Why Lord Sugar isn’t sweet when Apprentices Mis-sell.

For those of us still hooked on the TV show, “The Apprentice”, you are bound to have noticed that nothing invokes the scorn of Lord Sugar more than when candidates describe their goods or services with a dash of creative licence. Whether it be organic burgers that aren’t so organic or French mussels which are more at home in Brighton than Brittany there is a real legal reason why Lord Sugar has to come down hard when candidates push the truth a little too far.

The primary legislation governing this area is called the Consumer Rights Act 2015 and this lays out the various rights consumers in Britain enjoy when buying goods and services. When it comes to the description of goods, the law requires that every contract is deemed to have an implied term that the goods will match the description given by the seller. It doesn’t matter if the goods were available for inspection or if the seller later amends the description; if the original description is false then the buyer has certain legal rights.

In general these rights entitle a consumer who has been mis-sold a product to either reject the goods (subject to certain time-scales); obtain repair or replacement of the goods; or, have the purchase price reduced to reflect the mis-description.

The law further protects consumers by presuming that any mis-description discovered by the consumer within 6 months from when the goods were delivered existed at the time when the product was originally bought and it is up to the seller to prove otherwise.

In addition to these civil legal rights that consumers enjoy, Trading Standards Officers also have the power to bring quasi-criminal proceedings against those who have deliberately or recklessly mis-sold goods and services. Accordingly, it is hardly surprising that Lord Sugar keeps a careful eye on the activities of his candidates and hopefully this reinforces the point that mis-selling goods is no light matter.

If you have been mis-sold goods or services or have any questions arising from the contents of this blog please contact our Dispute Resolution Team who will be happy to assist you.

Alastair Johnston, Dispute Resolution
Senior Solicitor
@BlackaddersLit
www.blackadders.co.uk

 

 

 

Lord Alan Sugar: Photo by James Cronin, www.flickr.com, 2009

Season 2.2: How to give a good reference? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 2: Simon & Richard answer a tweet from Condies Accountants & Advisors ‘What advice would you give to employers if asked by an ex employee for a reference?’. They give examples of accurate, inaccurate and misleading references. If that isn’t enough for you there’s also a bit of singing and James Bond to keep you entertained!!

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the lastest episode here:
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP

Blackadders Rural Team Recap: RSABI Great Glen Challenge 2017

Challenges are often set to test the limits of one’s mental and physical capabilities. By pushing the limits, there is often great gratification and relief in conquering difficult circumstances. As we wrote earlier in the year, members of Blackadders Rural Team completed the Great Glen Challenge on the beautiful West Coast of Scotland from Fort Augustus to Fort William on 25 August 2017.

As the event has passed, we look back at the success of not only our competitive prowess but our fundraising effort. Challenges occurred before the event itself, as the team faced an initial hurdle with Captain Hazel Anderson succumbing to unfortunate sickness was to be unable to race. Luckily, without missing a beat, Blackadders Rural intern and now Trainee Solicitor, Blair Duncan, stepped into the shoes of Hazel and took the final place in the team. Blair proved an excellent addition and slotted into the Walking event, moving Aberdeen’s Ellen Eunson to compete in the Kayak section. Elizabeth Wilson kicked off the event for the team with the Mountain Biking section, and the team (including their support driver Rab Eunson and team mascot Scooby the chocolate labrador) all meeting at the finish line to see Dave Halligan complete the final leg of the Running race.

The team’s efforts led to placing a respectable 19th overall in the competition and were glad on all fronts to see the finish line. After the event, the team was glad to mingle with other teams at the following reception and award-giving along Neptune’s Staircase in Fort William.

As the team has mended their muscles from their events, we note that we could not completed the Great Glen without the generous support of our sponsors and donors. This of course was coupled kind words of encouragement, near and far.

In terms of fundraising, and as RSABI is a charity that aids those facing hardship in agriculture across Scotland, a cause that our department holds very dear to our hearts, and we are grateful that you helped us achieve our goal. The final tally for our fundraising was £1,535, which was £500+ above our set goal. In total, counting gift aid, Team Blackadders raised £1,831.25 for RSABI, which we believe is a huge success.

At present, there are no further athletic events planned for the Blackadders Rural team, however we feel confident that if called upon, our will, determination and success in the Great Glen Challenge would place us well in any challenge across the Firm.

This Challenge, of course, comes with the huge backing of the Blackadders Rural department with Partner Petra Grunenberg, Directors Gail Clarke and Gillian Gibbons who though were not in Fort William, were behind the team all the way.

Thank you to all those who supported us across our endeavour in this RSABI Challenge.

David Halligan, Trainee Solicitor
@RuralDavie
www.Blackadders.co.uk

 

 

 

Why preventing tax evasion is now on the board agenda

 

The UK’s Government has again been busy creating new corporate crimes to help enforce its policy objectives.  This time it relates to tax evasion, or more accurately “failure to prevent the facilitation of tax evasion”.  Two new offences came into force on 30 September 2017 in the Criminal Finances Act 2017 – one for UK tax evasion and one for foreign tax evasion. As the HM Revenue & Customs (HMRC) press release says: “It is already a crime to evade tax, or deliberately help another person to do so, but on behalf of the majority of taxpayers who pay what is due, the UK government is taking an even firmer stance on corporate fraud in a move designed to drive a change in corporate culture.” Much like anti-bribery and corruption rules your company’s defence is to prove you have reasonable prevention procedures in place. HMRC has provided guidance  on this, which this blog summarises for you.

Who is this relevant for?

All companies and partnerships in all industries will need to put some prevention procedures in place. Higher risk sectors e.g. accountancy, tax advice, wealth management and legal services will need to do more.

What are the offences?

There’s three parts: (1) a taxpayer commits criminal tax evasion, (2) a person who is acting on behalf of your company or partnership commits an offence by “deliberately and dishonestly” helping the taxpayer evade tax (“facilitation”), and (3) the company failed to take reasonable steps to prevent this criminal facilitation.  Part (3) is the corporate offence and the only part that’s new. For the UK tax evasion offence the company or its business could be based abroad. For the foreign tax evasion offence only the company, its business or some of its staff needs to be based in the UK. It doesn’t matter whether the senior management / board were aware of the facilitation or not.

What’s tax evasion (illegal) and what’s tax avoidance (legal)?

This is not an easy question as the line is increasingly blurred but the HMRC guidance provides some examples of criminal facilitation of tax evasion:

·         A mid-size car parts maker operating in the UK and Europe, entered into a sub-contracting arrangement with an UK distributor. The senior managers of the UK distributor created a false invoicing scheme with the assistance of a purchaser, allowing the purchaser to evade UK taxes due on its purchase of the car parts in the UK.

·         As part of a large transaction an employee of a UK-based multinational bank knowingly referred a corporate client to an offshore accounting firm with the express intention of assisting the corporate client to set up a structure allowing the client to evade foreign income tax.

Existing procedures won’t cut it
Companies and partnerships who operate in the UK or deal with UK tax will need to put in place yet more compliance procedures – HMRC is very clear that your existing anti-bribery and corruption, fraud prevention or financial crime prevention procedures (if applicable) will help but aren’t enough on their own.

So what do you need to do? According to HMRC guidance every company and partnership needs to firstly undertake a risk assessment of the products and services it offers, as well as internal systems and client data that might be used to facilitate tax evasion. This includes “sitting at the desk” of employees and other associated persons, considering the motive, means and opportunity for facilitating tax evasion. When doing this you should consider typical fraud “red flags”, for example:

  • Are there staff who refuse to take leave and do not allow anyone else to review their files, or are overtly defensive over client relationships?
  • Do existing processes ensure that for higher risk activity at least a sample of files are routinely reviewed by a second pair of eyes?

Then consider tailoring existing processes and procedures accordingly to prevent and detect potential tax evasion facilitation – this could include:

Having a commitment to preventing the involvement of those acting on your behalf in the criminal facilitation of tax evasion, demonstrated by issuing a prominent message from the board of directors, partners or leadership team against all forms of tax evasion;

  • Having terms in contracts with employees and contractors requiring them not to engage in facilitating tax evasion and to report and concerns immediately;
  • Providing regular training for staff on preventing the facilitation of tax evasion;
  • Having clear whistle-blowing procedures;
  • Ensure your pay and bonus policy/structure encourages reporting and discourages pursuing profit to the point of condoning tax evasion;
  • Having regular reviews of the effectiveness of prevention procedures and refining them where necessary; and
  • Monitoring and enforcing compliance with prevention procedures.

These are merely the basics for SMEs and need to be tailored to the organisation’s specific risks. Larger or higher risk companies and partnerships will need to do more on top of this to comply but may have guidance from their sector regulator to help them.

When do we need to do this?

 HMRC is expecting you to be doing your risk assessments and initial staff communications now and to have a clear timeframe for putting the other procedures in place.

Getting help

For more information or help with complying contact the Corporate Team at Blackadders. Thanks to Sara Scott, our Regulation & Compliance Manager for input to this article.

 

Campbell Clark, Partner – Corporate and Commercial @CampbellJSClark

www.blackadders.co.uk

 

 

Season 2.1: How to be a good witness? | Employment Lawyer In Your Pocket

blackadders logoSeason 2, Episode 1: Simon and the Jack answer a tweet from Fairways HR ‘How to be a good witness?’ What makes a credible & reliable witness? Can you guess the Family Guy witness? Listen to find out more on how to be a good witness.

 

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail. Thanks for listening!

You can also download this podcast free on iTunes.

You can listen to all of Season 1 here:

Step 8: How to Handle A Disciplinary Appeal Hearing?
Step 7: What Happens If An Employee Fails To Attend A Disciplinary Hearing?
Step 6: How Do I Communicate A Fair Dismissal?
Step 5: What Is The Role Of HR In A Formal Meeting?
Step 4: How To Conduct A Disciplinary Meeting
Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

#ELIYP

The suspense *suspension* is killing me

We are often asked as advisors of employers whether it is appropriate for a client to suspend one of their employees pending a disciplinary hearing.   Is suspension a safe course of action?

Check your disciplinary procedure

The starting point is to look at the company disciplinary procedure to ascertain whether there is provision for suspension. For example, many organisations provide that suspension may be implemented if the circumstances could be deemed gross misconduct.

ACAS Code

It is also wise to consider the ACAS Code of Practice on Disciplinary and Grievance Procedures. Paragraph 8 of the Code makes it clear that where a period of suspension with pay is considered necessary, it should be as brief as possible, should be kept under review and should be made clear that suspension is not seen as a disciplinary action.

Knee jerk reaction

Some employers suspend as a matter of routine in all cases which could lead to disciplinary action. This approach is wrong and not without real risk. Employers need to weigh up each case on its own merits and decide whether a suspension is in fact necessary (to use the ACAS wording). A knee jerk suspension without any balancing act by the employer to weigh up the pros and cons is open to challenge.

Neutral act?

Employers often describe suspension as a neutral act. The employee is still on full pay and gets to sit at home or go to the pub, so where’s the harm, right? Well many employees often find the act of suspension humiliating and distressing. A recent case has demonstrated further why employers should always think before suspending.

The case

In Agoreyo v London Borough of Lambeth, a teacher was suspended due to the force she used in dealing with 2 children. Her employer’s stated rationale for the “neutral” suspension was to allow an “investigation to be conducted fairly”. The employee resigned immediately in response to the suspension and pursued a claim for damages arising from breach of contract (the act of suspension being the breach). She had only been employed for 5 weeks at the time of suspension. The High Court held that the act of suspension was a repudiatory breach of the implied term as to trust and confidence. The employee was successful.

Summary  

The Agoreyo judgment makes it clear that employers are no longer on safe ground to hand out knee jerk suspensions. This approach risks breaching the employment contract.

What should employers do?

Weigh up the pros and cons of suspension. Consider whether there are any alternatives to suspension. Listen to the employee’s version of events before reaching a decision. Document the considerations in the letter of suspension so that the letter backs up the “Why?” question.

Take advice before implementing a suspension.

Jack Boyle
Associate Solicitor
@EmpLawyerJack
www.blackadders.co.uk

Taylor Review Deliveroo’d

The hotly anticipated Taylor Review (Good Work: The Taylor Review of Modern Working Practices) was published last week, having been commissioned by Theresa May last autumn. Matthew Taylor was tasked with chairing a review of employment law practices, the rights of workers and the obligations of employers. It was deemed necessary in light of rapidly changing business models, particularly amidst concerns about exploitation in the so called gig economy (think Uber, CitySprint, Deliveroo all involved in recently publicised employment tribunal cases).

Employment Status

The Review made a number of recommendations in relation to employment status. It recommends that the existing three-tier approach to employment status should remain. However, in respect of the middle category of “worker” (being somewhere between self-employed contractor and employee) these should be renamed as “dependent contractors”. Also, for these workers/dependent contractors, the current requirement for them to provide personal service should be removed and replaced with a greater emphasis on control (with legislation to outline what is meant by “control” in a modern working environment).

On the same note, the Review notes that the various factors to be taken into account when determining an individual’s employment status (control, personal service, mutuality of obligations and whether the person is carrying a business undertaking) should be enshrined in updated legislation. There is also provision for a claimant to bring an employment tribunal claim to determine their status without incurring tribunal fees. Where an employer disputes that a claimant has employee or worker status, the Review suggests the onus should be on the employer to dispute.

Further relevant points

Here are some of the other employment law related recommendations:-

  • Extend the requirement to issue a written statement of terms and conditions to workers/dependent contractors in addition to employees. Make this a day-one requirement (currently employers have two months to arrange this) and include a description of statutory rights within the statement.
  • Today, an employee wishing to claim to an employment tribunal for a failure to issue a statement of terms and conditions must piggy back this onto another valid claim (e.g. unfair dismissal). The Review suggests making this a standalone claim for compensation (presumably attracting a fee for the employee). An employee can claim for 2 or 4 weeks’ pay.
  • Continuity of employment can be broken by any gaps in employment of one week or more – this should be extended so that only breaks of one month or more would break continuity.
  • To prevent seasonal workers being shorthanded on holidays, increase the reference period for calculating holidays for those whose pay is variable from 12 weeks to one year.
  • Individuals should have the option to receive “rolled-up” holiday pay which is effectively an extra payment (12.07%) on their wages instead of paid time off. This practice is currently unlawful as it incentivises employees not to take time off by paying them more money instead of taking holidays.
  • Allow zero hours contractors to request guaranteed hours after 12 months (is this is to be backed up with a sanction for employers who don’t grant such requests? Will there be a list of permitted grounds for rejecting the request akin to the flexible working request scheme?). (All questions which we don’t yet know the answers to).
  • Agency workers can request a contract of employment with the hirer after 12 months of engagement with the same hirer.
  • Anyone who has worker/dependent contractor status would be treated as employed for the purposes of the tax regime.
  • Consideration to be given to implementing a higher rate of National Minimum Wage (“NMW”) for non-guaranteed hours in a contract. Businesses would in essence have to pay a higher wage for the flexibility from which they benefit when using zero hours contracts.
  • The NMW legislation should be varied so that gig economy (“platform workers”) are categorised as performing “output work” and will not be entitled to NMW for each hour that they are logged into the app at times where there is not any work available.
  • Amend SSP rules so that it becomes a basic employment right which accrues with length of service. Employers should not have to honour the full 6 month entitlement for short service employees.
  • Provide enforcement powers to HMRC in respect of holiday pay (as they have already for SSP/NMW).
  • The Government should simplify the process for enforcing payment of employment tribunal awards by vesting the power in itself to pursue unpaid awards.
  • Review the information and consultation obligations so that these can be triggered when requested by just 2% of the workforce, as opposed to the current 10% required.

Summary

These are interesting times in the field of employment rights and workplace relations.

Watch this space as to which of these recommendations the Government implements.

Many of the suggestions are probably good to go straight off the shelf. Employers would be prudent to review the composition of their workforce to assess the likely implications.

However much thinking will need to applied to some of the suggestions before they will be capable of implementation.

Good luck to the draftsman!

Jack Boyle
Associate Solicitor, Employment
@EmpLawyerJack
www.blackadders.co.uk

Blackadders’ award winning employment team present: Preparing 4 Change

Thursday 24th August
Dundee and Angus College, Arbroath
12.15pm registration for 12.30pm start (finish at 1.30pm)
Free seminar

4 hot topics
4 engaging presenters
4 key steps

Are you prepared for change?
Do you know what the future holds?
Are you aware of the potential risks?
Do you want to avoid a fine of up to €20,000,000?

For the answer to these questions (and more!) come along to this free seminar in Arbroath College on 24 August at 12.30.

#Preparing4Change

Gender Pay Gap
Following the introduction of the Gender Pay Gap Regulations in April 2017, Jack will give an update looking at the implications of these regulations. To whom do they apply? What needs to be reported? What is included in the calculation of pay? This is an issue which is currently topical even in Hollywood as actress Robin Wright was recently reported to have demanded the same pay as co-star Kevin Spacey in the popular “House of Cards”.

General Data Protection Regulations
With under a year to go until the new data protection regulations come into force in the UK, lots of questions are arising.  Does GDPR apply to me?  Is there any change in how I can use data?  Do my policies and procedures need to be updated? What happens if I do not comply with GDPR? Ruth will give a brief outline on the impact of these regulations and discuss the key steps employers should be taking. 

Subject Access Requests
What are they? What are the processes? What information about an individual employee can and cannot be withheld? Andrew will discuss the changing law surrounding subject access requests and why employers should be careful about what they say about their employees.

The Art of the Reference
When asked about an ex-employee, what can you say? More importantly, what can’t you say? Is there a duty to tell the truth? Simon will discuss the law relating to references and give some helpful guidelines for best practice for employers.

All you need to know on these key topics in under an hour.
If you go to one seminar this year, choose this one.
If you go two, come along twice.

If you are interested in attending, please RSVP to:
lesley.rorrison@blackadders.co.uk

 

 

GDPR: Changes are Coming – Are you ready?

Most people will have by now heard the four letters which will change the landscape for data protection in Europe next year – GDPR. The General Data Protection Regulations, or GDPR, will apply automatically within the UK when they come into force on 25 May 2018. While it seems a long time until compliance with GDPR is required, the changes introduced represent a substantial challenge for businesses within the UK and steps should be taken now to limit any issues (or fines) in the future. In the first of several updates on data protection and GDPR, I have set out the main changes for organisations to be aware of (with greater detail to follow on certain key areas in subsequent blogs).

Key Changes

Jurisdiction

GDPR will have extra-territorial application. This means it will apply to all EU organisations processing personal data (whether the processing takes place within the EU or not) and to all organisations processing data of people residing inside the EU (whether the organisation is within Europe or not).

Fines

The current maximum fine which the ICO can impose is £500,000 (although the fines imposed are normally well below this figure). Under GDPR, the fines are substantially increased. Where an organisation has committed a breach of record keeping, contracting or security clauses, the maximum fine will be greater of €10,000,000 or 2% of worldwide turnover. If an organisation has breached one of the basic principles or Data Subject rights, the fine can be up to €20,000,000 or 4% of worldwide turnover.

It is important to note, most ICO fines at present would be subject to the lower fine levels which may signify a change in what is now important in data protection rules.

Individuals also have a right to claim compensation for damages cause by infringement of data protection rules. Going forward, damages will include non-material damages for distress etc (rather than simply proven financial losses).

Data Processors

The current rules generally cover data controllers only (ie those responsible for determining the purposes and means of processing personal data). The GDPR creates specific obligations on data processors (those engaged by a data controller to carry out the processing of personal data). These include (i) maintain adequate documentation, (ii) put appropriate security processes in place, (iii) carry out data protection impact assessments and (iv) comply with rules on international data transfers. Failure to comply with the new obligations could result in fines and potential claims for damages from individuals.

Consent

Going forward, organisations can still rely on consent to process personal data but will need to ensure such consent is freely given, specific and informed. Practically, this means organisations should not rely on opt-out or auto filled consent boxes. Instead, organisations should ensure requests for consent are clear and distinguishable from other matters with options to consent to different types of processing. It is also necessary to highlight consent can be withdrawn at any time in a quick and easy way.

Businesses will need to maintain evidence showing consent has been obtained and have appropriate mechanisms to deal with withdrawal of consent. Given that consent is only one basis for lawful processing of data, organisations may consider if there is another basis for processing which is more appropriate.

Breach Notifications

Under GDPR, any data breach which is likely to risk the rights and freedoms of the individual should be notified to the ICO without undue delay and within 72 hours of first becoming aware of the breach. Where the breach is likely to result in high risk to the individuals affected, the individual should also be notified.

A breach is defined by the ICO as “a breach of security leading to the destruction, loss, alteration, unauthorised disclosure of or access to, personal data”.

Organisations will need to have an appropriate process in place for identifying any breaches and preventing any further breach of data, assessing the potential impact of any breach and thereafter notifying appropriate parties.

Data Subject Rights

A data subject is the individual whose personal data is held by an organisation. The rights that a data subject has under GDPR are broadly similar to the current rules, although some have been expanded. These rights include the right to access information held (or subject access rights), requirement on organisation to rectify incorrect data and the right to be forgotten.

The GDPR has removed the right for organisations to charge a data subject for access to their personal data. If a request is made to an organisation (letter, email and via social media are all acceptable methods), an organisation should provide all information within one month.

Data Portability

A new right created under the GDPR is data portability where an individual can request data held by an organisation is transferred to another organisation. The transfer can be via the individual or between the two organisations directly and must be provided in a commonly used format which is machine readable.

The introduction of this new right will enable individuals to transfer between service providers quickly and easily. It may require organisations to introduce appropriate procedures for transferring data quickly and securely.

Accountability & Privacy By Design

Simply complying with GDPR will not be sufficient for organisations – they should be able to show compliance by having appropriate policies, procedures and training in place.

Organisations should look to keep detailed records of processing operations, perform impact assessments for high risk processing, keep comprehensive records of any breaches and take data protection risks into account from the start of any process, rather than as an afterthought. The key concept is that personal data is only processed where necessary, for a specific purpose and stored for no longer than required.

Data Protection Officers

Going forward, certain organisations will need to appoint DPOs to oversee the protection of personal data. The DPO should report to the highest level of management and will advise on all relevant data protection laws, monitor compliance with GDPR, deal with data protection impact assessments and liaise with the ICO. A DPO is required for all public authorities and bodies and where an organisation has core activities requiring (i) regular and systematic monitoring of individuals on a large scale or (ii) processing on a large scale of special categories of data (sensitive personal data) and data relating to criminal convictions.

There is nothing preventing other organisations appointing a DPO but if appointed, a DPO will have to comply with all relevant obligations under GDPR.

It is important that organisations are aware of the new rules coming into force so they can consider what impact these may have on their own policies and procedures and what changes might be required before May 2018. For more information on data protection or to discuss your GDPR requirements in more detail, contact the Corporate Team at Blackadders.

Ruth Weir,  Senior Solicitor – Corporate  :  @CorpLawyerRuth www.blackadders.co.uk

National Minimum Wage – All Night Long

To some people, being paid to sleep might sound like a “dream” job.

However, for others, night-time obligations such as being on call are part and parcel of the job, even if they do get to sleep for part or all of the night. These types of working arrangement throw up some important considerations, not least in relation to pay and in particular National Minimum Wage (“NMW”).

NMW – when payable?

Employees are entitled to be paid NMW when they are working. How does this apply for those who do sleepovers or similar night working arrangements? Are such employees deemed to be working the whole night (even if sleeping), or just when they are awakened to respond to a “call”? Well, surprise surprise, the classic legal answer applies – it depends.

Recent case

The issue of NMW for sleepover/on call work has been the subject of much litigation.   Given the potential financial implications of the topic it is likely that there will be more litigation in the future. The Employment Appeal Tribunal recently heard three such cases reported in a conjoined judgment (Focus Care Agency Ltd) v Roberts.

Relevant factors

The EAT highlighted that every case will turn on its own facts and that a number of factors are relevant to when a person will be regarded as working for NMW purposes. Examples of relevant factors include:-

  • Whether the employer is subject to a contractual or regulatory requirement to have the employee present during a particular period.
  • The extent to which the employee’s activities are restricted by the requirement to be at the employer’s disposal (so can they nip out for fish and chips as they please?).
  • The degree of responsibility taken by the employee (e.g. compare the limited responsibility of being present on premises to call emergency services in the event of an emergency compared with a night sleeper in a care home who might face more personal responsibility in night duties).
  • The immediacy of the requirement to provide services if an emergency occurs (does the employee decide whether and how to intervene in an emergency or is the employee woken as and when required by someone else with immediate responsibility?).

One thing that is certain is that this topic is devoid of certainty. That seems to be the nature of the beast and where the tribunals are clear that a multifactorial approach is required, every case will turn on its own facts. The bullet points above were considered relevant factors in the Roberts case. Needless to say there will be other relevant factors.

If you are in any doubt about payment for sleepover shifts, take advice.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk