IGA News

Legal Update - December 2015

Legal Update - December 2015

30 November 2015

Travel Time to and from Work Counted as Working Time

“In the case of mobile workers, does the time spent travelling from home to customers’ premises at the start of the day, and from the customers’ premises to home, have be regarded as ‘working time’ for the purposes of the Working Time Directive?”

It does following the ruling from the Spanish case of Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, known as the Tyco case.

This case was sent to the European Court of Justice (EJC) for consideration. The facts of the case were that Tyco employed technicians who installed and maintained security equipment at customers’ premises in Spain. The technicians were provided with a vehicle and they travelled from their own homes to the locations they were instructed to install the equipment, sometimes of distances exceeding 100km. They were in contact with their employer by mobile phone and were not generally required to travel to an office or a central location, save for the weekly purpose of collecting tools and materials.

Tyco argued that the technicians’ travelling time was a “rest period”, for the purposes of the Working Time Directive and the relevant Spanish legislation, rather than working time because they were not carrying out any installations or maintenance during those periods. Tyco also argued that because the technicians’ had the individual autonomy to make decisions as to their itinerary and which route(s) to take during their travelling time, these factors put them outside the boundaries of the Directive.

The EJC disagreed with their first argument, stating that such an argument “would distort that concept and jeopardise the objective of protecting the safety and health of workers” and that it was working time. The ECJ also disagreed with their second argument and made reference to the fact that the travelling time can neither be shortened nor used freely by the technicians for their own interests. Therefore it was concluded that the technicians were “at the disposal” of Tyco and thus their travelling time was covered by the Directive.

The result of the case was the ECJ finding that travel time for workers without a fixed work place, when travelling to the first customer/from the last customer, is counted as working time. This decision was based on both the Advocate General and the ECJ finding that the three criteria of working time, under Article 2 of the Working Time Directive, was satisfied. Namely that the time travelling was spent carrying out their duties/activity to and from customers. Secondly the workers remained at the employer’s disposal because their destination/route could change. In other words they were not free to go about and do their own personal errands. Thirdly the travel time was considered as work because they were carrying out their duties on journeys to and from the customers. The court held that the journeys starting and finishing at the worker’s home was irrelevant and in this case it was simply as a result of the company abolishing regional offices.

Whether employers in the UK need to do anything depends on whether they have employees who do not have a fixed place of work. If they do then under this ruling the start and end travel time should be included albeit technically this decision is not yet legally binding on our UK courts in the private sector. It is much like the holiday pay situation whereby Europe has given a decision and we wait to see how it is implemented in the UK courts. If employers want to take a safer legal approach, it would be wise to incorporate this practice. No doubt a test case in our Employment Tribunals will follow.

Andrew Macmillan

Solicitor

Motor Industry Legal Services

MILS HR Update – Employing Apprentices

Many employers recruit apprentices to enable them to avoid skill shortages in traditionally skilled occupations. An apprenticeship is a work based training programme which leads to nationally recognised qualifications. It permits the apprentice to attend day release training whilst combining attending the workplace and working alongside experienced employees/workers. It can either be for a fixed term period or until a level of qualification is reached. Since 1st October 2010 apprentices have been entitled to a national minimum wage rate.

In 2011 the Apprenticeships, Skills Children and Learning Act 2009 (ASCLA 2009) came into force which provides broadly two legal forms of apprenticeship; a contract of apprenticeship and an apprenticeship agreement. The apprentice will be an employee under both forms of apprenticeship but the employer will have certain additionally responsibilities for an apprentice employed under a contract of apprenticeship; the main reason being in relation to terminating the apprenticeship. Note this Act does not apply to Scotland and Northern Ireland so Scottish employers should seek further advice on this issue.

Prior to the introduction of ASCLA 2009, the status of an apprenticeship was governed by case law, with the Court of Appeal finding a modern apprenticeship could still constitute a common law contract of apprenticeship as long as it satisfied traditional criteria relating to the duration of the contract and the employer’s obligations under it. This made it particularly difficult for employers to terminate the apprenticeship prior to the expiry of the term of contract/reaching the required qualification.

Contract of Apprenticeship

With this form of apprenticeship the primary purpose is training and providing work for the employer is secondary. This provides apprentices with enhanced rights on termination of their employment compared to ordinary employees. With this form of apprenticeship an employer cannot easily dismiss an apprentice on the same grounds that they can dismiss an ordinary employee and therefore the employer could not terminate for say conduct or capability reasons as they would with a misbehaved or underperforming ordinary employee. It remains arguable in law that if there are clear express terms in the contract that allow termination in certain circumstances, then the employer can still rely on these terms, but the wording needs to be very clear and the legal position is still somewhat uncertain. Employers therefore have to let the contract of apprenticeship run its course unless an exceptional situation occurs such as a complete closure of the business resulting in redundancies for all employees.

Apprenticeship Agreement

This form of apprenticeship is governed by ASCLA 2009 and therefore seeks to balance the needs of the apprentice with the needs of the employer. Within this framework an apprentice has normal Employment Law rights as the contract is deemed to be a contract of service rather than a contract of apprenticeship. However, the agreement must satisfy certain conditions under ASCLA 2009 and be in a prescribed form.

There are four conditions required to qualify as an apprenticeship agreement which are:

1. The apprentice must undertake to work for the employer;

2. The agreement must be in the prescribed form, notably it must contain the basic terms of employment required to be given to the employees under Section 1 of the Employment Rights Act 1996. It must also include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework;

3. The agreement must state that it is governed by the law of England and Wales (as the legislation does not extend to Scotland and Northern Ireland);

4. The agreement must state that it is entered into in connection with a qualifying apprenticeship framework.

Employers will still need to take care when dismissing apprentices under this type of apprenticeship where those apprentices have acquired sufficient continuous service for Employment Law rights. Once the apprentice has acquired two years’ employment then the employer will need to be able to demonstrate both a fair reason to dismiss and that dismissal was reasonable in the circumstances to avoid the risk of an unfair dismissal claim. Employers should still take care in relation to avoiding any discriminatory behaviour, notably age discrimination due to apprentices normally being younger employees.

Developments

Note that the Government has for some time been proposing to overhaul apprenticeships and this may alter the position set out above. It follows that, if you are looking to employ an apprentice, further advice may be needed.

The government has recently published the Enterprise Bill which includes protecting the “apprentice” brand by (amongst other things) making it a criminal offence to offer an apprenticeship course or training if it is not a statutory apprenticeship.

Andrew Macmillan

Solicitor

Motor Industry Legal Services

Consistency in Disciplinary Decisions

When can an Employer face claims in the Employment Tribunal?

“I had two employees who were out on a works-organised drinks evening and, unfortunately, there was a fight between them. Both of them had been drinking. My Sales Manager (John) punched the Sales Executive (Jason) in the face. Jason had been goading him, however, and was then threatening afterwards that he was going to follow John and beat him up (although he never actually did so, after he sobered up). Should I dismiss them both and what are the risks if I only dismiss John, as he threw the punch?”

Good news for the employer

The first point to make here is that the risk for the employer of claims greatly increases if he either employees has close to, or over, 2 years’ service. Normal unfair dismissal rights apply a week below the 2 years. If both employees here have short service, then there is a fair degree of latitude for the employer to do as they choose, and they could certainly decide to dismiss neither, both, or only one of the employees.

In such situations a basic paper-trail would still be advised, with an invitation to a disciplinary hearing setting out the charges and a right to be accompanied at the hearing. The disciplinary case should be put to the employees at the hearing, minutes are taken and then a decision is given in writing with a right of appeal. If the employer determined this to be gross misconduct then of course there would also be a good case to summarily terminate, i.e. without any notice payable.

More good news for the employer

If either John or Jason had the right to claim unfair dismissal, however, and had over 2 years’ service, then a certain degree of consistency of treatment must be applied. That said, case law has established (and a recent case this month MBNA Ltd vs Jones has confirmed) that, provided there are factual differences relating to the acts of the employees in question, then it won’t be an unfair dismissal if the employer applied their minds to the facts and could make distinctions between the degree of culpability.

In the above situation, the fact that one threw the physical punch would be enough. Tribunals are not supposed to be second guessing the reasonable decisions of the employer, provided that reasonable decisions are made on the facts, after a reasonable investigation and a fair procedure.

Of course, there are some circumstances in which these circumstances are truly parallel, in which case it could be unreasonable for one employee to be dismissed and the other to be given a warning. Those cases are rare however and generally an employer is entitled on the facts to decide, within a band of reasonable responses, the disciplinary sanction applicable.

However: Beware discrimination, whistle-blowing and raising statutory rights

It is still of course possible for an employee, regardless of length of service, to claim that the disparity of treatment is not on the facts of the incident, but motivated by some form of whistle-blowing or discrimination or because they raised certain statutory rights. If that was the case, then it can give still rise to a Tribunal claim, hence the advantage (even with employees who have under 2 years’ service) of following a fair procedure and laying a careful paper-trail, documenting the facts that led to distinctions in disciplinary outcomes.

Andrew Macmillan

Solicitor

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.