Category Archives: Insight Article

The mini break may have made the perfect date for Bridget Jones, but when it comes to employee rights, companies need to make sure they do everything to enable workers to take a full, uninterrupted 20-minute rest break.

The warning comes after the Employment Tribunal found Network Rail to have failed to take the necessary steps to facilitate 20-minute rest breaks, despite the employee being in a role that has special provision for alternative arrangements.

A railway signalman who was responsible for running single-manned signal boxes on eight-hour shifts brought the case. Due to train timetables, he could not take an uninterrupted break and had to be on-call when he did take a break. As a result, he argued that he had been denied his legal entitlement under the Working Time Regulations 1998 (WTR).

All workers are entitled to an uninterrupted 20-minute rest break away from their usual working location after six hours of working under the WTR. It must be known to be a rest break before it starts. So, if someone has had an unexpected 20-minute gap in their day, an employer cannot treat this as a rest break retrospectively.

If a worker is on call during a break, then it will not count as a rest break, but Regulation 24 of the WTR says that some workers will be excluded from these provisions as it may not be feasible to schedule the rest break in the usual way, but they must be allowed an equivalent period of compensatory rest. This applies to railway workers and others such as paramedics or lone workers such as those in a security role.

Although Network Rail provided a relief signaller in some regions, they did not do so in Mr Crawford’s region. Instead, they told him that he could take shorter breaks during his shifts “between periods of operational demand” and that these shorter breaks would add up to more than 20 minutes.

At the first hearing, the Employment Tribunal held that Network Rail had acted correctly and that when added together the short breaks were compliant with the requirements of compensatory rest. However, Mr Crawford appealed, and the Employment Appeal Tribunal (EAT) ruled against Network Rail. The EAT said that if it were possible to provide workers with a full uninterrupted 20-minute break, then that should be what happens. As Network Rail were providing the relief signalman in other regions, they must have been able to take steps to provide the same option in Mr Crawford’s region.

Employment lawyer, Karen Cole, said:

“Minimum rest periods are there for the protection of health and safety and this ruling demonstrates, once again, that tribunals will not allow employers to duck out of their responsibility.

As with all terms of employment, the starting point should be a clear policy that everyone knows and understands, especially where workers are involved in environments in which pre-scheduled breaks are hard to operate, or they are working alone. It’s important to re-evaluate regularly to see if problems are arising and take steps to ensure that breaks are being taken. You also need to be proactive about it, as arguing that a worker never asked for a break is not going to let you off the hook.”

Karen added:

“If you have a situation where it is difficult to give workers an uninterrupted break, away from their work station, then it’s worth reviewing the position with some specialist guidance, as the alternative may be an expensive tribunal claim.”

Crawford v Network Rail Infrastructure Limited

Note: This is not legal advice; it provides information of general interest about current legal issues.

Historically, performance management worked like this: an employee would annually sit down with their manager (having first completed an appraisal form) in a process often rushed and with one eye on the clock. Although this routine is still performed in some organisations, it’s not performance management.

ACAS defines performance management as ‘A continuous process’ that ensures the performance of employees contributes to the business’s goals; to continuously improve the performance of individuals and that of the organisation.

Performance management involves the perpetual process of setting goals and objectives and noting performance while giving and receiving ongoing coaching and feedback. Effective performance management contributes to a business’s success. Equally, if it’s ineffective, it will negatively impact it.

“Employees who receive ongoing feedback about their performance are more motivated to perform well in the future”

Ten ways your business can benefit

1. Increased performance motivation
   
   Employees who receive ongoing feedback about their performance will be more motivated to perform well in the future. This also increases the likelihood they will stay with an organisation.
   
2. Increased self-esteem
   
   There’s a basic human need to be recognised and valued at work.
   
3. Insight
   
   Managers gain a better understanding of each employee’s contribution to the business.
   
4. A sense of purpose
   
   Employees better understand what’s expected of them and what it takes to be a successful performer (i.e., the criteria that define their role and its success).
   
5. Fairer/more appropriate administrative actions
   
   A performance management system provides valid information that can be used to manage bonuses, promotions, transfers and terminations.
   
6. Clear goals
   
   The team’s and the business’s goals are made clear, and employees understand the link between what they do and the company’s success.
   
7. Increased competence
   
   An effective performance management system doesn’t just improve an employee’s performance; it sets a solid foundation. This allows them to grow and become more successful by establishing development plans.
   
8. Misconduct is reduced
   
   A good performance management system provides an appropriate framework so employee misconduct is clearly defined and identified early – before it leads to disciplinary action.
   
9. Employee claims
   
   Data collected through a performance management system can help employers document compliance in adopting fair and reasonable procedures and treating employees well. This can stand you in good stead when facing a claim.
   
10. Performance clarity
    
    A performance management system allows businesses to quickly identify good and poor performers, forcing line managers to promptly address performance problems.

Putting your performance management system together

Set clear expectations

Employees should never be left thinking, ‘what’s expected of me?’. If no standard has been set, they won’t be able to meet it. This often derives from a lack of communication, so always ensure you clearly explain expectations, check an employee’s understanding, and challenge any assumptions.

Regular feedback

Managers who excel at managing performance do not wait until the annual appraisal to discuss an employee’s record. This should happen on a regular and informal basis. Formal meetings should also be held to confirm and record discussions that have taken place throughout the year. That way, there are no surprises later.

Support and develop

It is little use pointing out where someone is falling short without discussing a plan of action that addresses the issue(s). Effective performance management is about supporting employees to reach their full potential. This could come from mentoring, coaching, training, seminars or other development activities. Employees who perform well need some incentive to continue doing so.

“A performance management system allows businesses to quickly identify good and poor performers”

In short:

• A well-thought-through performance management system can benefit your business.
• If people have a sense of purpose, they’re more likely to stay with the company.
• It’s easier for employees to reach targets when they clearly know what’s expected of them.
• If employees are performing well, they should be incentivised to keep doing so.

As a starting point, ACAS has produced a helpful advisory booklet which sets out the performance cycle ‘How to manage performance’. Of course, performance management is not a cure. You must also give attention to the recruitment process at the outset, as well as implement any capability or disciplinary procedure in a timely way when an employee is identified as a poor performer (despite effective performance management being in place).

With the right resources, a performance management system can help turn your business around. The best part is, it can be implemented in any company, no matter the size, so both employees and employers can start reaping the benefits.

Note: This is not legal advice; it provides information of general interest about current legal issues.

The initial revelations about the Hollywood mogul inspired many others to take the arguably brave step to share their experiences of sexual abuse and harassment; millions of posts and tweets using the hashtag #metoo have been posted to social media.

That response was also reflected in figures from a ComRes poll on behalf of the BBC, which showed that more than half of all British women and a fifth of all men had experienced some form of sexual harassment in their place of work or study.

Such harassment comes in many forms but includes any unwelcome sexual advances, whether by touching, standing too close, asking for sexual favours, or displaying offensive materials. Employees are protected in the workplace by the Equality Act 2010, which makes it unlawful for an employer to allow any job applicant or employee to be subject to any harassment related to sex or of a sexual nature.

The research commissioned by the BBC showed that many who had suffered sexual harassment at work could not face the process of reporting an incident. Of those who said they had been harassed, 63% of women and 79% of men said they did not report it to anyone.

Employment lawyer Karen Cole said:

“Many employees will not report incidents because they’re embarrassed or ashamed, or may feel they will not be believed, as it is usually one person’s word against another. Any complaint must be brought within three months and the individual must be prepared to prove the conduct was ‘unwanted’.

This makes it difficult, as there are often circumstances where those being harassed may feel a passive position is the safest way to handle the situation, so the other party may argue it was mutual. Similarly, different people may have different ideas of what is acceptable; someone might think it’s ok to make racy jokes or engage flirtatious behaviour, where the other may find it offensive or humiliating.”

Resources published by the Equality and Human Rights Commission and conciliation service, ACAS, recommend that every business has a written policy setting out how harassment at work is unlawful and making sure all staff understand that such behaviour will not be tolerated and may be treated as a disciplinary offence. Examples of what constitutes unacceptable behaviour may help people understand the boundaries, particularly if they are relying on what may have seemed acceptable in previous years, together with guidance to staff on how to respond and deal with such behaviour. Then, most importantly, a clear process for the organisation’s steps if anyone feels they have been subject to any form of harassment, including a safe environment for reporting and handling any complaints.

Karen added:

“However large or small the company, top of the agenda should be a focus on the best possible attitude towards equality and diversity in the workplace. With research such as the BBC’s showing that it is usually a junior member of staff experiencing the harassment, management should lead the way in demonstrating that everyone, from the top down, has zero tolerance to inappropriate behaviour. Staff should be confident they can report any concerns, knowing they will be heard in a supportive, positive way.”

For further information on any harassment issue or, indeed, any other employment issue, call Karen Cole.

Note: This is not legal advice; it provides information of general interest about current legal issues.

The Oxford English Dictionary defines “gig” as “a job, especially one that is temporary or that has an uncertain future”. It also defines the “gig economy” as a “labour market characterised by the prevalence of short-term contracts or freelance work as opposed to permanent jobs”.

It is common for the gig economy to be associated with companies using new technologies to promote their business, but it is just as common in other sectors such as social care, retail, cleaning and construction.

Historically, businesses with fluctuating demand would perhaps have maintained a core workforce with casual employees or workers. The term “casual worker” covers many different types of working arrangements including bank staff, seasonal workers and individuals working on zero-hours contracts. Casual workers have fewer rights than employees but are still entitled to some employment protection including the national minimum wage and paid holiday.

Businesses within the gig economy have tended to engage individuals not as employees or workers, but as self-employed contractors who have the freedom to accept work (the gig) or reject it. Pimlico Plumbers, Deliveroo, City Sprint and Uber have all hit the headlines in recent times with cases in the Employment Tribunal (ET). This is because increasingly some individuals are challenging their employment status as independent contractors and arguing, with some success, that they are in fact workers; giving them increased protection at work. A self-employed person is not entitled to the statutory rights afforded to employees and workers and is responsible for their own tax and national insurance contributions. It is therefore an important distinction to make. Any self-employed person will need to fall outside the definition of “employee” or “worker” as defined in the Employment Rights Act 1996 (ERA 1996). However, the distinction between worker and self-employed is somewhat blurred.

A worker is defined in the ERA 1996 as either an employee or an individual working under

“…any other contract, whether express or implied and (if express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking, carried on by the individual.”

ERA 1996

All employees are therefore workers and the alternative, as cited above, has been subject to extensive scrutiny by the ET and courts to determine what types of working arrangements fall within its scope.

The difficulty with the “worker test” that has evolved through case law, is that it depends on the facts of each case. This can produce inconsistent results, making it difficult to know with any certainty whether someone is truly self-employed. The lack of certainty has been identified as one of the primary weaknesses of the current framework for clarifying those who provide services.

A further complication is that an individual can be self-employed for tax purposes, but be a worker for employment status purposes. This is because tax law only distinguishes between the self-employed and the employed. There is no “worker” category for tax purposes.

Further clarification was given last week when the Employment Appeal Tribunal (EAT) dismissed Uber’s appeal against the ET’s decision that its drivers are ‘workers’ within the meaning of the ERA 1996 and the equivalent definitions in the National Minimum Wage Act 1998 and the Working Time Regulations 1998. It held that the ET was entitled to reject Uber’s explanation of its business as a technology platform rather than a provider of transport services and to go beyond the contractual documentation describing drivers as self-employed contractors offering their services to passengers via the Uber app.

Uber says it is a technology platform allowing the provision of taxi services, not the provider of the taxi service itself. It claims it is acting as an agent for the drivers, and its agreement with passengers states that the contract for the taxi service is between the driver and the passenger. Under the contract between Uber and the driver, the driver is not required to give any commitment to work. However, when a driver signs into the app, this usually signals that he is coming ‘on duty’ and can therefore accept bookings. Prospective passengers book trips through the app. Upon receipt of a passenger request, the app locates an available driver (i.e. one who is logged in). The selected driver has ten seconds to accept the booking through the app, failing which Uber assumes that the driver is unavailable and locates another. If a driver fails to accept bookings, warning messages are generated which can lead to the driver’s access to the app being suspended or blocked, preventing the driver from working.

Several Uber drivers brought ET claims of unlawful deductions from wages, relying on failure to pay the national minimum wage, and failure to provide paid annual leave. Two of the drivers were selected as test claimants and the ET considered, as a preliminary issue, whether the drivers were ‘workers’ within the definition in the ERA 1996. The ET found that they were. It rejected Uber’s case that the drivers were self-employed and that it merely provided the technology platform that allows drivers to find and agree to work with individual passengers. In the ET’s view, this characterisation of Uber’s business model and the contractual documentation created to support it did not fit with the reality of the working arrangements, which was that Uber relies on a pool of workers to provide a private hire vehicle service. Uber appealed to the EAT.

The EAT dismissed the appeal, holding that the ET was entitled to find that the contractual documentation did not reflect the reality and thus that it was entitled to disregard the terms and labels used in the documents. The ET had to decide the true agreement between the parties and, in so doing, it was important for it to have regard to the reality and the facts of the case. The ET was therefore bound to reach a fact-sensitive decision.

What’s next?

The independent review of employment practices in the modern economy (the Taylor Review) which was launched last year, has made recommendations that the definition of “worker” needs to be clearer and more consistent. An enquiry into the Taylor Review started hearing evidence on 10 October 2017 and has questioned how the government should act to ensure rights and fair pay for gig economy workers. As yet there are currently no concrete plans to change the law but that may well be just a matter of time.

Meanwhile, it is likely that Uber will appeal the EAT’s decision and may well seek to fast-track to the Supreme Court to have the case heard at the same time as the Pimlico Plumbers case.

Speak to employment solicitor, Karen Cole, for more information on employment law and the gig economy.

Note: This article is not legal advice; it provides information of general interest about current legal issues.