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A B C D E F G H I J K L M N O P R S T V W Y

Employment Bulletin

A regular bulletin that provides updates affecting employment issues and the related legislation and best practice.

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What employers need to know: Criminal record requests – New law change now in force

Tuesday 28th April 2015

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Employment Bulletin - Issue 282

Section 56 of the Data Protection Act 1998 (DPA) which came into force on 10 March makes it a criminal offence for employers to require applicants for a job or current employees (a “data subject”) to make a subject access request on themselves and supply the information provided to the employer. So this prevents employers from offering a contract of employment which is conditional on the applicant making a subject access request.

Employers are still able to submit a DBS check request to the Disclosure and Barring Service (previously known as the Criminal Records Bureau) when investigating a data subject’s criminal record.
However, a Disclosure and Barring Service check will only reveal a data subject’s current convictions and will not reveal spent convictions. This is a much less comprehensive check than a subject access request, which will provide details of a data subject’s full criminal record, including current convictions, spent convictions, allegations and not guilty findings.

This change in law follows recent amendments to the Rehabilitation of Offenders Act 1974, which significantly reduced rehabilitation periods for convicted criminals and has ultimately resulted in convictions becoming ‘spent’ much sooner than they previously would have.

Employers should be aware that breaches of section 56 of the DPA carries with it a potentially unlimited fine.

Practical Tip

Check your current procedures and practices to ensure all those who deal with criminal record checks are aware of this change.  

If you would like more information or to discuss any employment law matter you may have please contact:


Andrew Cross

Partner - Employment & Pensions
Tel: 0151 600 3062
Email: andrew.cross@brabners.com


What next for employment law? A look at the political manifestos

Tuesday 21st April 2015

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Employment Bulletin - Stop Press - Issue 281

In just over two weeks’ time, the polls will open for voting in what is expected to be one of the hardest fought and hardest to call elections of recent decades. Employment issues have increasingly come to the foreground as the parties have tried to position themselves as being both good for business and a recovering economy and also the champion of the exploited and underpaid. The country’s future in Europe also looms large. Now that the manifestos of the main parties have been published, we summarise some of the key policies which are being presented to the electorate.

Conservatives

Abolish exclusive zero hours contracts:

The Small Business, Enterprise and Employment Bill is expected to come into force in late 2015. Through the implementation of this Bill, the Conservatives plan to scrap “exploitative” zero hours contracts which contain exclusivity clauses. These clauses tie an individual to an organisation and prevent them from seeking work elsewhere, despite there being no obligation for work to be offered by the organisation or accepted by the individual.

Sector specific codes of conduct would also be introduced in order to regulate the use of zero hours contracts and the terms on which work could be offered and accepted.

The Institute of Directors (IoD) and Confederation of British Industry (CBI) have defended the use of zero hours contracts but have welcomed the proposal of scrapping exclusivity clauses.

Childcare:

Free childcare up to 30 hours per week will be offered to families of three and four-year-olds (where all parents are working).

Additionally, child care beyond 30 hours per week will be tax free. 

Equal Pay:

New rules requiring companies, who employ more than 250 employees, to publish details of pay levels of men and women within their organisation, would be implemented.

Illegal working and exploitation:

Tougher labour market regulation would be introduced to tackle illegal working and exploitation. Data from multiple agencies, including Exit Checks data, would be considered to identify illegal immigrants and businesses that employ illegal workers.

Income tax:

A conservative government would pass a law to ensure than anybody working up to 30 hours on minimum wage would continue to pay no income tax.

The tax-free personal allowance would also be raised from £10,600 to £12,500 and the starting point for 40% higher tax rate would be raised from £42,400 to £50,000.

Introduction of a British Bill of Rights:

A British Bill of Rights which will replace the Human Rights Act 1998. The Bill would remove Britain from the jurisdiction of the European Court of Human Rights and therefore allow UK courts to ultimately rule on Human Rights issues.

The Equality and Human Rights Commissions has stated that abolishing the Human Rights Act 1998 would be a potentially “regressive step” in the protection of fundamental rights. The Law Society has also commented that the Human Rights Act 1998 should be “retained, not replaced”.

Minimum Wage and Living Wage:

A Conservative government would accept the recommendations of the Low Pay Commission and would increase the National Minimum Wage to £6.70 per hour. The National Minimum Wage would be on course to increase to £8 per hour by the end of the decade.

The Living Wage would also be supported and businesses would be encouraged to pay it whenever they can afford it. However, it is not clear how this would be implemented in practice.

National Insurance Contributions for young apprentices:

Employers’ National Insurance Contributions (NICs) will be abolished for earnings up to the upper earnings limit for young apprentices under 25.

Protection from disruptive and undemocratic strike action:

At least 50% of the workforce must participate in a vote in order for a strike to be lawful.

In relation to essential public services, an addition requirement of at least a least 40% of all those entitled to take part in a strike ballot must vote in favour of the strike for it be valid. 

Volunteering Leave:

Workers who work for a “big company” (more than 250 employees) or within the public sector will be entitled to Volunteering Leave for three days per year, on full pay. Paid Volunteering Leave would be paid for by the employer.

Labour

Abolishing the current employment tribunal fee system:

A Labour government would abolish the current employment tribunal fee system by significantly reducing the costs associated with issuing and undertaking tribunal claims.

However, the Confederation of British Industry (CBI) has suggested that, whilst the current system could be improved upon, abandoning it completely could be a mistake. The CBI stated that the current system encourages early resolution of disputes but have also suggested that the current levels of fees may prevent access to workplace justice.

The Institute of Directors (IoD) has also stated that the current tribunal system is a “sensible way to weed out weak or vexatious claims”.

Ban exploitative zero hours contracts:

Zero hours contracts would be banned where an individual has worked regular hours for the same organisation for at least a 12 week period. Individuals who have worked regular hours for this period will have the right to be offered a regular contract.

Childcare and Parental Leave:

Free childcare would be expanded from 15 to 25 hours for working parents of three and four-year-olds. Additionally, parents of primary school children would be guaranteed to have access to childcare from 8am to 6pm, through their local primary schools. 

Paid paternity leave would double from two weeks to four weeks and the amount paid will increase from £140 to more than £260 per week.

Equal Pay:

“Large companies” would be required to publish details of their gender pay gap.

Illegal working and exploitation:

A Labour government would make it a criminal offence to undercut wages by exploiting migrant workers.

Evidence must be provided to show that some abuse of power has occurred and that a migrant worker was employed on significantly different terms to local employees. As yet, it is not clear how this would be achieved.

Labour would also close loopholes which allow employment agencies to undercut wages of permanent staff and would ban employment agencies recruiting only from abroad.

Income Tax:

A Labour government would not increase the basic or higher rates of income tax or National Insurance.

The 50% top rate of income tax would also be introduced for people earning over £150,000 per year. A 10% starting tax rate would also be re-introduced.

Minimum Wage and Living Wage:

The National Minimum Wage would be increased to over £8 per hour by October 2019.

Tax rebates would be introduced to employers offering a Living Wage to employees.

Liberal Democrats

Childcare and Parental Leave:

Up to 20 hours per week of free childcare would be offered to all parents with children aged two to four years, and all working parents from the end of paid parental leave to two years.

However, initially only 15 hours of free childcare per week would be offered to parents of all two-year olds. The Liberal Democrats would then prioritise 15 hours free childcare for all working parents with children aged between nine months and two years.

Fathers of children would be granted an additional four weeks of paid paternity leave. This would be a “day one” right.

Classification of Employees, Workers and Self-Employed:

The Liberal Democrats would “ensure employers cannot avoid giving their staff rights or paying the minimum wage by wrongly classifying them as workers or self-employed”.

Employment Tribunal Fees:

Employment Tribunal fees would be reviewed to ensure that they are not a barrier to workplace justice.

Equal Pay:

New rules requiring companies, who employ more than 250 employees, to publish details of pay levels of men and women within their organisation, would be “swiftly implemented”.

By 2020, companies would also need to publish details relating to the number of people paid less than the Living Wage and the ratio between top and median pay.

Income Tax:

The tax-free personal allowance would be raised to £12,500.

“Strict rules” will also be put in place to ensure that “the richest” pay their “fair share” in income tax.

National Minimum Wage and Living Wage:

The Liberal Democrats would ask the Low Pay Commission to look at ways of raising the National Minimum Wage, without damaging employment opportunities.

An independent review will be established to consult on how to set a fair Living Wage across all sectors. It is anticipated that this Living Wage will be paid in all central government departments from April 2016 and all other public sector employers will be encouraged to do likewise.

Strike action:

The Liberal Democrats would introduce mandatory arbitration for strikes likely to cause widespread public disruption, which would enable them to “defend workers’ rights to strike while ensuring continued service in essential public services”.

Zero Hours Contracts:

Zero hours contract workers will benefit from a formal right to request a fixed contract.

The Liberal Democrats will also consult on introducing a right to make regular patterns of work contractual after a period of time.

SNP

Better paid jobs:
 
SNP will vote to increase the minimum wage to £8.70 by 2020 and support measures to extend the Living Wage across the UK. The Scottish Government already pays the Living Wage to all of its own employees and to those covered by its pay policy. SNP will call on, and vote for, the UK government to adopt the same policy.
 
Opposing withdrawal from the European Union:
 
At least 33,000 Scottish jobs are dependent on our membership of the single market. SNP will oppose a referendum on membership of the EU. Being part of Europe is good for business and it supports jobs in Scotland and across the UK.
 
Immigration policy that works for Scotland:
 
SNP will seek the reintroduction of the post study work visa, so those that Scotland has helped educate are able, if they so choose, to make a contribution to Scotland’s economy.
 
Focus on job creation:
 
SNP support targeted reductions to employer’s National Insurance Contributions to support job creation and the extension of the Living Wage.
 
SNP support an increase in the Employment Allowance from £2,000 per business per year to £6,000 per business per year, reducing the cost of creating and maintaining jobs.
 
Fair work:
 
SNP will support tough action to end exploitative zero hours contracts.


UKIP

National Minimum Wage:

UKIP will enforce the National Minimum Wage and reverse the Government cuts in the number of minimum wage inspectors in England and Wales.

Working Time:

Working time rules would be amended to give trainee doctors, surgeons and medics the proper environment to train and practise.

UKIP have also suggested that the Working Time Directive needs to be amended as it “restricts the British work ethos and therefore the economy”, but have also said that workers’ rights would continue to be protected.

Zero Hours Contracts:

Zero hours contracts would not be banned but a Code of Conduct would be introduced.

The code would stipulate that businesses hiring 50 people or more must give workers a full time or part time secure contract after one year, upon the workers request.

Also, no zero hour contract would be allowed to contain an exclusivity clause.

Workers would also need to be given at least twelve hours advance notice of work and, once this notice is given, would need to be paid even if they were subsequently not required to work.

Restrict access to EURES:

Employers would be allowed to employ British citizens ahead of foreign workers.

Access to EURES (the EU-wide jobs portal which acts as a source for employers looking for cheap labour from overseas) would be restricted.

Human Rights Laws:

The UK would be removed from the jurisdiction of the European Court of Human Rights and the UK Supreme Court would act as final authority on Human Rights matters.

The Human Rights Act 1998 would also be repealed. It would be replaced with a UK Bill of Rights.

The Green Party

Employment Tribunal Fees:

Employment Tribunal Fees would be reduced so that tribunals would be accessible to workers.

Equal Pay:

Equal pay for men and women would be “made a reality”.

Maximum Pay Ratios:

A maximum pay ration of 10:1 between the best paid and worst paid in every organisation.

National Minimum Wage and Living Wage:

The National Minimum Wage would be increased so that it is a Living Wage. The Green Party propose to ensure that the National Minimum Wage is £10 per hour by 2020 and an increase the National Minimum Wage to £8.10 generally in 2015.

Trade Unions:

The role of democratic trade unions would be revived. This would include the right for a worker to belong to a union and the right to have an employer recognise it.

The right to take industrial action would also be revived.

Zero Hours Contracts:

“Exploitative” zero hours contracts would be banned.

If you would like more information or to discuss any employment law matter you may have please contact:


Joseph Shelston

Partner - Employment & Pensions
Tel: 0151 600 3162
Email: joseph.shelston@brabners.com

 

  


Holiday Pay - Latest Update: Where Do you Stand?

Friday 13th March 2015

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Employment Bulletin – Issue 280

Following the judgment of the Employment Appeal Tribunal (EAT) in the conjoined cases of Bear Scotland Ltd v Fulton and another, Hertel (UK) Ltd v Woods and others and AMEC Group Ltd v Law and others, in which it was decided that holiday pay calculations should include compulsory, non-guaranteed overtime, the Government announced that it would impose a cap of 2 years on backdated claims for holiday pay.

The announcement was the result of a taskforce, set up by the Department for Business, Innovation and Skills (BIS) immediately after the decision, to assess the impact of the decision in Bear Scotland on businesses. In imposing the cap, BIS declared that it was “taking action to protect UK business from the potentially damaging impact of large backdated claims” and to “give certainty to workers on their rights”.

The EAT in Bear Scotland ruled that claims for underpaid holiday could be brought as a series of claims for unlawful deductions from wages, but a break of more than 3 months between underpayments of holiday pay would break the chain and employers would not be liable for those earlier payments. The judgment left many employers fearing claims for holiday pay dating back to 1998, when the Working Time Regulations (the legislation which governs holiday entitlement) came into force. However, from 1 July 2015, such claims will be subject to a cap of 2 years. Claims brought in the meantime will be subject to the current rules.

Regulations are now in place to give effect to the decision to limit backdated holiday pay claims to 2 years.

The Unite union, which represented the workers in Hertel and AMEC (but not Bear Scotland), confirmed at the end of last year that those workers would not be appealing the EAT’s decision. We are not aware of there being appeals planned by any parties in the conjoined cases though there have been conflicting rumours since the decision.

These developments will ease, to some extent, the worries of employers who feared a flurry of holiday pay claims. It also provides a little more clarity for both employers and employees in a tricky and evolving area of law.

If you wish to discuss any issues you may have about holiday pay please do not hesitate to contact either:


Lee Jefcott

Senior Associate - Employment & Pensions
Tel: 0161 836 8898
Email: lee.jefcott@brabners.com

 


Kate Venables

Associate - Employment & Pensions
Tel: 0151 600 3151
Email: kate.venables@brabners.com

 


Shared Parental Leave starts 5 April – Latest Update

Tuesday 24th February 2015

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Employment Bulletin - Issue 279

There are only 7 weeks to go until your employees with babies due on or after 5 April 2015 can start sharing up to 50 weeks of parental leave. 285,000 working couples a year are expected to be eligible for Shared Parental Leave (SPL) and a recent survey by the Department for Business, Innovation and Skills (BIS) indicates that more than half of the UK believes that childcare should be shared equally between parents.

On 18 February 2015, Employment Relations Minister Jo Swinson released a press release about the imminent introduction of SPL, stating that:

“Shared Parental Leave will kickstart a change where fathers feel empowered to take time off to look after their kids and not feel constrained by outdated stereotypes. We recognise that this isn’t going to be easy for those at the forefront of the change but we also know that for many dads the nerves they feel about having a conversation with their boss around leave will be worth it in the end.

Countless research studies show that more time with dads early on leads to better outcomes for children, not to mention the special family bond it creates. We also know that many employers are incredibly supportive and keen to offer mums and dads more flexibility. Employers will see the benefit in terms of staff loyalty and providing women the option to return to work earlier. That’s why employers like Shell, Deloitte, Linklaters, PwC and the civil service are offering parents enhanced shared parental pay in line with their maternity packages.”

BIS have also released an online tool on their website which employees can use to check whether or not they are eligible for SPL. 

Eligible employees need only give you, as an employer, 8 weeks’ notice of their intention to take SPL and the pattern they wish to take.  The leave can be shared in different ways: parents can take time off together for extra support, or “hand-over” to one another in separate blocks of leave.

SPL leave requests may start landing on your desk now. It is important your business makes preparations now to be ready to deal with SPL requests. Do you know:

  • How to assess eligibility for SPL?

  • How to manage leave requests fairly?

  • Whether your business will offer an enhanced SPL package and if, so what that is?

Free guidance



We’ve produced a FREE guidance document to help employers quickly understand the process for handling requests and what action to take now.

 




Document Pack

We’ve also designed a document pack to give practical help to employers so they remain compliant when dealing with requests.

The pack costs just £75 + vat and includes:

  • A shared parental leave policy that reflects the new laws and best process to follow
  • A suite of ready to use letters and forms that can be used to handle the shared parental leave process.

Please email us at SPL@brabners.com if you would like to take up this offer or if you require any other advice about dealing with shared parental leave.

Rachael Kirkup
Rachael Kirkup

Solicitor, Employment & Pensions
Tel: 0161 836 8860
 

 


Elspeth Beatty
Solicitor, Employment & Pensions
Tel: 0151 600 3114
 


TUPE service provision changes – which employees are in scope to transfer?

Friday 9th January 2015

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Employment Bulletin - Issue 278

The ruling of the EATs in Costain Ltd v Armitage and ERH (Costain) and London Borough of Hillingdon v Gormanley (Hillingdon) have highlighted that, for an employee to be eligible to transfer under TUPE where there has been a service provision change, the employee must have consciously been put into a group to service the contract which is to be transferred; it is not sufficient that the employee happens to spend the majority of their time delivering the contract.

What is a service provision change?

A service provision change usually occurs when a client engages a contractor to carry out activities on its behalf, or subsequently reassigns the contract, or brings the work back “in-house”. Provided certain conditions are met, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) ensure that the employment contracts of the employees who were assigned to work on the contract in question are automatically transferred from the transferor to the transferee. One of the conditions is that there must be “an organised grouping of employees” whose “principal purpose” is “the carrying out of the activities concerned on behalf of the client”.

What constitutes an organised group of employees?

In the Costain case, Mr Armitage was a project manager for ERH, who provided communications services under a contract for the Welsh Assembly. The contract came up for tender and was transferred to Costain. ERH asserted that Mr Armitage had transferred to Costain under TUPE as, immediately before the transfer, he had spent 67% of his time working on the contract. Both Costain and Mr Armitage contested that his employment contract had been transferred.

The EAT held that, despite the fact that Mr Armitage had spent the majority of his time on the contract immediately before the transfer, the nature of his role meant that his principal purpose was not the carrying out of activities for the Welsh Assembly under the contract. His role was to concentrate on activities under a number of contracts (including that for the Welsh Assembly), some of which had not been transferred to Costain. Mr Armitage had not been consciously assigned to the grouping of employees servicing the Welsh Assembly contract; rather, he had been involved in the work under the contract for a significant period of his working day, by happenstance.

As with the lorry drivers in the Eddie Stobart Ltd v Moreman and Others case, because there had not been any deliberate planning or intent to organise the employee in question into a group by reference to the requirements for the particular client, the employee fell outside of the scope of TUPE and did not transfer.

A central question in the Hillingdon case was whether the three claimant employees were assigned to an organised grouping of employees, the principal purpose of which was to carry out painting and decorating work for housing stock on behalf of Hillingdon, the client.

The EAT held that the Employment Tribunal Judge had failed to consider the contractual duties of the employees and their role in the organisational framework of the alleged transferor. Under their contractual terms and conditions, the employees could be required to perform duties other than for Hillingdon (e.g. one of the employees was company secretary). As such, the EAT ruled that the employees were not assigned to an organised group of employees servicing the Hillingdon contract.

Conclusion

When considering the application of TUPE to service provision changes, it is important to clearly define the “organised grouping of employees” before assessing whether an employee has consciously been assigned to that group. The percentage of time spent by an employee working on a particular contract should not automatically indicate his inclusion in (or exclusion from) the organised grouping of employees who will transfer under TUPE. There also needs to be evidence of a conscious decision to organise the employee(s) to service a particular client. Regard should always be had to the way the organisation is structured and the employee's contractual duties within that organisation.

Practical tips

Bidders for contracts should request as much information as possible from the current service provider, to ascertain which employees (if any) will transfer. Information about percentage of time spent servicing a contract may not provide a full picture as to whether an employee is truly assigned to an organised group, essentially dedicated to delivering the service.

Consider requesting other information to help determine whether there has been a conscious decision to organise the employees to service the particular client and/or whether their contractual terms require them to perform duties other than for the client in question e.g. employee’s job description; job title; shift pattern; contract of employment; ‘team’ organisational charts and memos, etc.

Consider requesting access to the outgoing provider’s staff pre-transfer, to interview them and find out more information about how they spend their time on a weekly basis.

How Brabners can help

Brabners regularly provides TUPE advice to incoming and outgoing providers of services, in relation to outsourcing agreements and service provision changes.

For more information or to discuss how we can help you please contact:

Rachael Kirkup
Rachael Kirkup

Solicitor, Employment & Pensions
Tel: 0161 836 8860
Email: rachael.kirkup@brabners.com

 


 

 


Shared Parental Leave is here - Be prepared to deal with requests

Thursday 11th December 2014

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Employment Bulletin - Issue 277

The new shared parental leave system came into force on 1st December 2014. It gives your eligible employees the option to share up to 52 weeks’ leave with their partner/the child’s other parent, in order to care for their child.

The new regime applies to employees expecting a baby on or after 5 April 2015, and the Government has said that about 285,000 working couples will be eligible to share leave under the new rules.

Expectant mothers due in April 2015 will be considering their options – so expect shared parental leave (SPL) requests to arrive from your staff soon!

  • Are you ready to deal with a potential flurry of requests to take SPL?
  • Do you know what the process is for dealing with requests and who will be eligible?
  • Do you know how SPL will affect your current maternity and paternity leave policies?



We’ve produced a FREE guidance document to help employers quickly understand the process for handling requests and what action to take now.

 




Document Pack

We’ve also designed a document pack to give practical help to employers so they remain compliant when dealing with requests.

The pack costs just £75 + vat and includes:

  • A shared parental leave policy that reflects the new laws and best process to follow
  • A suite of ready to use letters and forms that can be used to handle the shared parental leave process.

Please email us at SPL@brabners.com if you would like to take up this offer or if you require any other advice about dealing with shared parental leave.

Rachael Kirkup
Rachael Kirkup

Solicitor, Employment & Pensions
Tel: 0161 836 8860
 

 


Elspeth Beatty
Solicitor, Employment & Pensions
Tel: 0151 600 3114
 

 


Ministry of Defence entitled to give agency worker’s role to permanent employee

Thursday 20th November 2014

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Employment Bulletin - Issue 276
AWR Update

An Employment Tribunal has found that the Agency Workers Regulations 2010 (AWR) do not preclude an employer from favouring permanent, internal candidates over agency workers during the selection process.

Under the AWR, agency workers have the right to the same basic working and employment conditions as employees who are directly recruited by the hirer. This includes the right to be informed by the hirer of any relevant vacant posts, to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.

In the recent case of Coles v Ministry of Defence (MoD), Mr Coles was an agency worker with the MoD. His assignment began in 2005 and he was advised that it could be terminated at any time. In 2013, a restructuring exercise resulted in over 500 permanent MoD employees being put into a redeployment pool.

Available jobs were advertised on the Civil Service Jobs website. The Civil Service recruitment process has 4 stages, the first 3 of which give priority to internal candidates; external candidates may only be considered at stage 4. As Mr Coles already worked for the MoD and had a MoD email address, he was entitled to register on the Civil Service website to receive notifications of vacancies only made available to internal candidates in the first 3 stages of the selection process. Mr Coles registered with the Civil Service website. Records show that he was sent an email to activate his account, however he claimed never to have received the email and so his account was not activated.

In June 2013, a few days before the closing date for applications, Mr Coles was informed that his role was being advertised on the Civil Service website. As Mr Coles had not activated his account, he was unable to find his post advertised on the website. He was informed by HR that he would only be able to apply for the post if and when it became available to external candidates under stage 4 of the recruitment process. The MoD appointed an internal candidate to the post at stage 1 of the selection process and Mr Coles’ assignment was terminated.

Mr Coles brought a claim in the Employment Tribunal alleging breach of Regulation 13 of the AWR (rights of agency workers in relation to access to employment). The Tribunal rejected his claim. It was held that, had Mr Coles activated his Civil Service account, he would have received details of his post being advertised on the website. The Civil Service Jobs website was an appropriate medium for informing agency workers of vacant positions. Furthermore, the Tribunal accepted that, even if Mr Coles had applied for his own post, his application would have been rejected on the basis that he was not an internal employee. It was held that there was nothing in the AWR or the Agency Workers Directive to prevent an employer from favouring internal employees who are at risk of redundancy or who have been placed in a redeployment pool over agency workers.

Therefore, when selecting candidates for job vacancies, according to this decision, end user hirers are entitled to favour a permanent employee with the requisite qualifications over an agency worker already working for the hirer.

NEW: Follow our Employment team on our new Recruitment Agencies Twitter link: @BrabnersRec


Government to provide additional guidance on record-keeping under the Agency Workers Regulations

Thursday 20th November 2014

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Employment Bulletin 276 - Issue 276
AWR Update

The Government has recently announced the results of its consultation and review of the Agency Workers Regulations 2010 (AWR). The review was focused on the record-keeping requirements for hirers and temporary work agencies.

Currently, the AWR does not prescribe the records which should be kept in order to remain compliant with the regulations.  Following the Government’s consultation with temporary work agencies, businesses, trade and employee representative organisations, it was found that temporary work agencies often struggle to obtain information from hirers about the terms and conditions of their directly recruited employees. This information is vital to ensure that agency workers receive the same basic working and employment conditions as the hirer’s direct recruits, after completing the 12 week qualifying period.

The risks of not keeping and sharing adequate information regarding agency workers and direct recruits were highlighted in the recent Employment Tribunal case of Stevens v Northolt High School. In this case, Miss Stevens was awarded more than £10,000 for breach of equal pay rights under the AWR. The hirer was held liable for the payment, after repeated requests by the temporary work agency for information regarding the terms and conditions of the hirer’s direct recruits were unanswered.

In responding to the Government’s consultation and review, temporary work agencies were clear that the main guidance on the AWR shouldn’t be changed, as this could cause confusion. Rather it was suggested that supplementary guidance be produced, aimed specifically at hirers, to explain what information should be supplied to agencies and why. The hope is that this will reduce the need for temporary work agencies to make repeated requests for information and will enable both hirers and agencies to remain compliant with their obligations under the AWR.

NEW: Follow our Employment team on our new Recruitment Agencies Twitter link: @BrabnersRec


Business Critical: Holiday Pay Audit

Tuesday 4th November 2014

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Employment Bulletin - Stop Press - Issue 275

It has been widely reported this morning that the Employment Appeal Tribunal has ruled that employers must include overtime in the calculation of holiday pay.

The decision in the case of Fulton v Bear Scotland Limited confirms a trend which indicates that other payments such as commission, shift allowances and some types of bonus should also be included in the holiday pay calculation.

The financial implications of this decision for employers are significant given government estimates that one sixth of the UK workforce are paid some form of overtime.

However, fears of a “holiday pay timebomb” of back pay claims are perhaps being overstated as the judgment confirms that claims for back pay will be out of time if there has been a break of more than three months between successive underpayments.

The decision is already attracting widespread comment from both business and trade union organisations and there is no clear guidance yet as to how employers should deal with this issue in the workplace. Appeals to the higher Courts are likely to follow.

It is business critical for all employers to consider their methods of calculating holiday pay, their potential exposure to claims and how they should respond to this decision.

This decision has been anticipated for a number of months and Brabners have been helping clients in planning their response.

Brabners holiday pay audit service will review and report on these areas for you to ensure that you are properly advised on any liabilities and how they might be addressed.

To arrange a free telephone conference to discuss a holiday pay audit, please contact either:


Kate Venables

Associate, Employment & Pensions
Tel: 0151 600 3151
Email: kate.venables@brabners.com

 

Joe Aiston
Solicitor, Employment & Pensions
Tel: 0161 836 8955
Email: joe.aiston@brabners.com


Non-competition restrictive covenants: The importance of accurate drafting

Friday 31st October 2014

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Employment Bulletin Issue 274

Background to restrictive covenants

Described as “the most powerful weapon in the employer’s armoury”, non-competition restrictive covenants have the potential to significantly restrict a former employee’s activities. Consequently, such covenants are void for being in restraint of trade and contrary to public policy, unless the employer can show that they have a legitimate interest to protect and the protection sought by the covenant is no more than is reasonable.

Traditionally, the courts will not enforce restrictive covenants which are drafted too widely. Similarly, covenants which are drafted too narrowly will not be construed as having a wider application than the wording, on the face of it, suggests.

Prophet plc v Huggett [2014]

Prophet plc was a software developer for the fresh produce industry. Mr Huggett was employed as its sales manager. His employment contract contained a non-competition restrictive covenant which prevented him from being employed “in any area and in connection with any products” with which he was involved whilst employed by Prophet plc.

The High Court held that the literal reading of the covenant provided Prophet plc with no protection at all. This was because no competitor would ever be selling Prophet products, which were the only products with which Mr Huggett would have been involved whilst employed by the company. However, the Court went on to infer that the true intention of Prophet plc at the time of entering into the covenant, was to extend the restrictive covenant to cover similar or competing products, not simply the specific products which Prophet developed.

The Court of Appeal unanimously allowed an appeal by Mr Huggett, refusing to extend the wording of the covenant to include “similar or competing products”. The Court of Appeal emphasised the importance of giving careful thought to the underlying intention of a party when drafting a non-competition restrictive covenant.

Following the Court of Appeal’s decision, Mr Huggett was free to work for a new employer, selling products that competed directly with Prophet’s products.

Lessons learnt

The Prophet case shows that you cannot rely on the courts to infer what you meant by ambiguous drafting in restrictive covenants. Drafting errors will not easily be rectified by the courts.

It is therefore imperative that serious thought is given to the true intentions of your business when drafting a restrictive covenant and that the appropriate wording is chosen accordingly. This is particularly important for businesses who sell a unique product or service and who wish any non-competition restrictive covenants to extend to similar or competing products or services, not simply the ones which they themselves provide.

How Brabners can help

Brabners can help you review and draft employees’ restrictive covenants to ensure that they clearly reflect your business’s intentions and are not open to misinterpretation by the courts.

For further assistance please contact:

Rachael Kirkup
Rachael Kirkup

Solicitor, Employment & Pensions
Tel: 0161 836 8860
Email: rachael.kirkup@brabners.com


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