www.parissmith.co.uk
Employment law
newsletter
November 2015
1. Guidance on zero hours contracts
The Department for Business Innovation and Skills
(BIS) has published guidance on zero hours contracts
for employers. To read the guidance follow this link.
The guidance explains what zero hours contracts are,
what employment rights an individual employed on a
zero hours contract has and when it may be appropriate
or inappropriate to employ someone under such a contract. It explains the alternatives to zero hours contracts
and provides best practice guidance for employers. It
also reminds employers that exclusivity clauses in zero
hours contracts are prohibited and will be void if used.
2. On-call worker was not ‘working’ and was
not entitled to carry forward holiday from
previous years
The Employment Appeal Tribunal (EAT) has held that an
on-call night care assistant was not ‘working’ throughout
each night shift where he was required to be in his own
flat at the care home but he was able to sleep.
The Background
Mr Shannon was an on-call night care assistant who
was provided with free accommodation in a care home.
He was required to be in the care home from 10pm until
7am but he was able to sleep during those hours unless
he was required to respond to any request for assistance by the night care worker on duty at the home.
Mr Shannon claimed that he was entitled to be paid the
National Minimum Wage (NMW) for the hours between
10pm and 7am when he was required to be at the care
home. In addition, he had not taken any holiday during
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his employment and claimed holiday pay dating back
to the introduction of the Working Time Regulations
(WTRs) in 1998.
What does this mean?
The EAT held that Mr Shannon was only entitled to be
paid the NMW when he was actually awake and called
upon to work by the night care worker. This is because
Regulation 16(1) of the WTRs provides that work includes time when a worker is available and required to
be available at or near a place of work, unless the worker’s home is at or near the place of work and the time
is time the worker is entitled to spend at home. In this
case only time when the worker is awake for the purpose of working is counted as ‘working time’ and therefore attracts the NMW. The EAT held that the Tribunal
was entitled to take into account the fact that there was
a night care worker on duty and in practice Mr Shannon
was rarely called upon.
The EAT also held that Mr Shannon was not entitled to
carry forward his paid holiday leave entitlement from
previous leave years. A request for leave is not necessary where a worker is prevented from taking leave, for
example by ill-health or maternity leave. However, in
this case, Mr Shannon was not unable or unwilling to
take annual leave as it fell due for reasons beyond his
control. He could have requested paid leave but chose
not to do so. Mr Shannon’s contention that he did not
request holiday because he was frightened of upsetting
his employer was not accepted.
What should employers do?
All decisions in this area are highly fact sensitive and
there are several EAT cases which have had smilar
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facts but have resulted in different decisions on this
issue. Employers who employee workers who ar required to be on call should take specific advice as to
what constitutes ‘working time’ as this will affect their
entitlement to be paid the NMW.
Case reference: Shannon v Rampersad & Rampersad
t/a Clifton House Residential Home
3. Plans to extend shared parental leave to
working grandparents
The Chancellor has announced that working grandparents will be able to share parental leave and pay in the
future. The Government intends to consult on the details in the first half of 2016 and aims to implement the
change by 2018.
4. Apprentices: a zero rate of NICs will be
introduced from April 2016
A zero rate of secondary Class 1 National Insurance
Contributions (NICs) on earnings paid to ‘relevant’ apprentices, i.e. those under the age of 25 and who are
employed as an apprentice, will be introduced from 6
April 2016.
The zero rate will apply to earnings up to an upper secondary threshold (which will be the same as the upper
earnings limit for the tax year starting 6 April 2016). This
means that it will be more affordable to hire new apprentices because NICs will only apply to the highest
paid apprentices under the age of 25.
Regulations defining ‘apprentice’ for the purposes of
the zero rate of employer Class 1 NICs are expected to
be passed within the coming months. The Government
has also indicated that guidance for employers on the
definition of an apprentice and on how to apply the zero
rate through payroll will be available in January 2016.
5. Limited company was protected from
discrimination
Background
Mr Abrams was a member of EAD, a limited liability
partnership (LLP). As he got near to retirement, he
set up a limited company for tax reasons. He was the
sole director and principal shareholder of this company,
which took his place as a member of the LLP. Under
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the Equality Act 2010, LLPs are under a duty not to discriminate against a member. When Mr Abrams reached
the age when he would normally retire from being a
member of the LLP, the LLP objected to his company
remaining a member and to him continuing to supply
his services to the LLP.
Mr Abrams brought an age discrimination claim on behalf of both himself as an individual and on behalf of his
company.
The EAT held that the company could bring a claim of
discrimination.
What does this mean?
A limited company can bring a claim that it has been
directly discriminated against where it suffers detrimental treatment because of the protected characteristic of
someone with whom it is associated.
The fact that only individuals can have the protected
characteristics listed in the Equality Act 2010 does not
mean that only individuals can be protected from discrimination.
What should employers do?
This case marks an important development in discrimination law. However, its impact in the employment field
may be limited. The majority of claims under Part 5 of
the Equality Act 2010 (discrimination at work) rely on
the Claimant showing they are in employment or applying for employment. This is a contract to do work
‘personally’ which a company is unlikely to be able to
prove since it can only function through the actions of
his officers and employees.
Case reference: EAD Solicitors LLP and others v
Abrams
6. Whistleblowing guidance for charity employees
The Charity Commission has published guidance on
how an employee of a charity can make protected disclosures about serious wrongdoing at the charity.
The guidance explains how a whistleblowing report
should be made, who is protected, how the Commission
will consider a protected disclosure and where employees can obtain free confidential advice about whistleblowing. It also explains the limits on the Commission’s
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ability to ensure anonymity for whistleblowers.
The guidance can be found here.
7. Dispute relating to contractual terms can
be “in the public interest”
The Employment Appeal Tribunal (EAT) has held that a
dispute between an employer and a group of four employees relating to their terms and conditions of employment was capable of being a protected disclosure
entitling them to seek protection against unfair dismissal under whistleblowing legislation. The dispute was a
matter capable of being “in the public interest”.
Background
In order to bring a whistleblowing claim, a worker must
be able to demonstrate that they reasonably believed
that their disclosure was “in the public interest”.
In this case, Mr Underwood was an HGV driver and
together with three of his colleagues, submitted a written complaint regarding the way in which overtime was
allocated among drivers. Some time later, Mr Underwood was dismissed and claimed that his dismissal
was automatically unfair due to his complaint being a
protected disclosure. He submitted that some of the
drivers who were granted less overtime were seen to
be awkward because they had raised concerns regarding the safety of vehicles. There was therefore a wider
public interest in the case relating to road safety.
The Tribunal rejected Mr Underwood’s claim stating
he could not have believed his disclosure was “in the
public interest”. However, in a subsequent case (Chesterton Global v Nurmohamed) the EAT held that it was
not necessary to show that a disclosure was of interest
to the public as a whole, as only a section of the public
will be directly affected by any given disclosure. In this
case, a group of 100 senior managers was sufficient to
satisfy the public interest test.
also confirmed that disputes relating to terms and conditions of employment could be in the public interest.
What should employers do?
This decision seems to be inconsistent with the purpose behind the inclusion of the public interest test in
June 2013, which was meant to prevent employees
seeking whistleblowing protection in relation to matters
regarding their own contract.
The Chesterton case is being appealed to the Court of
Appeal but is not due to be heard until October 2016.
In the meantime, employers should bear in mind that
cases involving individual contractual disputes affecting
only a small group of employees are likely to be held to
be in the public interest. Therefore, employees making such a protected disclosure will be protected under
whistleblowing legislation.
Case reference: Underwood v Wincanton Plc
Find out more
This is a summary of some of the key principles only
and is aimed at providing general information rather
than giving any specific advice. If you would like further
detailed advice on the matters dealt with in this newsletter than please contact a member of the Employment
team.
Clive Dobbin
Partner
023 8048 2370
[email protected]
What does this mean?
The EAT followed the case of Chesterton and allowed
Mr Underwood’s appeal. It held that the definition of the
public could be a subset of persons employed by the
same employer on the same terms and therefore having the same interest in a matter raised by another employee. Therefore, a dispute between Mr Underwood
and his fellow employees and their employer could be
said to be potentially in the public interest. The EAT
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David Roath
Partner
023 8048 2238
[email protected]
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October 2015
Jane Biddlecombe
Solicitor
023 8048 2374
[email protected]
Claire Merritt
Solicitor
023 8048 2112
[email protected]
Gemma Robinson
Solicitor
023 8048 2343
[email protected]
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