The contract also stipulated that he had to wear a Pimlico Plumbers uniform, work for five days a week (a minimum of 40 hours), give notice of annual leave and be available to take on-call work. There was a ban on undertaking what was described as "private work", breach of which would lead to instant dismissal. The contract also provided for payment of "wages".

The initial contract was replaced with a longer and more detailed contract in 2009, which was entitled "Agreement - Self-Employed Operative". Mr Smith was required to provide his own tools and equipment and he had to pay his own expenses. He also had to maintain adequate public liability insurance. Sub-paragraph 6.1 of the contract stated:

"You are an independent contractor of the Company, in business on your own account. Nothing in this Agreement shall render you an employee, agent or partner of the Company and the termination of this Agreement (for whatever reason) shall not constitute a dismissal for any purpose."

Following the termination of the 2009 contract, Mr Smith lodged an employment tribunal claim, complaining of unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension, holiday pay and arrears of pay. He also claimed direct disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments on account of his disability. At a pre-hearing review Judge Corrigan determined that Mr Smith was not an employee. There were circumstances set out in the contract in which Pimlico Plumbers did not have to pay Mr Smith such as when an invoice was unpaid after six months; he had to rectify problems at his own cost; the understanding of the parties that he was self-employed, both for employment and tax purposes, and that he was VAT registered.

However, Judge Corrigan went on to find that he was a 'worker' within the meaning set out in section 230 of the Employment Rights Act 1996:

 
Read more
 

  Sherlock Holmes   Employment Appeal Tribunal Judgment: There can be no disability-related harassment claim without first establishing the disability
 
by Katharine Kelly
 

In the recent case of Peninsula Business Service Ltd v Baker, the Claimant had advised his manager that he had dyslexia and had also provided a psychologist’s report confirming the diagnosis.

The Employer's occupational health provider prepared a report confirming that the Claimant was likely to be considered disabled and recommended reasonable adjustments, however the Claimant's supervisor had reservations about this and thought that the Claimant could have engineered the report in his favour.

The Employer subsequently arranged for a private company to carry out covert surveillance of the Claimant, the reason for this being that they suspected that he was carrying out work for a second employer. The surveillance report did not substantiate the employer’s suspicions, however it did show that the Claimant was not devoting all of his time to his work. Disciplinary proceedings were commenced and a copy of the surveillance report was sent to the Claimant during these proceedings, despite not showing that he was engaged in any fraudulent conduct.

The Claimant brought claims at the Employment Tribunal, claiming that the surveillance was harassment (unwanted conduct relating to his disability) and also victimisation as the disclosures he had made about his disability were ‘protected acts’.

The Tribunal found that the surveillance could not be deemed to be harassment as the Claimant did not know about it at the time, however later telling him about it for disciplinary purposes was harassment. Furthermore the Claimant's reliance on his asserted disability was the reason for the surveillance, so the conduct did relate to his disability. The Employer arranging the surveillance was also victimisation – as the Claimant’s performance appraisals had always been positive the surveillance could only have been triggered by suspicions about his disability.

The EAT allowed the appeal.

 
Read more
 

  Deliveroo   More news about modern working practices and the "gig economy"
 
by Martin Malone
 

Last week's news was dominated by the Budget and the Class 4 National Insurance contributions' increase which was announced and then, within 24 hours, kicked into the long grass. An interesting fact which emerged in the news is that the UK workforce now includes 15% who are classed a self-employed for tax purposes. However, as I have reported this month (in the Pimlico Plumbers case) many of these people are nonetheless classified as workers in the context of employment law and therefore have rights which can be pursued in employment tribunals.

On 22 February The Work and Pensions Committee heard evidence from executives from Uber, Deliveroo, Amazon and courier firm Hermes UK as part of its investigation into modern employment practices. It is estimated that there are now some five million workers in the "gig economy", of whom some 910,000 are on zero hours contracts, an increase of 100,000 from 2015 to 2016 (ONS Labour Force Survey). UK and Ireland managing director of Deliveroo, Dan Warne, said that flexibility is important to its riders, adding:

"We cannot offer that amount of flexibility to those riders if we're forced to pay a given wage and a given hour to every single rider."

However, it emerged recently that Deliveroo had a clause in its contracts that banned workers from contesting their self-employed status in employment tribunals. Under questioning, Mr Warne acknowledged that the Company needed to "revise the contract". He said:

"This is not something that's enforced, so there's no need to have it in there... In practice, if they wished to contest their [self-employed] status they could do so and we wouldn't challenge them on that."

Although the clause would almost certainly not have been enforceable, it is easy to see how it could operate as a powerful disincentive to low-paid riders with no guarantee of work.

Meanwhile, it has emerged that DPD, which delivers parcels for Marks & Spencer, John Lewis and River Island, fines their couriers £150 per day if they cannot find cover when they are ill. This has resulted in drivers being forced to work when they are sick. The fine, which is described as "liquidated damages", means that couriers who earn on average £200 a day, lose £350 if they cannot work through illness and are unable to find a substitute. Chair of the select committee, Frank Field, commented:

"The gig economy is producing wave after wave of evidence on the grim reality of life at the bottom of Britain's labour market...A group of companies now controls the working lives of an unknown number of people, and yet evades its own responsibilities as employers and taxpayers by labelling those people as self-employed... This move [by DPD] makes the rest of the gig economy look as though it operates in the Garden of Eden."

A local example of dubious working practices came to light a few weeks ago. Mooboo Bubble Tea, a cafe chain, has a branch located in Liverpool One. New staff reported that they were being made to work a 40-hour trial shift with no pay and no guarantee of a job, apparently in direct breach of the minimum wage regulations.

 
Read more
 

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ABOUT OUR TEAM

Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

Our team is made up of qualified legal professionals who ensure that your business is being guided and supported by the latest and most efficient employment law resources at all times.

   
   
       Katharine Kelly
Katharine Kelly
Head of Employment

Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.

     
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       Sean Carty
Sean Carty
Head of Commercial

Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.

     
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       Martin Malone
Martin Malone
Director and COO

Martin is a director of Canter Levin & Berg Limited and its Chief Operating Officer. He splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.

     
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