Be Aware – July 2018
World Cup Special
With major sporting events that tend to run over a series of days or weeks, employers could expect to face some of the following issues: requests for annual leave, requests to work from home, sickness absence, increased website usage during work hours (streaming sports, use of social networking sites etc), prolonged lunch breaks, reduced hours, lower productivity and being under the influence of alcohol during working hours. Here are a few pointers to help you deal with any challenges as they arise
There is no legal obligation for an employer to provide facilities to enable staff to watch major sporting events or to be more lenient to employees about annual leave or flexible working during these times. However, studies have found that sport and conversations about sport between staff and customers or clients can have a positive impact on morale and mood, improving motivation and productivity in the working environment.
To facilitate this, employers can consider one or more of the following options: allowing flexible working arrangements, relaxing rules on radios and internet access and providing communal facilities to televise the sporting events during designated breaks or after working hours.
In addition, if practical to do so, providing television screens in a designated room (for example a kitchen or staff room), means that employees don’t have to leave work to watch the sporting event which could also minimise the risk of employees pulling ‘sickies’, requesting annual leave at short notice or working from home.
If an employer does decide to monitor employees’ internet usage then, in addition to implementing a company-wide policy, it should also check whether the employment contracts contain a provision entitling the employer to monitor usage. The absence of a contractual clause could, potentially, lead to a breach of trust and confidence and a claim for constructive unfair dismissal.
You should also consider the impact of data protection when implementing a policy. Before any monitoring is undertaken, it is essential to undertake an impact assessment. Some helpful guidance on monitoring employees is set out in the ICO employment practices code (based on the now repealed Data Protection Act 1998.
As with all sporting events nationality can become much more important and contentious. Discrimination is prohibited in employment under the Equality Act 2010 and nationality falls within the definition of race so you will need to be alert to potential discriminatory behaviour towards an employee, particularly on grounds of harassment, when passions are high among employees and the use of ‘banter’ may be more commonplace.
You will also need to be careful limiting employees to watching only England matches during working hours as employers could inadvertently expose themselves to legal challenge on the grounds of dis-crimination where the policy does not apply equally to all matches played during a tournament that involve the employees’ respective national teams. Unfortunately, there is no risk-free way of dealing with this issue if the employer wants to have a policy, as any type of restriction on watching games based on an employee’s nationality, or because England is the ‘home’ nation, could give rise to a direct or indirect discrimination claim.
To manage any issues which could arise during major sporting events, implementing a company-wide policy or statement is advisable.
Over the past few years there has been a boom in the car wash and valeting industry. However as with any industry the calibre of those offering services can be inconsistent. At their best these services provide customer benefits, drive customer footfall through connected businesses and provide added value.
However, with the increase in the industry we have also seen questionable business practices develop. Running a car wash or agreeing to a carwash operating from your premises carries significant risks.
One of the commonly identified issues is the adherence to employment rights. Whilst a good employer will comply with their obligations some businesses do not. These can include:
- Breaches of the National Minimum Wage Regulations
- Breaches of the Working Time Regulations
- Breaches of Health and Safety regulations
- Employing children and young people in accordance with the Children and Young Persons Act 1933 (as amended)
- Recruitment – before employing someone it is essential to check whether that person has the right to work in the UK
- Modern Slavery offences
Whilst these will most likely be the responsibility of the legal entity running the car wash employment law will look at the practicalities of the employee/employer relationship to determine the employer. The more your business exercises control over the activities of the car wash, the greater the risk that it may be deemed the employer for the purposes of U.K. employment law.
Tax avoidance is another commonly identified issue. This can include
- PAYE and NIC contributions
- Council Tax
Again, taxation will be the responsibility of the legal entity running the car wash. However, where there is no clear contract between the parties the person responsible for the taxation, the position can be unclear, particularly where the related business assist in providing amenities and/ or displays pricing and collects any fees.
One of the larger risk of car washing activities is its environmental impact. A breach of environmental protection regulations can result in significant damage to an ecosystem as well as significant clean up and rectification costs.
Environmental regulation requires that contaminated water be treated correctly either by collection and disposal through a registered waster carrier or through the foul water drain system where the appropriate permissions are obtained.
There is also the risk of pollution through the fuel and oil contained within the vehicles themselves. Certain areas being used as refuelling areas, vehicle maintenance areas and car parks are required to have oil separators to prevent pollution from water runoff entering the local eco system. This is a particular issue with car washes as even where a system is in place the presence of detergent can render a valid system inoperative and require a sealed treatment system instead.
Under the Environmental Protection Act 1990 anyone who is an ‘appropriate person’ may be liable for any pollution. For the purposes of liability the act identifies 2 classes of person.
Class A- a person who causes or knowingly permits contaminating substances to be in, on or under the land in question, or
Class B- the owner or occupier of contaminated land, but only where a Class A person cannot be found
Whilst the authorities will always seek the polluter first, any car washing entity responsible for pollution may also be difficult to trace. Any owner or occupier who permitted the car wash on their land will always be a class B person and may also be a call A person where they knew and permitted the pollution to occur.
Furthermore, any officers of the companies concerned may themselves be personally liable where they knowingly permitted the presence of pollution and the company has been dissolved.
This article is not intended as a guide only and the issues identified are only the most common and are not definitive.
Before entering into any agreements with a car washing entity members need to ensure they fully understand the risks. Wherever possible a written agreement should be established to ensure each party is aware of their responsibilities. This agreement should identify the parties as well as clearly set out the basis of any occupation of the premises, the responsibility for any taxation and environmental protections etc…
Zero Hours Contracts and Part-Time Workers Claims
The Employment Appeal Tribunal (EAT) has recently clarified in Roddis v Sheffield Hallam University that there is a risk, where employees are employed on zero hours contracts and they are treated less favourably that fellow employees on other forms of contract, of claims under the Part-time Workers Discrimination legislation.
In the case the Claimant, who was an associate lecturer, was employed under a zero hours contract and brought claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. He compared himself with a full-time lecturer who was working under a permanent contract. Under the Part-time Workers Regulations, Claimants have to show they were employed under the same ‘type’ of contract. The original Tribunal struck out the claim finding the Claimant was not employed under the same type of contract for the purposes of the legislation, because he was on a zero hours contract. The Claimant appealed to the EAT.
The EAT found the Tribunal was wrong and substituted its decision finding the contracts were of the same type and so could be compared.
The case is a cautionary one for employers who regularly use zero hours contracts and flags there is a risk where zero hour employees are treated less favourably than other employees on similar permanent contracts then they can pursue claims against the employer. Care should be taken in drafting terms to ensure that zero hours employees are not put on inferior terms.
Case law update – bumping and redundancy
Bumping in redundancy is where one employee (whose position is redundant) is transferred and effectively “bumps” out another employee, whose position is not redundant, but nevertheless that second employee is dismissed because of the redundancy situation affecting the first employee’s position.
Bumping can potentially be a fair reason for dismissal. It has always been something of a grey area, especially the extent to which either the employee or employer have to consider bumping as part of a fair redundancy procedure. In a recent case the Employment Appeal Tribunal (EAT) has held that an employee need not specifically raise bumping in a redundancy consultation process for the employer to have to consider it.
The EAT held that the decision to consider, or not to consider, bumping must be viewed through a “range of reasonable responses” test – see below. In this case Mirab v Mentor Graphics (UK) Limited the Claimant’s role had been made redundant and the Employment Tribunal held the dismissal was a fair redundancy dismissal. The Judgment of the Tribunal said that the Respondent company had done enough looking for alternatives and had not been required to consider “bumping” because the employee Claimant had not raised the possibility.
The EAT held the decision was an error by the Tribunal. There is no rigid rule saying that an employer must always consider bumping in order to fairly dismiss in a redundancy case, but equally there was no rule that says an employer does not need to consider bumping unless the employee raises it. The question for the Tribunal is always, on the particular facts of the case, whether what the employer did fell within the “range of reasonable responses”. This means that, essentially, another employer could have come to the same decision on bumping, even if some employers may have taken a different view.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, call 0845 305 4230 at any stage for advice and assistance as appropriate.