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Check the holiday calendar!

Failure to correctly plan pilots' holidays will result in Ryanair cancelling hundreds of flights over the next six weeks.
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Check the holiday calendar!

Fulton and anor v Bear Scotland Ltd

The EAT has confirmed that a gap of more than three months between non-payments or underpayments of wages breaks the ‘series’ of deductions for the purpose of bringing an unlawful deductions from wages claim. In the context of holiday pay, what this means is that where there has been a gap of more than three months between underpayments of holiday pay, the earlier payments in the series will be time barred, although the Tribunal may exercise its discretion to extend time.

Fulton and anor v Bear Scotland Ltd

Holiday: to roll over, or not to roll over – that is the question

The issue of holiday pay has been back in the ECJ, with the Court considering the case of King v The Sash Window Workshop Ltd and another.

In that case, the issue had arisen as to whether Mr King, a worker who had been mistakenly classified as self-employed, should be able to carry over holiday that he had been prevented from taking as a result of the misclassification.

The EAT held that a worker who is unable or unwilling to take holiday due to reasons beyond their control (extending beyond sickness) should be allowed to carry it over to the next leave year. The question of whether Mr King was in fact prevented from taking his leave was referred back to the Employment Tribunal.

The Court of Appeal made reference to the ECJ to answer the key issues in the case, specifically:

  1. Under the Working Time Regulations, does an individual have to take unpaid leave before being able to prove that they are entitled to pay for this?
  2. Where the worker doesn’t take leave they are entitled to, can the leave be carried over when the worker is prevented from exercising their right?
  3. If the leave does carry over, is this indefinite or for a limited period as in sickness cases?

The hearing took place on Wednesday and the judgment will be hotly anticipated, for a number of reasons. It has the potential to extend the right to carry over beyond incidences of sick leave. It is also interesting on its facts, in the context of the rise of the gig economy and the question of employment status.

One interesting point made by the European Commission was that, as the Working Time Directive is a health and safety measure, the burden of ensuring compliance should fall on the employer. As such, there is no burden on the employee to actually request carry-over. For updates on the decision, watch this space.

Holiday: to roll over, or not to roll over – that is the question

Uber and the Gig Economy – is the law keeping up?

After a preliminary hearing spanning seven days (including reading the five-volume bundle and time for deliberation), an Employment Tribunal has handed down its much anticipated ruling that Uber drivers are workers rather than independent contractors. The drivers can, therefore, benefit from statutory protections, such as 5.6 weeks’ paid annual leave each year, a maximum 48 hour average working week (in the absence of an opt-out), rest breaks, the National Minimum Wage, potentially the National Living Wage, and the protection of the whistleblowing legislation.

The Tribunal examined in detail Uber’s business model but rejected Uber’s assertion that it is a provider of technology services rather than transportation services. Passengers can order a taxi via Uber’s smartphone app and Uber’s drivers can then decide (with the extent of the autonomy of such decision one of the factors questioned in this case) whether to drive that passenger to their requested destination and, if they do, the route to be taken. The passenger pays the fare to Uber by credit or debit card, Uber takes a 25 per cent service fee, and pays the balance of fares to the driver on a weekly basis.

The Tribunal looked at various aspects of the arrangement as it operates in reality, rather than as described in Uber’s contracts, to determine whether the drivers are workers as opposed to truly independent contractors. For example, the Tribunal noted the fact that, if a driver declines three trips in a row whilst logged on to the app and so ostensibly available to work, he will be forcibly logged out of the app for 10 minutes. The Tribunal also took note of the fact that Uber prohibits drivers from agreeing with the passenger a fare which is higher than that set by Uber and that Uber usually bears the cost of any cleaning necessitated by a passenger soiling a vehicle.

In summary, the Tribunal concluded that Uber is a taxi service and employs drivers to provide that service in a way which, in a number of key respects, Uber controls. Consequently, the Tribunal held that each of the drivers in this case fell squarely within the statutory definition of a worker as an individual who works under a contract to personally perform services for another party to the contract (Uber) which is not a customer of a business undertaking carried on by the individual. However, we note that this contract did not actually exist (in the sense that no such express agreement had been put in place) but had to be inferred by the Tribunal from the facts as found by it. It may be that the scope for doing so will be one of the grounds on which Uber appeals against the Tribunal’s judgment.

The Tribunal went on to find that, whilst the drivers are under no obligation to switch on the app through which their instructions are received and there is no prohibition against dormant drivers, once the app is switched on, the driver is in the territory where he is licensed to operate and he is able and willing to accept assignments, he is then on working time until one of those conditions ceases to apply.

For the purposes of the National Minimum Wage Regulations, the Tribunal stated that the work carried out by drivers does not constitute “time work” or “output work”, as the driver’s entitlement to pay is not limited to when he is carrying a passenger and does not depend on him completing a particular number of trips. Accordingly, the work was classified as “unmeasured work”, so it is likely that the relevant rate of pay will be calculated by reference to the periods of time when the driver is logged on to the app in his licensed territory and ready to accept passengers, rather than just the time spent driving passengers to their destinations.

This decision is extremely fact specific. Furthermore, Uber has already announced its intention to appeal against it. The outcome is likely to have wide-ranging implications for the concept of the gig economy, the proponents of which claim that it benefits individuals who want the flexibility to work how, when and for whoever they please, in an increasingly interconnected and digitally virtual employment sphere.

The employment landscape is changing rapidly and the challenges to the existing statutory framework presented by the Uber case could be seen as demonstrating that the law also needs to change in order to keep up. In support of its decision, the Tribunal cited an earlier judgment which identified the underlying policy behind the definition of “worker” as the need to extend statutory protection to individuals who are vulnerable to exploitation in the same way as employees. Whilst this is clearly not a new issue, as is evidenced by some of the previous case law referred to in the Uber judgment, perhaps in light of the rise of the gig economy, such policy needs to change and the law, therefore, needs to change with it.

Uber and the Gig Economy – is the law keeping up?

Employees need time and space when breaking up with smoking

The government’s watchdog, Public Health England (PHE), is urging UK employers to give e-cigarette users more frequent breaks than cigarette smokers as well as their own vaping room away from workers who smoke. E-cigarettes turn liquid nicotine into a flavoured vapour, purporting to allow smokers to curb their nicotine addiction without the harmful effects of smoking tobacco. However, PHE suggests that smoking e-cigarettes delivers a lower nicotine hit than traditional cigarettes, and  therefore employers should allow workers to take more breaks to “top-up” their nicotine levels. In addition, PHE states that forcing e-cigarette smokers to go outside would “undermine their ability to quit smoking”. The watchdog hopes that this will encourage workers to smoke e-cigarettes at work rather than tobacco, promoting the health and wellbeing of staff by making it a more convenient alternative.

Currently, under the Working Time Regulations 1998, workers have the right to an uninterrupted 20-minute rest break away from their workstations if their working day exceeds six hours. Statute limits this right to one 20-minute break per day if the shift is at least six hours. It does not provide for rights to extra breaks for smokers or workers who use e-cigarettes. However, employers are under a general duty to prevent risks to health and safety.

Given that smoking and vaping satisfy a nicotine addiction at different rates, it may be best practice for employers to take this into account when assigning the length and frequency of any breaks it grants its staff. This is something employers can develop through workplace policies. With around 2.8 million adults in the UK using cigarettes, employers may wish to note the difference in the effect of vaping compared to smoking tobacco when updating or amending the relevant policies. However, employers should also note that there is no obligation to allow staff to take smoking breaks, and many do not permit this at all. Smokers can, of course, smoke during their rest period if they choose, but this should preferably be in a designated smoking space and must not be in an enclosed area.

Employees need time and space when breaking up with smoking

We’re all going on a summer holiday…if the boss allows it!

 

The holiday season is upon us and workers have dreams of lying on beaches and splashing in the sea. As an employer you might have other ideas. You might need your staff in the workplace. This has been the case for those in the financial sector. Some banks have put measures in place to ensure there are enough staff to deal with enquiries and issues arising from the Brexit vote.

Can employers restrict the taking of holidays?

Under the Working Time Regulations 1998 (WTR), either the employer or worker can give notice of taking statutory holiday. A written agreement can vary or exclude these provisions.

Under the WTR, the notice a worker needs to give must be at least twice the period of leave that they are requesting. This means if the worker wants to take five days’ leave, they must give at least 10 calendar days’ notice.

An employer may refuse a worker’s holiday request by serving a counter-notice. The employer must give the notice at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing. This means if the worker has requested six days’ leave and the employer wishes to refuse five days of the request, it must give notice at least five calendar days before the date on which the leave was due to start.

Employers need to ensure that they are not restricting a worker from taking their entitlement due under the Working Time Directive (WTD). This amounts to four weeks’ minimum entitlement (the WTR provide for 5.6 weeks’ leave in total). Except in some limited circumstances (such as where long-term sick leave or family-related leave is taken), workers may only take WTD leave in the leave year to which it relates, or else it is lost. A worker may, subject to their terms and conditions, be able to carry over any additional WTR leave or other leave accrued under their contract, to the next leave year.

While major UK banks and foreign banks have not put in place outright bans on taking annual leave, they have admitted to putting in place “appropriate measures” to ensure they have sufficient numbers of staff working. Having staffing resources in place will be a consideration for other sectors too.

We’re all going on a summer holiday…if the boss allows it!

We’re all going on a…strike!

Cabin crew at Thomas Cook have voted by a three to one majority in favour of strike action following the travel group’s change to rest breaks. More than half of the 1,000 staff members voted and three-quarters of those supported industrial action.

Unite, the union representing the staff, is in dispute with Thomas Cook after it reduced its cabin crew’s breaks from one 20-minute break every six hours to one 20-minute break every 12 hours worked. Unite says the cabin crew should have at least two 20-minute breaks every 12 hours.

Under the Working Time Regulations 1998, workers have the right to an uninterrupted 20-minute rest break away from their workstation if their day’s working time exceeds six hours. Statute limits this right to one 20-minute break per day if the shift is at least six hours. Therefore, even if the shift is 12 hours or more, an employer only needs to offer one break. However, this is subject to the employer’s general duty to prevent risks to health and safety. Employers may also use a collective agreement to determine the duration of any rest break and the terms on which it is granted. Thomas Cook states that the union agreed to the change in rest breaks two years ago.

The change to the rest breaks introduced by Thomas Cook accords with the Working Time Regulations as well as the minimum limits set by the Civil Aviation Authority. However, the cabin crew are advancing an argument that this change will affect the health and safety of both the crew and the passengers.

For the proposed strike to go ahead, Unite must give Thomas Cook seven days’ notice. As Unite has not yet served this notice, Thomas Cook hopes that the dispute will not affect half-term holidays. However, it may be that the strike action will disrupt summer holidays instead.

We’re all going on a…strike!

Insight: Lock v. British Gas 2.0 – employers must include commission in holiday pay

What triggered the case?

Mr Lock was employed by British Gas as a salesman. His remuneration package included a basic salary plus commission, which was calculated based on the number and type of contracts he secured from customers. When Mr Lock went on holiday, British Gas would only pay him basic pay, which was significantly less than his usual salary.

Mr Lock issued a claim against British Gas in 2012 and claimed that his holiday pay should include a sum representing the commission he would normally earn whilst at work.

What is the law?

The European Working Time Directive (EUD) provides that workers must have the right to at least four weeks’ paid annual leave. However, it does not specify how holiday pay should be calculated. In the UK, the Working Time Regulations 1998 (WTR) implement the EUD and provide that holiday pay, for a worker who works “normal working hours”, is calculated on basic salary only.

Despite the clear wording of the WTR:

1. in the case of Bear Scotland, the EAT held that the WTR can and should be interpreted to conform with the EUD, and that holiday pay must reflect a worker’s “normal remuneration”, which includes non-guaranteed overtime; and

2. on referral, the ECJ ruled that holiday pay under the EUD includes commission, to ensure workers are not discouraged from taking annual leave.

In Lock, the employment tribunal (ET) adopted the approach taken by the EAT in Bear Scotland and held that holiday pay includes commission . The ET also held that it was necessary to read the WTR in a way that conforms with EU law, even if this requires the tribunal to imply words into the WTR.

British Gas appealed the ET’s decision.

Read the full article here.

Insight: Lock v. British Gas 2.0 – employers must include commission in holiday pay