Spending too long in the Casino? Clarification on weekly working hours & rest periods

The Directive
The European Working Time Directive (“the Directive”) provides for certain rules on working time and rest breaks.  One of those rules is the entitlement to 24 hours rest away from work in any 7 day period.  The European Court of Justice (“ECJ”) has recently provided some clarification on how this rule works in the case of Marques da Rosa v Varzim Sol – Turismo, Jogo e Animacao SA.

The case
Da Rosa worked in a Portuguese Casino.  The working rules provided for two days off per week.  However on occasion the rota required workers to work for 7 days on the spin.  When his employment ended, he argued that this was unlawful and in breach of the Directive.  The issue to be determined was whether the worker had an automatic right to a day off work after working 6 consecutive days, or whether the employer was free to choose when the day off would be (i.e. at any time during the 7 day period).

The decision
The ECJ found in favour of the employer.  To comply with the Directive, all that needs to be done is to provide one day off work per 7 day period.  This means that a worker could have a day off at the start of one seven day period, then work 12 consecutive days (taking him or her into a second 7 day period), with a further day off at the end of the second 7 day period.

And in the UK?
In the UK, the Working Time Regulations 1998 provide for certain minimum rest periods for workers.  These Regulations implement the Directive.  The UK rights include:-

  • Rest breaks at work – 20 minutes rest break for any working time of 6 hours or more (note that the break cannot be at the start or end of a shift);
  • Daily rest – 11 consecutive hours of rest in any 24 hour period during which work is performed; and
  • Weekly rest –24 consecutive hours of rest per week, though this can be averaged over 2 weeks.
  • Also watch out for additional rights for night workers and young workers.

Summary
Weekly rest in the UK can either be achieved by allowing 24 hours of rest per week, or 48 hours of rest per fortnight, or two separate periods of 24 hours over a 14 day period.

For those lucky enough to enjoy weekends off work, this case will be of no relevance.

However, for those working business which operate around the clock, it is worth noting the decision.  This provides a degree of flexibility for employers when arranging rotas etc.

If you have any questions about rest breaks and working time, get in touch with our Employment Team.

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

Taxi for Uber

Workers for Uber have been placed in the driving seat following today’s Employment Appeal Tribunal decision.  This upheld a previous tribunal ruling that Uber drivers were “workers” within the meaning of the Employment Rights Act 1996.

The ‘Gig Economy’
The Uber business model is perhaps the best known in what is referred to as the “gig economy” where people work via apps, for companies like Uber and Deliveroo, to provide a service to clients.  These companies had argued that the people providing the service were independent, essentially self-employed, and not an employee.  This means they would not benefit from the rights and protections that are afforded to “workers” or “employees.”

Tribunal Decision
The tribunal decision had stated that drivers were “workers” when they were in the territory in which they were authorised to drive, had the Uber app turned on and were ready and willing to accept fares.  The tribunal also said that Uber exerted a level of control over workers.  This included drivers being locked out of the app if they did not accept or complete a certain number of fares, which the tribunal said was akin to taking disciplinary action against the drivers.  This, they said, all indicated a worker relationship with the company.

Workers’ Rights
This ruling means the drivers will benefit from workers rights such as, receiving the national minimum wage, paid annual leave, a maximum 48 hour week and rest breaks.  The classification as a ‘worker’ rather than ‘employee’ means they will not have the full entitlement of rights that employees benefit from.  These include, the ability to claim unfair dismissal, the right to a statutory redundancy payment and the protection of TUPE legislation if Uber were to sell its business.

A Dead End for Uber?
While this ruling is a shot across the front bumper of Uber, it may not be the end of the road for them.  It is likely they will appeal this decision to the Supreme Court, who are set to hear another ‘gig economy’ case involving Pimlico Plumbers.

If you are unsure about the status of workers, or the rights they are entitled to, then contact the Blackadders’ employment team.

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

Season 2.5: How to do Social Media? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 5: Simon & Richard respond to a tweet by Elevator asking ‘do you encourage your employees to use social media?’. They discuss a cautionary case and Richards top tips are definitely worth noting down. Simon’s hashtags (#’s) are a bit dubious… but they will definitely give you a few laughs!!

 

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 2.4: 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

#ELIYP

Season 2.4: How to deal with copyright & trademarks? | Employment Lawyer in Your Pocket

blackadders logoSeason 2, Episode 4: Simon and Jack are joined by Blackadders, Senior Solicitor in Corporate & Commercial law, Ruth Weir.  They respond to an email by the BIG Partnership ‘Who owns intellectual property created during employment?’. They cover Copyright, Trademarks and Rights to IP. In addition to this Ruth gives her Top Tips. Which “poem” did you like best and do you think Ruth will ever return to ELiYP?

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 2.3: 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

#ELIYP

Season 2.3: How to deal with stubble & tattoos? | Employment Lawyers in Your Pocket

blackadders logoSeason 2, Episode 3: Simon & Jack answer a tweet from Insights  ‘Can employers insist on male employees being clean shaven? What about tattoos?’. They don’t hold back addressing both issues as well as giving examples of previous cases of discrimination. In addition to this there is a few dodgy impersonations to keep you amused! Can you guess the Harry Potter character that Jack couldn’t?

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 episodes here:
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

#ELIYP

Step 1: Where Do I Start When Managing Employees? | Employment Lawyer in Your Pocket

Employment Lawyer in Your Pocket is a podcast delivered by Blackadders award winning Employment Law team which will provide practical employment law advice to HR managers and business owners. In their first series, the team will discuss the steps which a manager must take when looking to conduct a fair dismissal.

Episode 1: Simon and Andrew discuss the first steps a manager or employer should take before taking formal disciplinary action.  Why does it matter for a business to get the correct procedure?  Is it a performance issue?  Is it improper behaviour?  It is gross misconduct?  Is it conduct or is it capability?

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

Should I Accept a Facebook Friend Request From My Boss?

that-awkward-moment-when-your-boss-sends-you-a-friend-request-on-facebook-quote-1

Have you ever experienced that awkward moment when you get a friends request from a relative stranger?  Worse still, have you ever experienced that awkward moment when you get a friends request from your boss?  It’s always going to be a dilemma.  Do you or don’t you?  Will you allow your boss to know the secrets which are contained on your timeline?  Or will you reject it and run the risk of that embarrassing conversation when your boss mentions his or her pending friends request.  And what are your concerns anyway?

Can my boss discipline me for posting a status update during working hours?

Potentially, yes.  However the answer to this question depends entirely on the content and precise wording of your employment contract or staff handbook.  Does your employer permit “reasonable use” of social media during working hours?  Or does your employer expressly prohibit use of social media during working hours?  Either way, if you are breaching the terms of your social media policy and your boss is a Facebook friend, it is entirely reasonable for the boss to take action against you in this respect.

Can my boss use information from my Facebook profile to discipline me? 

Again, potentially yes.  Over the past few years, employment tribunals have permitted employers to use information which has been gleaned from social media to dismiss employees.  In one recent case, an employee was dismissed for posting “OMG I hate my job! My boss is always making me do s*** stuff just to p*** me off”, forgetting that she was already Facebook friends with him.  He replied to the post stating, “that ‘s*** stuff’ is your job.  You seem to have forgotten that you have two weeks’ left on your six month trial period.  Don’t bother coming in tomorrow.  I’ll pop your P45 in the post.”  So again, using information from Facebook is entirely possible.

Is it ever unfair for my boss to rely on this type of evidence at an employment tribunal?

No, not really.  If you are friends with your boss on Facebook, any of your status updates will be fair game.  Recent tribunal decisions have held that even covert recordings which are “very distasteful” and “discreditable” will not alone render them inadmissible.  More and more frequently employees are recording formal meetings without the employer’s consent and then seeking to rely on this covert recording at any future tribunal hearing.  So, again it would be entirely reasonable for your boss to rely on your social media content at a future employment tribunal.

So should I accept a Facebook friends request from my boss?

One of the first things you learn when you begin your professional career is that you’re going to be spending a lot of time with your colleagues.  And if you’re lucky, some of these colleagues could become your friends.  Bonding with your trusted colleagues is a no-brainer however what about a friendship with your boss?  Having a positive, constructive and open relationship with your boss is always a good thing and, if you can cross that line into friendship (even if it is only Facebook friendship), then you are one of the lucky few!

P.S. And if you don’t want your boss to see that photo of you, tagged on Saturday night, sitting in a shopping trolley on Benvie Road with a can of lager in one hand and a kebab in another, you probably shouldn’t be posting it anyway.

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

Drive it on home – Drive time and working time

Q: What is a peripatetic worker?  A: A worker who spends short periods of time at various different places who travels regularly to perform their work.  Such an arrangement is likely then to involve a lot of driving.  Q: How, then, should time spent driving between different assignments be treated for the purposes of working time?

A: The Advocate General has offered some guidance following an opinion in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL.  This case concerned Spanish workers who were employed to install and maintain security equipment at various locations across the country.  The workers were assigned to their employer’s head office in Madrid.  However, each worker had a specific area to cover.  They were provided with company vehicles and were required to travel from their homes to the various premises to carry out the work.  The employer’s policy provided that the first and last journeys of the working day (i.e. from the worker’s home to the first job and from the last job back home) were not part of working time.  In other words, they were only deemed to be working from the minute they arrived at the first job up until the minute they left the last job of the day.

The workers alleged that this practice infringed the EU Working Time Directive.  Following a referral from the Spanish court, the Advocate General has opined that for such peripatetic workers, who do not have a fixed or habitual place of work, time spent travelling from their home to the first assignment and then from the last assignment to home, should be regarded as working time.

There is no middle ground between working time and rest time.  The Advocate General was satisfied that the three conditions for working time were satisfied: (1) being at the workplace – met because the very nature of peripatetic work, involving daily travelling, renders travelling an integral part of the job; (2) being at the disposal of the employer – met because the travel  was to customer sites for the benefit of the employer, the routes being set by the employer who could change instructions at any time; and (3) that the employees be engaged in work duties – met because travelling was integral to the performance of the activity.

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

The Equality Act for Service Providers – Certainly not a Piece of Cake

Facts of case

Last month saw a much publicised case in Northern Ireland involving a bakery and a customer requesting a message supporting gay marriage to be displayed on a cake. The owners of the bakery refused to make the cake on the basis that the message went against their strong religious beliefs. Belfast County Court held that this amounted to discrimination against the customer.

The law

In Scotland, the Equality Act 2010 ensures that people are treated equally regardless of whether they hold any of the “protected characteristics”. Similarly to discrimination in the workplace, when providing a service there are eight protected characteristics which a customer may possess, namely the following:  disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation and age. Interestingly marriage and civil partnership is a protected characteristic when a worker is in employment, but not when a service is being provided to a member of the public.

When you are offering a service to the public you must ensure that you are not discriminating against any of these protected groups. It does not matter if this service is being paid for or not. The term ‘service’ has been given a wide interpretation by the courts. It includes services offered physically by way of a shop, services offered online or services offered by telephone etc.

Direct discrimination

There are a number of different types of discrimination, some of which you may not even realise are occurring. The most obvious type is direct discrimination. This occurs when someone is treated less favourably than someone else because of a protected characteristic. An example of this is the above ‘cake row’. The customer was found to have been treated less favourably than another customer because of his sexual orientation in addition to his political beliefs. Where direct discrimination is found to have occurred there is no justification defence available to the service provider. If you are offering any such services you must ensure that you treat everyone equally.

Indirect discrimination

Indirect discrimination can occur without a service provider deliberately intending to break the law. This can happen when a general rule is applied by the provider which particularly disadvantages a person with a protected characteristic. Such examples can include taking orders for cakes by telephone only. This could indirectly discriminate against someone who is deaf and cannot use a telephone. Deafness would be included as a disability and is therefore protected under legislation.  However unlike direct discrimination, a service provider can justify indirect discrimination if the reasoning behind their policy is deemed to be fair. This applies if it is a proportionate way of achieving a legitimate aim. If you can demonstrate why you follow the particular policy, and it is deemed to be a fair reason for your company, then the policy will not amount to a finding of discrimination.

Warning

Discrimination in the workplace and for service providers is certainly not a piece of cake and can provide a rocky road for many companies. There are plenty of other situations when discrimination can occur and, unless you are a gluten for punishment, the yeast you can do is consider how you provide your services and ensure any half-baked practices are not discriminatory. Rather than turning your company upside down, if you are ever in any doubt about what amounts to discrimination and knead a second opinion, seek advice!  It would be wrong to assume that the Equality Act is much a dough about muffin (and sorry for the cheese(cake))

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

How Are You Voting Today? Zayn or Louis?

Louis Zayn
#TeamLouis or #TeamZayn?

Whilst most eyes will be on the General Election today, some may also be on the twitter spat which has broken out between One Direction band member, Louis Tomlinson, and his former band mate, Zayn Malik.  A very public war of online words has commenced on twitter between the two ex-band mates.  Opinion is very clearly divided as to which musician is in the wrong.

Social media feuds between employees

As an employment lawyer, I am being asked more and more frequently to give advice to employers as to when (and how) to intervene when such social media issues occur between employees.  Employment lawyers are now having to grapple with issues such as “cyber bullying” and “online social exclusion” on a sometimes weekly basis.

Is the conduct within the course of employment? 

Before making a decision about whether to intervene in such online spats between employees, an employer should consider whether or not the conduct falls “within the course of employment”.  Historically employment tribunals have interpreted this definition very widely and frequently in favour of the employee.  However tribunals are also keen to emphasise that each case will be fact specific.  Generally an employer will only be liable for acts of its employees which are authorised by it.  Therefore if an employer makes clear to employees what use of social media is prohibited, this would be a potentially good defence to any claim on the basis that such conduct took place between employees outwith the course of employment.  On this basis, employers should have a clear social media policy in place and provide regular training to its employees as to unacceptable use of such social media.

What steps should be taken by the employer if social media misconduct falls within the course of employment? 

  • Where possible, employers should encourage employees to make use of the formal grievance procedure. This will allow the employer to create and maintain a paper trail as to the extent of the alleged misconduct.  This should also allow the employer to note the effect of the misconduct on the disgruntled employee.  This information might also prove useful at any future tribunal hearing.
  • Employers should ensure that any bullying and disciplinary policies extend to include the use of social media. This might include the use of offensive or intimidating language directed at another employee on social media.
  • Lastly employers should also take action against employees who commit acts of misconduct on social media. In order to do so, the employer will require to rely upon a robust social media policy.

Ultimately whether you are #TeamLouis or #TeamZayn, it seems clear that this recent episode of #KeyboardCourage looks set to prolong the #ZaynPain for another few weeks …

Simon Allison
Partner & Head of Employment Law
@EmpLawyerSimon
www.blackadders.co.uk