HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. This is broadly median national salary. Employers can choose to fund the difference between this amount and an employee’s full salary, but there is no need to do so.

All UK businesses will be eligible to participate in the scheme. This includes not only limited companies but also LLPs, partnerships and charities.

Employers will need to:

Employees should not undertake any work for their employer while on furlough. The employee will still be eligible for additional forms of support, including Universal Credit.

We’ll update this page as further details about the scheme become available.

Photograph: “Computer on minimal desk” by Startup Stock Photos

The Trust pay Ms Brazel on a monthly basis according to the number of hours worked in the previous month, but she is paid her holiday pay at the end of every term. When calculating Ms Brazel’s holiday pay, the Trust followed Acas guidance on casual workers by using the rate of 12.07% per hour worked. Ms Brazel argued that was not the correct calculation under the Working Time Regulations and produced a lower figure. She disagreed that her holiday pay should be pro-rated simply because she did not work a full year.

Ms Brazel’s claim for unlawful deduction of wages failed in the Employment Tribunal, but her appeal to the Employment Appeal Tribunal was successful. The Trust appealed to the Court of Appeal.

The question for the Court of Appeal to decide was, by which method should Ms Brazel’s payments for annual leave be calculated?

The Court of Appeal coined a new term to describe employees in Ms Brazel’s situation – “part-year workers”. The Court felt that it was not apt to call such employees “term-time workers” as that denoted employees who are only employed during the term, while Ms Brazel was employed all the year round, albeit she only worked during term time.

Importantly, the Court decided that the position of a part-year worker such as Ms Brazel was not the same as a part-time worker, so there was no need to apply pro-rating as one would with the latter type of worker. This meant Ms Brazel’s holiday pay should be calculated by first determining a week’s pay – her average weekly remuneration during the previous 12 weeks – and then multiplying that figure by 5.6. This would make Ms Brazel’s holiday pay 17.5% of her actual earnings as opposed to the 12.07% rate used by the Trust.

The result is that a part-year worker will get higher holiday pay than a full-year worker, but the Court did not consider this to be “unprincipled or obviously unfair”:

“the actual days from which they will be relieved, and the quantum of their holiday pay, will reflect their actual working pattern.” Court of Appeal

This case will have implications for employers of part-year workers, such as teaching institutions, as these workers may complain about the size of their holiday pay or bring claims for unlawful deductions. There is some comfort for employers that such claims have a retrospective limit of two years.

Any employers who currently use the 12.07% rate to calculate holiday pay for permanent part-year workers would do well to review their employment contracts and assess their potential litigation exposure. The benefit of moving to calculate holiday pay on the basis [...]]]> http://lawandlabour.com/holiday-pay-for-part-year-workers-need-not-be-pro-rated/feed/ 0 http://lawandlabour.com/tupe-did-not-bar-employer-from-removing-outdated-travel-allowance/ http://lawandlabour.com/tupe-did-not-bar-employer-from-removing-outdated-travel-allowance/#comments Sat, 29 Sep 2018 12:18:31 +0000 http://lawandlabour.com/?p=2606 One of the trickiest aspects of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) for employers to deal with is how to handle terms and conditions of employment. An employee transfers into the business from another organisation with the terms and conditions relating to that previous employment intact. The new employer’s hands are tied. The law prevents the new employer from changing or removing those legacy terms and conditions unless certain circumstances apply.

The risk for any employer who dares to change terms and conditions following a TUPE transfer is that the change will be considered to be connected to the transfer, and therefore void. There is an exception if the employer can show that the contractual change was for a reason totally unconnected to the transfer. This what the employer in Tabberer v Mears Ltd sought to do.

The claimants in the case were electricians originally employed by Birmingham City Council, but whose employment had transferred under TUPE from one employer to another a number of times. Their employment transferred to Mears on 1 April 2008.

The electricians’ employment contract provided for the payment of an electricians travel time allowance (ETTA). The ETTA had been introduced in 1958 at a time when electricians employed by the Council travelled between several depots when performing their duties. However, by the time relevant to the claim, only one depot remained.

Mears viewed the ETTA as outmoded and unjustified, and decided not to pay it any longer. The affected electricians disputed this. Litigation then ensued under the title of Salt and others v Mears Ltd. The outcome of that litigation was to find that the claimants in Salt had a contractual entitlement to ETTA despite the courts finding the allowance was “outmoded” and “prehistoric with no resemblance to modern times”. Following the conclusion of the Salt litigation, Mears decided to remove the entitlement to the ETTA with effect from 1 September 2012.

The electricians responded by bringing claims for unauthorised deductions of wages arguing that the contractual variation made in 2012 was void because it was connected with a TUPE transfer. The Employment Tribunal disagreed with the electricians and dismissed their claims. The electricians appealed and the matter proceeded to the Employment Appeal Tribunal (EAT).

The key question for the EAT was, what was the reason for Mears’ decision to end the ETTA? What caused Mears to do what it did?

The EAT concluded that the reason, or principal reason, for Mears’ decision to end the ETTA was its belief that the entitlement was outdated. Crucial to this decision was the EAT’s finding that the Salt litigation was merely the backdrop to Mears’ decision to end the ETTA, not the reason for the decision. The EAT found that the Salt litigation merely confirmed that the ETTA was outmoded, but it did not create a connection between the decision to end the ETTA and the TUPE transfer.

“The operative reasoning – the belief that the payment was outdated and unjustified – did not arise purely on the occasion [...]]]> http://lawandlabour.com/tupe-did-not-bar-employer-from-removing-outdated-travel-allowance/feed/ 0 http://lawandlabour.com/5-ways-to-prepare-for-the-gdpr/ http://lawandlabour.com/5-ways-to-prepare-for-the-gdpr/#comments Sun, 11 Mar 2018 12:20:15 +0000 http://lawandlabour.com/?p=2577 One of the biggest sea changes to data protection law in 20 years will take effect on 25 May 2018 when the General Data Protection Regulations, or GDPR, begins to apply. This new European legislation will have a wide-ranging impact on the way in which businesses handle data of customers and clients. The GDPR will have particular significance for employers who will have to think carefully about how they handle all data relating to their employees. This article provides five key steps employers can take now to prepare for the introduction of the GDPR.

As a starting point, you should determine what personal data you hold on employees, where it came from and who you share it with. ‘Personal data’ covers an employee’s name, address, date of birth, salary and any other data from which the employee can be identified.

The GDPR introduces more stringent rules standard around consent which require consent to be freely given, specific, informed and unambiguous. In practice this means that consent must be capable of being verified, given by a positive opt-in, separate from other terms and conditions, capable of being easily withdrawn, and cannot be inferred from silence, pre-ticked boxes or inactivity.

Most employers currently use wide-ranging consents which are often buried away in employment contracts. Unfortunately this type of consent will no longer be sufficient. You will need to either obtain new, GDPR-compliant consent or consider alternatives to consent.

Most employers typically rely on consent as their go-to reason for processing an employee’s data. However, there are other lawful reasons that can be equally appropriate and more convenient to rely on.

Such alternative reasons include a requirement to perform an obligation under the employment contract, e.g. to pay the employee’s salary. Another pertinent reason is to comply with a legal obligation, such as submitting tax returns to HMRC. A useful reason for processing personal data is to comply with the employer’s legitimate interests. This catch-all categories can cover a wide range of activities.

In advance of the GDPR taking effect, you should review the various types of processing activities you carry out and identify the appropriate legal reason under the GDPR for carrying out each type of activity.

Under the GDPR, when you collect an employee’s personal data you will now need to give them certain information on how you intend to use their data. This is in keeping with the ‘transparency principle’ which is a key component of the GDPR. Privacy notices must be provided free of charge in a form that is concise, intelligible, easily accessible, and written in clear language.

With the GDPR comes a new obligation to report to the Information Commissioner’s Office within 72 hours any breach that could result in a risk to an individual’s rights and freedoms. Examples are breaches that could result in discrimination, damage to reputation, loss of confidentiality, financial loss, or any other significant economic or social [...]]]> http://lawandlabour.com/5-ways-to-prepare-for-the-gdpr/feed/ 0 http://lawandlabour.com/deliveroo-riders-are-not-workers/ http://lawandlabour.com/deliveroo-riders-are-not-workers/#comments Sun, 19 Nov 2017 16:54:08 +0000 http://lawandlabour.com/?p=2548 Deliveroo is a food-delivery service that utilises motorbike and bicycle riders to deliver takeaway food from restaurants to customers. In London, its riders are assigned to specific geographic zones.

In November 2016, the trade union the Independent Workers’ Union of Great Britain (IWGB) applied to the Central Arbitration Committee (CAC) for recognition for collective bargaining in connection with Deliveroo riders working in the Camden and Kentish Town (CKT) area. Deliveroo opposed the application by arguing that its riders were not ‘workers’ as defined within trade union legislation.

The test for recognition required the CAC to determine whether 10% of workers in the proposed bargaining unit were in favour of union recognition. The starting point for the CAC was whether any rider in the CKT area could be said to be a ‘worker’ as defined by section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A).

According to section 296 TULR(C)A, a ‘worker’ is a person who works under either:

Part (b) of the definition was the only part of the legislation that could possibly be applied to the relationship between Deliveroo and its riders. The CAC therefore had to consider whether each rider was obliged to work personally for Deliveroo or whether the rider could provide a substitute to carry out work in his stead.

The CAC noted that Deliveroo’s contract with its riders contained a substitution clause permitting the rider to provide a substitute rider if he did not wish to carry out the delivery himself. Such clauses are common in gig economy contracts, but the right is usually not exercised, leading to a suspicion that the clause is merely a sham to give the illusion of self-employment.

However, in Deliveroo’s case there was evidence that the substitution clause was not merely for show, as the company had proof that one rider had asked a friend to make a delivery on his behalf for which he had pocketed a share of the delivery fee. This evidence was sufficient for the CAC to decide that the right of substitution was “unfettered and genuine”.

The CAC maintained this position despite what it referred to as the ‘substitution conundrum’. To the CAC it appeared to make little business sense that Deliveroo would spend time and energy on hiring, vetting and training its riders only to permit an unknown person who had not been subjected to such vigorous preparation to carry out deliveries for the business. Faced with this anomaly, the CAC noted that its role was not to assess whether a particular business model made good sense or not. It was solely concerned with whether the substitution right was genuine and the CAC believed that it was.

“By allowing an almost unfettered right of substitution, Deliveroo loses visibility, and therefore assurance over who is delivering services in its name, thereby creating a reputational risk, and potentially a regulatory risk, but that is a matter for them. The Riders are not workers within the statutory definition of either [...]]]> http://lawandlabour.com/deliveroo-riders-are-not-workers/feed/ 0