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 

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

Administrations: TUPE or not to pay?

The TUPE Regulations 2006 provide certain protections to employees whose employer transfers its business or undertaking to another party.

In an attempt to encourage the rescue of failing businesses, the regulations offer certain protections to the acquiring party where the transferor employer is subject to relevant insolvency proceedings.  This means insolvency proceedings which are commenced not with a view to liquidation of the transferor’s assets.  This includes administration.

Certain debts which the transferor employer owes to employees do not transfer to the new employer (transferee).  These are the redundancy payments, arrears of pay, notice pay and holiday pay which employees can recover from the National Insurance Fund i.e. up to the maximum of £400 per week.  Liability for amounts due to employees in excess of £400 per week (or greater than 13 weeks’ arrears of pay) will potentially pass to the acquiring party.  The regulations provide greater scope in relevant insolvency situations for the acquiring party to vary an employee’s terms and conditions of employment.

The regulations also provide that some of the protections offered to employees in ordinary circumstances do not apply where the transferor is subject to insolvency proceedings which have been instituted with a view to liquidation of the transferor’s assets.  Thus, if the transferor employer is in liquidation, its employees will not automatically transfer to the transferee and will not benefit from protection against dismissal in connection with the transfer (i.e. a dismissal in connection with the transfer will not be automatically unfair).

The Employment Appeal Tribunal recently issued its decision in OTG Limited v Barke, where it confirmed that a pre-pack administration can never qualify as “insolvency proceedings with a view to the liquidation of the transferor’s assets”.  A pre-pack administration is one where the deal to sell on the business is agreed before the transferor company enters administration, and takes effect immediately following the administrator’s appointment.  Accordingly, on the sale by the administrator, regulations 4 and 7 of TUPE will apply.

Essentially this means that employees who are employed by the company in administration immediately before the transfer will automatically become the employees of the acquiring party on the same terms and conditions of employment as before. They will also have the benefit of protection from dismissal in connection with the transfer.

Jack Boyle
Trainee Solicitor

Your Views on the Default Retirement Age

Now that the Government has confirmed that the default retirement age is being phased out, employers will need to decide whether to retain a specific retirement age (referred to as an employer justified retirement age) or not.

The article Managing without the Default Retirement Age has further information on the transitional arrangements, and includes a useful flowchart.

We would also be grateful if you could take a few moments to answer the following questions.   This will help us understand where employers are in relation to the abolition of default retirement age, and assist us in providing further advice on this issue.

[contact-form subject=”Default Retirement Age Questionnaire” to=”chris.terry@blackadders.co.uk”]
[contact-field label=”Name” type=”name” /]
[contact-field label=”Email” type=”email” /]
[contact-field label=”Does your business have an existing fixed retirement age?” type=”select” options=”Please select,Yes,No” /]
[contact-field label=”If yes, do you intend to retain this?” type=”select” options=”Please select,Yes,No” /]
[contact-field label=”Will it be compulsory (i.e. you will dismiss employees at that age)?” type=”select” options=”Please select,Yes,No” /]
[contact-field label=”Will it be voluntarily (i.e. employees may choose to leave at that age)?” type=”select” options=”Please select,Yes,No” /]
[contact-field label=”Do you intend to have no fixed retirement age?” type=”select” options=”Please select,Yes,No” /]
[contact-field label=”Please add any comments you would like to make about the abolition of the default retirement age” type=”textarea” /]
[/contact-form]

Thank you

End of the Default Retirement Age

Under the Employment Equality (Age) Regulations 2006 (and now the Equality Act 2010) employers have the right to impose retirement on employees who are aged 65 or over.   There are no adverse consequences for the employer, provided the correct procedure is followed.

This right is going to disappear from April 2011.   There will however be transitional arrangements so that provided due notice has been given, employers will be able to impose retirement up to 30 September 2011.

In effect this means that employers have a window of opportunity which will close at the end of March 2011 to impose retirement on employees aged 65 or over.   Thereafter, the dismissal of an employee aged 65 or over will have to be justified on one of the potentially fair grounds for dismissal (conduct, capability, redundancy or some other substantial reason).

While employers may be glad to retain the skills of employees who have passed their normal retirement age, it would be prudent to check payroll records to establish whether there are any employees who are already 65 or are approaching that age where the employer may want to take advantage of the present law to terminate employment by reason of retirement.

If you would like more information about this, please contact sandy.meiklejohn@blackadders.co.uk or simon.allison@blackadders.co.uk

Sandy Meiklejohn
Partner & Accredited Employment Law Specialist