I’m Dreaming of a White Christmas

I would imagine that the majority of work place Christmas parties will involve a drop or 2 of alcohol, and the shenanigans that comes with this.  Of course there will be some individuals who go too far and resort to dabbling in drugs in order to maximise their enjoyment of the party season.

It is fine for employees to dream of a white Christmas, provided that the white stuff which is dreamed of is snow.  However, if it is not, then this could spell trouble.  Cocaine is one such drug that is controlled under the Misuse of Drugs Act 1971.

So, what does this have to do with employment law, I hear you ask.  It is an offence for an employer to knowingly permit, or even to ignore, the use, production or supply of any controlled drugs taking place on their premises.  If you discover an employee taking drugs at an office Christmas party, it is important that you take the appropriate action.

However, a word of caution!   Where an employee is caught bang to rights taking an illegal drug it does not mean that the usual rules for disciplinary procedures can be abandoned in place of an on-the-spot dismissal.  That would likely result in a successful claim of unfair dismissal.

Employers should treat offences of this nature in the same manner as any other instances of misconduct.   The 3 stage process of suspension, investigation and disciplinary hearing should still be followed to avoid being on the wrong end of a possible tribunal claim.

What about an employee who is convicted of drug abuse outside of the workplace?  They can surely be sacked right?  Potentially yes.  However, employers must still follow the necessary procedures and take into account relevant factors such as the nature of the job and whether the conviction impacts on the employer’s reputation.

A tip from the top: Keep your snow for the snowmen this year.

For more information on misconduct please contact the Employment Law team at Blackadders.

Richard Wilson
Trainee Solicitor, Employment
@EmpLawyerRich   
www.blackadders.co.uk 

“You mean more to me than anything in the world and I need you to believe me…”

It was announced yesterday that Prince Harry has become engaged to US actress and star of TV show Suits (Rachel Zane), Meghan Markle.

With the wedding predicted to take place in May 2018, there is much speculation about whether Prince Harry and Meghan Markle would or should enter into a pre-nuptial agreement prior to their marriage.

Currently around 50% of marriages end in divorce. 

What is a pre-nuptial agreement?
A pre-nuptial agreement is a contract. It can be used to regulate the division of assets upon divorce or death.

Are pre-nuptial agreements enforceable in Scotland?
Although pre-nuptial agreements are untested in the Scottish courts, Scotland has long recognised that people should be able to enter into contracts as they wish. Pre-nuptial agreements are therefore valid in Scotland and the courts may take one into account provided that it was fair and reasonable at the time it was entered in to. 

Why have a pre-nuptial agreement?
The most common desire is to protect assets owned prior to a marriage; or assets that are inherited or gifted to one party so that they remain the property of that person and do not go into the matrimonial pot for division. The division of such assets are often the subject of contentious and bitter arguments in a divorce, with much time and money being spent arguing about how these assets should be divided fairly. A pre-nuptial agreement can exclude such assets from the equation. They provide a degree of certainty. Without a pre-nuptial agreement, the statutory provisions apply leaving scope for parties and lawyers to argue about it.

Should they or shouldn’t they?
Pre-nuptial agreements often criticised as being unromantic or as being indicative that one does not love or trust their partner enough. In my opinion, pre-nuptial agreements encourage a couple to be honest and upfront with one another about their financial situation and their expectations for the marriage in a responsible and realistic way.

“You mean more to me than anything in the world and I need you to believe me…” Rachel Zane, Suits. 

Not just where marriage is in contemplation…
With cohabiting couples now having limited rights to make a financial claim when the cohabitation comes to an end, a pre-cohabitation agreement can be entered into in the same way as a pre-nuptial agreement. For more information on pre-nuptial agreements please contact Blackadders Family Law team.

Joanne Murray, Associate Solicitor
Family Law
@FamilyLawJoanne
www.blackadders.co.uk

 

 

Season 2.7: How to record a disciplinary hearing? |Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 7: Simon & Richard answer a tweet from Big Man Talking ‘should you record a formal meeting with a manager on your mobile phone?’. They cover legislation, real cases and Richard gives us his top 3 tips.  As well as this Richard does an impression of J. Boyle…(if you can work out who that is?) and tries to get his twitter followers up. Also why does Simon have an Australian Siri?

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 latest episodes here:
Season 2.6: How to manage your apprentices?
Season 2.5: How to do social media?
Season 2.4: How to deal with copyright & trademarks?
Season 2.3: How to deal with stubble and tattoos?
Season 2.2: How to give a good reference?
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 
@BlackaddersLLP

#ELIYP

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

 

 

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

TUPE – Employee Liability Information

  • X-mas bonuses were wrongly described as non-contractual

  • No breach of the Reg. 11 obligation

Regulation 12 of the TUPE Regulations 2006 gives rise to a rare situation where Employer A can sue Employer B in the employment tribunal.

Employee Liability Information (“ELI”) – the law

Where a TUPE transfer takes place (be that a business transfer or a service provision change – change of contractor), the outgoing employer is obliged to provide the incoming employer with certain pieces of information about the transferring employees. This information must be supplied at least 28 days prior to the transfer and is known as employee liability information. The required information includes “those particulars of employment that an employer is obliged to give to an employee pursuant to section 1 of the 1996 Act.” These duties are imposed by TUPE Regulation 11.

Consequences of non-compliance relating to ELI

TUPE Regulation 12 allows the incoming employer in a TUPE situation to raise a claim against the outgoing employer for any failure by the outgoing employer to comply with Regulation 11. The remedy for such an action can include compensation of up to £500 per employee in respect of whom the failure applies.

The recent case

Reported cases of this nature are rare. However the recent decision in Born London Limited v Spire Production Services Limited is one such case and one which throws up an “interesting” result/warning for those businesses inheriting employees under TUPE. Very briefly, the outgoing employer (Spire) told the incoming employer (Born) that Christmas bonuses were non-contractual. After the transfer the employees alleged that the bonuses were contractual. Born raised proceedings alleging that this inaccurate disclosure by Spire was in breach of Regulation 11. They were unsuccessful on the basis that while Regulation 11 does require disclosure of the statement of particulars of employment, within that statement of particulars can be contractual and non-contractual matters. Accordingly, it did not follow that referring to something as non-contractual which was in fact contractual amounted to a breach. Essentially, the branding of something as “non-contractual” is additional information beyond the scope of what is required by Regulation 11.

What can we take from this case?

Firstly, the case did not produce a satisfactory result in the sense that the outgoing employer provided, on the face of it, untrue information to the incoming employer but the incoming employer was not protected by Regulation 11. Secondly, and perhaps more importantly, the case emphasises the importance of carrying out thorough due diligence when inheriting employees under TUPE. If there is contractual documentation in place regarding the transfer, the incoming employer should insist on appropriate warranties/indemnities to protect against such anomalies.

If you are acquiring employees from another business, take advice.

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

Blackadders Employment Team Scoops Prestigious “Excellence in Client Care” accolade: GoT Legal Award, GoT Excellent Clients, GoT Game of Thrones trip to plan

Last night, the Scott & Company Legal Awards 2017 took place at the Assembly Rooms, Edinburgh. Over 70 entries made the shortlist in a year which attracted a consistently high number of firms. Blackadders were one of 40 firms named as finalists and were ultimately crowned winners of the Excellence in Client Care Award 2017.

In support of this award, clients had stated that the Blackadders’ employment team are “the best in their field”“highly efficient and very approachable” as well as “cost effective and extremely knowledgeable”.

“Nothing is ever too much trouble for the team and they always go above and beyond what is expected of them. They provide as close to a 24/7 service as I have encountered and we would not consider using anyone else.”

“The team are refreshingly different from their competitors and are forward-thinking, approachable and enthusiastic. The team’s blogs and tweets are always relevant, relatable and entertaining.”

The judging panel stated that the judging process had been very difficult, given the high calibre of entries in all categories. However, ultimately, the panel felt that the Blackadders’ employment team were the best in their category. In addition to dealing with a number of “high value cases” over the past twelve months and giving an excellent client care service, the judges stated that Blackadders’ employment team offered “a fresh and innovative approach to employment law which made them stand out as leaders in their field.

Simon Allison, Head of the Employment Team, stated that he was surprised and extremely honoured to have won the award, given the high standard of the fellow finalists. He dedicated the award to his team on the basis that they had worked exceptionally well together on various projects over the past year and were, in his view, thoroughly deserving of the award.

In addition to this award, Andrew Wallace won the Highly Commended Award for Rising Star of the Year 2017.

Last year, Simon took the team to Dublin to celebrate their success at the Legal Awards. 2016. Prior to the 2017 awards ceremony, Simon had taken a bet with his team that, if they won, he would take them on the Game of Thrones tour in Belfast but that, if they lost, they would be doing the Eight Peaks Challenge with him. Last night’s result spells an expensive month for Simon (who was last seen googling the cheapest means of transport to get to Westeros).

Well done Simon, Jack and Andrew – Excellence in Client Care Award 2017 and Rising Star of the Year Award 2017!

The Replacement: The Cause, The Claws & The Flaws

Did any of you catch the BBC’s latest drama, The Replacement?

It started off as the same old story. Ellen becomes pregnant. Ellen identifies her maternity leave cover post, Paula. Paula commences her duties prior to Ellen finishing up and seems like the perfect hire – enthusiastic, personable, super-competent. In fact, Paula takes to her myriad of duties much like Superwoman.    And that is when Ellen begins to worry that Paula has another agenda.

Ellen begins to suspect that Paula is after her clients, her job, her colleagues, her friends and even her baby. Before long, Paula has sharpened her claws. And before the first episode had even finished, every beat in the female psycho-thriller playbook had been pulled out of the bag.

Without giving too much away, there are accusations of baby-stealing, pill-popping and being “pushed” down a set of stairs. And the expression “hot-wiring airbags” will never seem the same again.   However there are some major flaws with The Replacement.

Without being a stereotypical, know-it-all employment lawyer, my three key flaws all relate to Ellen’s employer and, more specifically, her creepy boss, David Warnock:

1. An employer is not permitted to allow an employee to work during the two weeks’ (extended to four weeks for some factory/workshop workers) commencing the day on which child birth occurs. An employer who does so is guilty of an offence. How long was Ellen actually on maternity leave for? When Ellen had the fateful first meeting back with the equally creepy client, Vernon, he makes the point that Ellen (who had already returned to work, albeit to hack into Paula’s computer and set up a fictional client with the elusive Georgia) had barely been back for four weeks. Whether or not Ellen was actually permitted to use her statutory two weeks’ leave is probably insignificant given the fact that she was clearly back to work much sooner than was reasonable in the circumstances. Surely an employer with half an ounce of common sense could tell that she came back far too soon.

2. Similarly shortly after the birth, Ellen visits the office to meet with Creepy David. “I don’t want you to put yourself under any pressure to return to work because of Kay”, says David. “No”, assures Ellen, “I want to be here.” Ellen proceeds back to work, albeit again that “work” involves creeping on Paula’s daughter’s Facebook account and spying on her boss and maternity leave cover, Paula. An employee is entitled to work for up to 10 KIT (“keeping in touch”) days during maternity leave, without bringing their maternity leave to an end. Were these KIT days used? Probably not.

3. Lastly, when Ellen returned to work, she was sidelined from her old project, the library. Ellen asked about the library project and was told by her boss, “Paula’s handling it. Vernon has got used to her. That’s all.” This was the same project about which there had been a debate – skylight or no skylight? Do you remember skylight-gate? When Paula first opposed Ellen’s idea about the skylight, she later reinstated the idea (only to discover her colleague’s dead body being shoved through the skylight). The law is clear that an employee who returns to work within 26 weeks of maternity leave is entitled to return to exactly the same job, on the same terms and conditions. Creepy David had obviously never heard of that and Ellen’s request to return to the library project went out of the window (or should that be skylight?).

So basically I can forgive Ellen for turning into MacGuyver and hot-wiring these airbags as I presume that architects must have a basic engineering knowledge and Ellen must have completed her motor electronics course in an earlier episode….

And I can even forgive Paula for pushing her colleague out of the window – let’s face it, line managers can be difficult. After a dramatic showdown involving a kidnapped baby, sleeping pills and smashed window screens, she confessed all and was led away in handcuffs. She got what she deserved.

However it is Creepy David who cannot be forgiven. So he likes group hugs with his female colleagues. And he makes inappropriate remarks about his female colleagues’ appearance. But as far as employment law goes, the flaws are unacceptable.

I am away to watch something more realistic now…. like The X-Files.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

“Someone’s sitting there, pal…” Reasonable adjustments in the context of disabled bus users

Employment lawyers will be familiar with the concept of reasonable adjustments insofar as they relate to the employment relationship.

The law behind the case

FirstGroup plc v Paulley is a case concerning reasonable adjustments in the context of public service provision. Under the Equality Act 2010, a provider of services to the public is, in certain circumstances, under a duty to make reasonable adjustments for any service users who are disabled.   This duty arises where a provision, criterion or practice of the provider places disabled persons at a substantial disadvantage in relation to a relevant matter when compared with non-disabled service users.

The facts of the case

In this case, Mr Paulley was disabled and attempted to get on a bus operated by FirstGroup (“FG”). The designated disabled seat was already occupied by a passenger with a sleeping child in a pram. The driver asked the passenger to move but she refused, despite clear signage saying “Please give up this space for a wheelchair user”. The signage did not make any threats or reference to enforcement on the basis that FG preferred a more customer friendly approach. The operator’s policy was that people could be asked to move from disabled spaces but if they refused the disabled person would not be permitted to board the bus. That is what happened here and Mr P had to wait 20 minutes for the next bus. The driver was not expected to wrestle the lady and pram out of the seat.

The outcome of the case

Mr P raised a court claim of discrimination alleging failure to make reasonable adjustments. He was initially successful and won £5.5k in damages. FG appealed successfully on the basis that it was not reasonable to expect drivers to force non-disabled users out of a seat. It also acknowledged that a non-disabled person might have reasonable grounds for not vacating the space and drivers could not be expected to assess such reasonableness.

The case went all the way to the Supreme Court which found that while it would not be reasonable to have an absolute policy requiring drivers to force non-disabled users out of disabled seats, FG had not done enough by their policy of simply asking passengers to move from the disabled seat without anything further. The Court held that the policy should have required the driver to use “best endeavours” to encourage the reluctant passenger to move. For example, the driver could rephrase the original polite request as a requirement or even stop the bus to pressure the passenger into moving. Given the tight schedules on which buses operate, one can see the potential for such an approach leading to passenger dissatisfaction. However such peer pressure could well be sufficient to guilt the reluctant person into moving.

As one of the Lords put it, there was no ideal solution in this case, merely a number of unsatisfactory ones. Those with faith in the goodness of humanity would hope that cases of this nature will be few and far between, though perhaps that is wishful thinking.

What can we learn from this case?

The case does highlight a useful example of the application of the Equality Act beyond the employment law sphere in which it is most commonly quoted.

Please do not treat this as an invitation to occupy a disabled seat on the bus and see what the driver does about it!

Otherwise the wheels on the bus may not go round and round…

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