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Employment Law Bulletin - January 2020

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A New Year 

Happy New Year to you all! We hope that you have had a lovely holiday and that 2020 is a prosperous and successful year for you.

You may want to kick off the year by booking on our complementary programme of events to support your development and help keep you up to date. 

Our programme can be found here and you’ll see that there are events for ‘Rising Stars’, more in depth ‘Masterclasses’ and legal updates to suit different needs.  

Our next event is on Thursday 30 January and is on the topical issue of the changes to employment status and IR35. Given the challenges and impact it’s likely to have for industry, there are only a few spaces left so do get in touch if you’d like to join us.

We look forward to supporting you in 2020 and welcoming you at our events soon.

Legislative changes on the horizon 

2020 proves to be another interesting year for employment law, with several changes coming in April. These changes will be:

In addition to providing this statement earlier there are additional items which must be included on the statement:

Agency workers are entitled to receive the same rate of pay and terms and conditions of employment as permanent employees, once they have worked for an organisation for at least 12 weeks. Currently this requirement can be opted out of if agency workers are employed on a continuous contract and paid during any gaps between placements. This is known as the Swedish derogation. 

This will no longer be lawful. In addition, an agency worker will be entitled to be provided with a list of information about a placement, to help them to decide whether to accept it. This information is:

As ever, if you have any queries about any of these changes that are coming, please do not hesitate to contact the Clarion Team for further advice.

Surveillance of employees 

You are allowed to check what your employees are doing whilst they are working, but this must not be unduly intrusive. In the case of Lopez Ribalda and others v Spain [2019] a supermarket installed covert CCTV for a period of two weeks, covering a limited part of the supermarket. They did this because there had been a number of thefts and they wanted to identify which staff were involved. The employees argued that this was a breach of their right to privacy.

The European Court of Human Rights has concluded that this was not a breach of the right to privacy because it was for a short period of time, and the employees could only have a limited expectation of the privacy they could have in a supermarket. 

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Employee accused of a crime 

In Boscher v UCI Ltd [2019] the employee worked as an insurance worker. He was arrested by the police due to an allegation that he was in possession of indecent images. He told his employers about this. At the initial court hearing he entered no plea, rather than pleading guilty or not guilty. Given that he was not denying the claim his employer was concerned that the accusations were true. 

He was dismissed due to the possibility of reputational damage, and with regard to the safeguarding of employees aged under 18 years. At the criminal trial he was acquitted because the CPS offered no evidence against him. 

The dismissal was found to be unfair, with the Employment Tribunal saying that a reasonable employer would have waited for further legal input about the allegations before deciding to dismiss.

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Employee falling victim to a scam 

We are becoming very familiar with frightening stories about individuals losing significant amounts of money due to scams – and here is another. In Reilly v Peebles Media Group [2019] an employee received an email, which appeared to come from her Managing Director, instructing her to transfer money from the company account to a new account. The employee was ‘holding the fort’ because the senior management were on leave, but she managed to contact her line manager who authorised the payment. She then received further requests to transfer money, which eventually totalled £193,250. All the requests were scams. She contacted her line manager one more time for a pin number to complete a transaction, which she was given.

The organisation managed to reclaim £85,000, and then sued the employee for the remaining money. They also dismissed her, and although she appealed, she did not pursue a claim for unfair dismissal.

It has been ruled that the employee could not be to blame for what had happened, particularly given that the first transaction was authorised by her manager and she had been given a pin number to continue with further transactions. 

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No beard policy was discriminatory 

The case of Sethi v Elements Personnel Services Ltd [2019] demonstrates the importance of thinking carefully about uniform and appearance standards and ensuring that they are not discriminatory.

The individual in question is a Sikh, and applied to a recruitment agency which supplies staff to five star establishments in the hospitality sector. 

Due to his religious beliefs, he does not cut his hair, and has a beard. He was told that five star establishments require staff to be clean shaven, and therefore he would not be added to the list of staff available for work from the agency. He claimed indirect religious discrimination.

His claim was successful. The requirement to be clean shaven was more difficult for Sikhs to comply with, and the employer was not able to justify the requirement.

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Employment status 

In Stuart Delivery Ltd v Augustine [2019] the individual was a delivery driver working fixed time slots. During those time slots he had to be available for work and do all deliveries allocated to him. However, he could ‘release’ a slot back to the pool of delivery drivers, and if someone else picked up the slot, he did not have to do the work.

The employer argued that this was a right to substitution, and as the requirement to do work personally is an essential element of being an employee or a worker, he was neither. 

However, the Employment Appeal Tribunal disagreed. The individual had no control over who did the work, and still had to do the work if no-one else took the slot. This did not mean that there was a right to substitution, and therefore the individual was a worker.

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Who transfers? 

If part, or all, of a business is sold to another employer and continues in much the same way, or if a service provided by one provider moves to another, it is likely that there is a transfer of undertaking. This means that employees transfer from one employer to another with their terms and conditions of employment intact.

The law has always been interpreted so that this right to transfer only applies to employees. However, in the recent case of Dewhurst and others v Revisecatch Ltd and City Sprint (UK) Ltd [2019] the Employment Tribunal has concluded that the right also applies to workers.

This is an Employment Tribunal ruling, and therefore it is not binding. It is likely to be appealed, and that will give us more guidance going forward. In the meantime, if you have got a transfer situation please contact us so that we can advise of any liabilities.