Category Archives: Ch ch ch changes

changes on the horizon.

HR TALKING POINT: UK MP’s publish a joint report and draft legislation to combat vulnerability within the gig economy


Today Members of Parliament from two influential Commons committee’s (the Commons work and pensions committee and the Business, energy and industrial strategy committee) will publish a joint report and draft legislation designed to combat vulnerability within the gig economy – “A framework for modern employment”

The joint report highlights concern about the growth of a vulnerable workforce, and refers business models built around flexible work on digital platforms. The report calls on the Government to close loopholes “that enable dubious business practices”. Which it refers to as “companies using bogus self-employed status as a route to cheap labour”.

The focus is on providing security and stability to those who are vulnerable. The report suggests that a “wage premium” above the National Minimum Wage and National Living Wage on non-guaranteed hours could potentially help rebalance the benefits, and might prompt employers to consider offering more stable work: for example, by providing shift details and staff rotas in advance. The report also suggests ending the Swedish derogation.

Suggested key changes to the Employment Rights Act 1996

  • Worker status by default unless evidence of self-employment (suggested 1ZB) are for there to be a presumption of worker status unless there is evidence of self-employment; and
  • Statement of Status (suggested 1ZA) – that when an individual starts to work for another party, the individual should be given a written statement of status not later than 7 days after starting work which would contain a clear statement whether the individual is an employee or a worker. See below for the actual proposed wording.

Philip Henson, Partner and Head of Employment at ebl miller rosenfalck comments as follows:

The publication in July of Matthew Taylor’s report into the modern labour market has been a catalyst for debate about the gig economy and workers’ rights. The crucial point is that this draft bill has cross party support as the Committees include 10 conservative MPs’, 10 Labour MP’s and two members of the Scottish National Party.

The Committee’s proposals, show that there is now a clear impetus from law makers to update the statutory definitions of employee and worker. The draft bill suggests that there be worker status by default, and that “statements of status” be provided. The proposals would place the burden of proving that an individual is genuinely self-employed on companies.

Whilst I do not think that it will stop the ongoing gig economy case law (which shows no sign of abating in various forums) – for the time being – it shows that there is momentum for change, and the suggested changes might help to provide clarity to the workers/self-employed individuals, businesses and of course HMRC.

The joint report calls on the Government to increase the power and resources to the Director of Labour Market Enforcement (LME), so that it can “produce a real deterrent against non-compliance with the law”. For many companies, it will also be the first time that they have heard of David Metcalf, Director of Labour Market Enforcement. I anticipate that there will be an increased call to give the LME more teeth (in the form of enforcement powers and fines), and to raise the profile of the LME.

Should businesses be fearful these proposed changes? The Committee thinks not; if those businesses are “responsible”.

Suggested changes to the legislation (Employment Rights Act 1996) regarding status (my highlighting)

1ZA Statement of status

(1) Where an individual begins working for another party, that party shall give to the individual a written statement of status not later than seven days after the beginning of the work.

(2) The statement must contain —

    • (a) a clear statement of status, specifying whether the individual is –
      • (i) an employee; or
      • (ii) a worker
    • according to the definitions in subsections (1) to (3B) of section 230;
    • (b) details of the rights and entitlements of the individual by virtue of their status.

(3) The Secretary of State may make regulations requiring companies to publish information in relation to statements of employment and worker status.

1ZB Worker status by default unless evidence of self-employment

Where in any complaint made to an employment tribunal any question arises as to whether an individual is a worker, it shall be presumed that the individual is a worker unless the contrary is established”.

Links:

A full copy of the draft bill can be viewed here: https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/352/35209.htm#_idTextAnchor048

Reference to Labour Market Enforcement – the https://www.gov.uk/government/publications/labour-market-enforcement-strategy-introductory-report

            Philip Henson – 20 November 2017

            Ebl miller rosenfalck www.millerrosenfalck.com

            ph@millerrosenfalck.com

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The pursuit of statutory protection for individuals who are non-binary or inter-sex


The pursuit of statutory protection for individuals who are non-binary or inter-sex

 

The Women and Equalities Committee performs a critically important cross-government role in respect of trans equality. In July 2015 the Committee launched an inquiry considering how far, and in what ways, trans people still have yet to achieve full equality and how outstanding issues can be effectively dismissed. The inquiry acted as a catalyst for debate and also highlighted that the Committee’s Advancing Transgender Equality action plan (from 2011), remains largely unimplemented.

A central finding of the Women and Equalities Committee report (published in January 2016) was that the terms “gender reassignment” and “transsexuals” in the Equality Act 2010 are outdated and misleading and may not cover wider member of the trans community. The Committee recommended that the protected characteristic should be amended to that of “gender identity”.

That recommendation was rejected in the government response which considered that the protected characteristic, as defined, fully complies with its obligations under the Equal Treatment Directive; which is short hand for saying they are not obliged to (and therefore will not) go any further. The government’s response cross referred to the definition in the Equality Act 2010 of treating someone less favourably because of a protected characteristic, and highlighted that it is not necessary for the person to actually have the protected characteristic themselves. It suggested that wider categories of transgender people, such as cross-dressers, non-binary and gender fluid people are protected if they experience less favourable treatment because of gender reassignment; for example, if they are incorrectly perceived as undergoing gender reassignment when in fact they are not; or are incorrectly perceived to be male or female.

There is not, however, any specific statutory guidance on (or consideration for) those who are gender fluid. The Equality and Human Rights Code of Practice specifically refers to individuals being provided with protection where they are “as part of the process of reassigning their sex, someone is driven by their gender identity to cross-dress, but not where someone chooses to cross-dress for some other reason”. The Women and Equalities Committee quoted current statistical data which specifies that some 650,000 people in the UK are “likely to be gender incongruent to some degree”.

It is clear that there is a lacuna in the current law as the Equality Act 2010 does not currently cover those who are non-binary or inter-sex (those who are born with a physical sex anatomy that does not fit medical norms for female or male bodies). As the government continues to review the equality law landscape post Brexit, now is the appropriate time to reform and extend statutory protections to those who are non-binary, and also inter-sex individuals.

Contact details:

Philip Henson

Partner and Head of Employment team

ph@millerrosenfalck.com

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Bloomon – new Shoreditch Start up


Bloomon ShoreditchWonderful London start up. Seasonal flowers, delivered straight from the field to your door, in the evening after work. http://www.bloomon.co.uk/how-it-works

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Welcome to Settlement Agreement Advice


Welcome to Settlement Agreement Advice

Call us now on(0) 20 7553 6006 for a FREE no obligation initial discussion

If your employer has provided you with a settlement agreement (formerly known as compromise agreements) you will need independent legal advice.

Our specialist employment lawyers have considerable experience of providing confidential independent legal advice to employees whether you are a manager in a medium sized business, a city worker, or an executive at a FTSE 250 company. As an example we have expertise in assisting with settlement agreements from the following as an example: Burberry Plc; Vodafone Plc; University of East London; Bank Of America; Close Bros; Jefferies; EDF Energy; and several law US and UK law firms, and City organisations.

We offer a quick and efficient settlement agreement advice service.

Call us now on (0) 20 7553 6006 for a FREE no obligation initial discussion or email ph@millerrosenfalck.com to request a call back at a time that is convenient for you

Q&A Settlement Agreements (formerly known as compromise agreements)

What is a settlement agreement?

A settlement agreement is a contract, regulated by statute, between an employer and an employee (or ex-employee) to settle a claims or a potential claims and/or to prevent the employee from instituting or continuing with employment proceedings in an Employment Tribunal (and other jurisdictions, such as the civil courts).

Why have I been asked to sign a settlement agreement?

It is increasingly common for employers to want all employees – regardless of seniority – to enter into a settlement agreement. Your employer will offer a financial sum to you in return for an effective waiver of all claims (these are often listed in a separate annex) against your employer arising out of your employment and its termination.

Settlement agreements are commonly provided to employees where the employer wishes to avoid the publicity and costs of litigation attached to terminating an individual’s employment.

Why do I need independent legal advice?

For a settlement agreement to be valid and legally binding it must meet the following criteria:

  • It must be in writing,
  • It must relate to a “particular complaint” or “particular proceedings” and
  • the employee must have received legal advice from a relevant independent adviser on the terms and effect of the proposed agreement and its effect on the employee’s ability to pursue any rights before an Employment Tribunal,

What does an independent legal advisor do?

As your independent legal adviser, we will advise on the terms and effect of the settlement agreement, and in particular, its effect on your ability to bring a claim in the Employment Tribunal under the relevant legislation.

We can also provide you with the details of an independent financial adviser who may be able to assist you.

What can employees do to make the process quicker?

To make the process quicker, it would be helpful if you could put together a bundle of papers including which we will need to see.

  • A copy of the settlement agreement.
  • A copy of any relevant correspondence (including emails) that you have received from your employer about the settlement agreement
  • A copy of your contract of employment
  • A copy of any relevant company policies or procedures – these are often included in a staff handbook.
  • Details of any benefits/share schemes.

Your employment history

We also need to know details of your employment history including:

  1. Your start date and the reasons for any breaks in the contract (to calculate statutory period of continuous employment);
  2. Your date of birth (so as to calculate any statutory entitlements);
  3. Any disciplinary record and performance appraisals, and if any warnings have been given;
  4. Details of any grievances, formal or informal, (if applicable).

Administration

Clients are often keen to come to an agreement with their employer on the terms of a settlement agreement as quickly as possible. To assist you in the planning stage we set out below a list of the initial administrative steps that all solicitors will need to carry out:

1. We need to carry out a conflict check to ensure that there would not be a conflict of interest in representing you.

2. We will send you a client care letter, and our terms and conditions of business.

3. We will also need to ask to see and take copies of relevant identification documents to verify your identity, such as a copy of your passport or a photo driving licence, and also a recent utility bill sent to your home address.

4. We will then review the draft settlement agreement, and discuss the background to the matter with you, and discuss the claims that you may have and settlement tactics.

Call us now on (0) 20 7553 6006 for a FREE no obligation initial discussion

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Magic Merger Moments – Guest blog from Sara Dixon – Firm Beliefs


What will be the ‘Magic Merger Moments’ for the new organisation? ‘ Who cares’ I hear you say. ‘Let’s just get there.’

There are a number of critical outcomes to a merger that occur AFTER the merger that need to be integrated into your pre-merger planning.  Of those organisations with which we have worked both pre and post merger, it is the identification of those MMMs that will drive success (however defined) of the merger.

Let’s face it. Most of the work pre-merger is exhausting.  Exciting yes; worrying yes.  Exhausting, certainly.  It is all that most executives can do to hang on to the merger date in their sight lines and plough through the project plan of critical processes and priorities that will get them to that date.  Come the merger day (let’s assume it’s the legal merger moment for now),  claps of hands,  slaps on the back, maybe some champagne/a few beers down the pub, a bit of PR and it is home to rest.

And energy levels are pretty low for a few months after that.  Yes – perhaps working with new folk, in a new environment possibly, new stakeholders can drive a person onwards.  There is an element of excitement to that that brings its own energy and drive.  But the reality is that, unless critical outcomes are already integrated into the new organisation’s processes and priorities BEFORE merger, the chances are they won’t happen.  Executives won’t have the energy.

Which is why the successful mergers are ones where the  post-merger moments are pre-identified, planned for and integrated into the organisation BEFORE merger.

It sounds obvious, doesn’t it; but so often it is lacking.  Even amongst the most management-skilled organisations.  Size, too, doesn’t matter! Organisations large and small; known and less well-known; driven and failing – ask them about their magic merger moments (or rather ‘what will be the proofs of success in the post-merger organisation’) and most times a blank look ensues.  Try it. Ask them.  The ones who didn’t have to think of them post merger are the ones with the biggest chance of the merger fulfilling all they planned.

Your magic merger moments could be:

  1. That all staff are happy using skype (or whatever the integrated new system is) – how will you measure that post-merger? In other words, a recognition that real merger happens when staff ‘feel’ as one.  Listen for the use of the word ‘we’.  Plan for it BEFORE merger. How will you make that happen?
  2. That your post-merger income begins to grow.  After all, most mergers see a downturn in income post-merger for a period of time.  Plan for when the upturn needs to happen and be prepared to use metrics that demonstrate that over time.  Plan for that loss and upturn magic merger moment BEFORE merger.
  3. That all stakeholders increase their relationship levels (be they clients/suppliers/the bank/donors/investors) POST merger.  All too often key stakeholders are left out of the equation when planning a merger.  Plan PRE-MERGER for their approval and continued and growing involvement with the new organisation.

I could go on.  Every organisation is different. The project plan will look different.  The priorities will differ. The comms plan will vary.  But what every organisation must plan for is ‘what will success of this merger look like?’  Identify those Magic Merger Moments BEFORE merger and plan for them. Integrate them into your project plan.

Our work with both successful and failing merged organisations tells us that it is a question of always having the basics in mind from the birth of the very idea of a merger . And the most basic is the identification of success – those Magic Merger Moments.  Easily lost amongst risk reports, stakeholder forums, legal issues,  integration of systems, PR and publicity.  And numerous other issues to consider before merger.

So make life easier for yourselves. Think of it now – what will success look like? Plan for it. Design it into the pre-merger plan.  That way, when your execs are post-merger tired, exhausted and incapable of really planning for success other than the bare minimum, you have your ‘Magic Merger Moments’ already on the way, and can celebrate each one.

About the guest blogger – Sara Dixon

Sara qualified as a solicitor in 1991 and, after six years in practice as a commercial litigator, with a specific interest in environmental law, she left to study for an MBA.

Since gaining her MBA, she has been involved in helping law firms and charities enhance their profitability and effectiveness by concentrating on their clients, their people, their finances and their information systems. She also specialises in developing the business and management skills of all those who work in organisations – whether in technical and professional roles or in administrative and managerial roles.

Sara and Branko designed, developed and delivered the Lexis NexisManagement Skills for Lawyers’ programme.  Sara has also designed and delivered an International Human Resource Management and Employment Law module at the Ministry of Defence Training Academy.

She is also part of the ACEVO Consulting pool of experts. Sara is a fellow of the RSA, a member of the Chartered Institute of Management and Management Consultants and a member of the Law Society of England and Wales.

Sara was one of the founder members of the Finance Against Trafficking charity project which involves businesses working together to support the drive against the negative impact human trafficking makes upon business and society. She continues to be involved with other businesses, including clients, who appreciate the need to be sustainable – financially, environmentally and socially.

Contact: Sara Dixon or 01296 620006

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NAO report on confidentiality clauses and special severance payments


NAO report on confidentiality clauses and special severance payments

Over the summer, the Committee of Public Accounts of the National Audit Office (NAO) heard evidence on confidentiality clauses and special severance payments across government. The Committee requested another hearing to allow time for HM Treasury to develop proposals for a framework, and for the committee to complete further work on the health; culture, media and sport; and defence sectors. The Comptroller and Auditor General has recently published its follow up investigation which is critical of the practices of some government departments, and will be of interest to all employment law practitioners who advise the government sector.

Findings

Specific findings highlight the need for: better guidance on the use of confidentiality clauses and special severance payments in compromise agreements (now known as settlement agreements); and improved transparency and oversight to identify and address patterns of behaviour.

  • Treasury has approved some severance payments, where business cases refer to failure or inappropriate behaviour

The report stressed that the Treasury has approved some severance payments, where business cases refer to failure or inappropriate behaviour. The Treasury’s guidance states that payments that reward failure, inappropriate behaviour or dishonesty should not
be approved. Yet the committee found business cases referring to elements of alleged gross misconduct or staff harassment.

The report highlights that four out of the 19 cases tested in the follow-up review involved examples of alleged failure or inappropriate behaviour. The Treasury approved all of these special severance payments, with a combined value of £251,000, despite references to performance and behaviour issues in the business cases.

  • Examples of severance agreements being agreed in response to failure to comply with internal policies and procedures

The report refers to examples where severance payments were agreed in response to failure to comply with internal policies and procedures. Including three cases, in the defence sector, where managers had not followed the internal policy in relation to the employment of staff, and that severance payments were approved to avoid claims for compensation.

The NAO confirm that they received two agreements which include clauses where the employee agreed not to pursue further complaints with a number of organisations including the Care Quality Commission and the Department of Health. The report highlight the risk that clause like those might discourage employees from raising genuine concerns about service failure with appropriate oversight bodies. They also set out a particular their case study about an employee who had previously reported concerns of fraud and patient safety.

The follow up investigation includes an appendix setting out the recommendations from their original report, which practitioners should review if negotiating terms of a settlement agreement in the government sector.

Click here for a link to the follow up investigation.

Philip Henson

 

 

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Employment Law Solicitors London


Employment Law Solicitors London

Our employment lawyers, based in central London, are recognized as employment law experts and regularly speak at HR conferences and contribute to HR and academic articles on this ever changing area of law.

We provide a partner led, commercial and confidential service for employers and also senior executives.

We guide our employer clients through the best HR practice from grievance and discipline procedures, performance management, redundancy processes and TUPE transfers to preparing settlement agreements (formerly known as compromise agreements).

How can we help?

If an employee raises a claim against your business we can advise you on the most commercial and cost effective way of resolving that dispute. We develop a tailored strategy to defend proceedings in the Employment Tribunals, or Court, or by negotiation or mediation.

Our experience

We have over 10 years’ experience of advising on employment law. We work closely with our corporate commercial and property teams on business acquisitions and due diligence procedures.

We are proud of our diverse international client base from global companies and entrepreneurs, to SMEs, as well as some private individuals.

Our team has extensive experience across many sectors including: advertising; construction and energy, fashion; financial services; human resources; legal services; logistics and relocation; media; music; property, tech and travel.

What makes us different?

  • Partner led advice

We offer all of our clients a partner-led, client-focused service, and comprehensive support from a client care partner.

  • Bespoke Employment Law Training

We offer bespoke in-house employment law/HR training seminars for your HR department, senior management team or your Board members.

For Senior Executives

  • Settlement Agreement (formerly known as compromise agreements) advice

We offer settlement agreement (formerly known as compromise agreement) negotiation services for senior executives and managers. We also provide strategic advice on contractual entitlements and internal procedures.

  • Employment Contract Review service

We are often asked to advise on the terms of employment contracts – including restraint of trade (restrictive covenants), confidentiality and competition issues.

Call us today on (0) 20 7553 6006 

Please call us today to discuss how we can help with any employment law related issues. Our Head of Employment Law, Philip Henson, can be contacted on(0) 20 7553 6006, or via email ph@millerrosenfalck.com. We look forward to working with you.

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