Employment Law Update 2014, Liverpool

Your employment law update for the year leading up to October 2014.

22nd October 2014

About the Conference

Janet Newsham, our blogger for the day, provides this overview of the conference presentations to give those who could not attend a flavour of the day and to those who could, a reminder of just some of the comments raised by our speakers.

Carolyn Jones, Director of IER, welcomed everyone to this Employment Law Update Conference. She said that numbers attending show the importance of law in the workplace. Carolyn pointed out that we can have the best laws in the world, but if access to justice is priced out of reach, then laws are meaningless. Workers in the UK have fewer rights than workers in the rest of Europe yet there are threats by the political parties to remove yet more rights.

Dave McMonnies from TU Education at Wirral Met and pensions expert was the first speaker. Dave spoke about public sector pensions. He began by explaining how the public sector pensions had changed over the last 20 years. He explained carefully and clearly how the pensions were calculated. About 18% of workers are staying in work after old ‘normal retirement age’. The way forward is to look at the flexible, phased, partial retirement. There is a right to request this but employers are able to reject it, so trade unionists need to understand the arguments to represent members and negotiate the best deals. Most schemes insist on a minimum reduction of 20% and the individual can receive some pension to compensate for the loss of wages. Dave concluded by saying it is absolutely essential that trade unionists get trained and understand the pension choices.

Jo Seery, a solicitor from Thompsons, was the next speaker, talking about holiday pay calculations. She began by saying that this was a positive, good news story – good news for casual workers and bad news for employers – with costly implications for those who try to ignore the right. She explained the background to the rights, highlighting how holiday pay derived from the European Working Time Directive, implemented to protect the health and safety of workers and therefore shouldn’t be compromised by economic considerations. She explained that every worker is entitled to 5.6 weeks paid leave (includes zero hours workers at normal pay rate), which cannot be replaced by a payment in lieu. Bank holidays can be included in that 28 day entitlement but that doesn’t give workers the right to time off on the bank holiday. Payment for holidays are set at a rate determined in the contract and could include shift allowance or guaranteed overtime (not the same as compulsory or voluntary overtime). These were normally based on basic pay, however challenges to the implementation of the European Directive by workers has resulted in changes to include payments for items intrinsically linked to the performance of a worker’s duties (excludes expenses), including payments for commissions not able to be earned for the holiday period (the level is currently being determined by UK tribunals). Also included can be overtime pay, bonus pay, shift premia, standby – emergency call out payments. Issues for trade unions and courts will be how holiday pay is calculated, is there any issue of back pay and are there any potential legal claims?

The next speaker was Jill Rubery on zero hours contracts. She placed her comments on the impact of such contracts in the context of her research work on the UK social care sector. She explained how the numbers of zero hour contracts could be as high as 3 million jobs (employers say 1-1.5million). People on zero hours contract struggle with employment and income insecurity. They can face exclusivity clauses in practice even where not specified in the contract. NI and pensions contributions can be interrupted and work can be cancelled at short notice. She outlined the confusion surrounding the status of those employed on these contracts – are they workers, employees or self employed – and explained the different rights each category is entitled to – i.e. annual paid leave, redundancy rights, statutory maternity or paternity rights and more (see employment rights chart in Jill’s presentation). Jill also highlighted the consequences of being on a zero hours contract in terms of social security benefits and issues still to be addressed – eg if you quit a zero hours job,will you have to wait for benefits? Will the forthcoming Universal Credit system require people to take a zero hours contract job? The cost to the state of these contracts will increase.
Zero hours contracts are used in different industries, in different ways. For workers providing social care zero hours contracts have been used to offer no minimum work periods, they have unpaid breaks between calls, non payment of travel time, every minute monitored, subject to last minute changes and having to work long hours to earn a basic wage. This is not “family friendly flexibility” as often portrayed in the media.

To address these issues, Jill suggested that unions negotiate over minimum work periods and maximum unpaid break times, travel costs and guaranteed hours .

The final presentation in the morning was Paul Scholey on social media and the law. He began by saying that the scale of the issue was 271 million active users of twitter with 500 million tweets a year and 1.3 billion on facebook. Some employers are encouraging employees to post positive messages about their organisations but many employees are falling foul of the employers charging them with misconduct for inappropriate posts or tweets.

Case law is sparse, most cases have been settled at ET and therefore are not binding. Reputational risk factors include: how serious was the content of the post/tweet, who saw it, how many, who complained, was confidential information disclosed, was the employers identity clear? Some people try to argue HRA qualified rights of privacy and freedom of expression, but difficult to argue when such messages are easy to copy, paste, and forward and the language as well as the content is offensive. Paul argued that principles of unfair dismissal apply the same in social media cases as in non social media cases but more employees are exposed to the risk of dismissal.

Deshpal Panesar opened the afternoon session talking about Age Discrimination. Broad trends include: detail in the discrimination legislation is beginning to tighten up and become more rigorous. Age discrimination is widespread and very damaging. Demographics show that the world is changing, birth rates declining and populations are getting older. In work it is becoming more important. Two main issues in age discrimination cases: has age discrimination taken place and if so, is there justification?
Justification has now been restricted and reason has to be appropriate and necessary, including looking for alternatives. It cannot be justified by cost alone but can be justified by cost plus.

So when does age discrimination arise? Any time a person is treated differently because of there age, or comments made about a persons ability to do the job based on their age. There can however be justification for a retirement age.

Tracy Harding Head of Health and Safety at Unison spoke about SARAH – the social action responsibility and heroism bill. It is known as the good Samaritan Bill and is supposedly being introduced to reassure volunteers in emergency situations to stop them being sued for negligence.

There are many concerns with the wording and intentions of the bill. Chris Grayling introduced the bill and talked about small business’s being covered by SARAH and therefore exempt from the existing health and safety legislation. Individuals could be liable to being sued for carrying out their job. Individuals could be unable to sue their employers if they are injured or made ill by work.

SARAH was introduced supposedly to stop the so-called ‘compensation culture’. However it is likely to leave workers vulnerable and at risk of personal litigation. It has now reached its final reading and is proceeding to the House of Lords.

Our final speaker was Hannah Reed who is the TUC’s senior employment rights officer. She spoke about how our employment rights have been stripped. How this Government have made it easier for workers to be sacked and more difficult to enforce rights in ETs. She highlighted Government attacks on collective bargaining rights including TUPE, facility time, collective redundancy and further possible attacks on right to strike.

Hannah enthusiastically explained a number of campaigns taking place in the TUC, including:

  • Stemming the tide of casualisation – about individuals not benefitting from any recovery, relying on pay day loans and food banks. That casualisation is not just a problem in low paid jobs but also in our professions, resulting in longer and irregular hours and pay. TUC research shows 1/3rd of pay of permanent staff earn less than living wage and any carers are unable to access regular work because they are unable to access childcare. Other forms of casualisation include the increased use of agency workers, false employment and umbrella companies.
  • Decent Jobs Week – the TUC are planning a big campaign week in the run up to Christmas to raise awareness, including fun activities and street stalls to keep the issue on the agenda.
  • TUC are also campaigning to restore access to justice and want a new framework of employment and trade union rights. The TUC are campaigning for equal and better rights for all workers from day one in the workplace, improving redundancy rights and restoring TUPE rights and an improved worker voice.

The day was packed with information, ideas and enthusiasm.



Chaired by Carolyn Jones, Director of IER

Dave McMonies, Trade Union Education
Public sector pensions: changes and challenges


Jo Seery, Thompsons Solicitors
Happy Holidays: calculating holiday pay


Jill Rubery, Manchester Business School
Zero hours contracts


Paul Scholey, Morrish Solicitors
Developments in social media and employment law


Desphal Panesar, Old Square Chambers
Age Discrimination update


Tracey Harding, unison
SARAH – who is that? Have you met yet?


Hannah Reed, TUC
Employment wrongs need employment rights

Click here to download the full programme