The rights of ‘out-sourced’ workers

The rights of ‘out-sourced’ workers

The Independent Workers’ Union of Great Britain (IWGB) are launching a legal challenge on behalf of receptionists, security officers and porters who work at the University of London but are actually employed through a facilities management company. It will argue that the staff will have the right to collectively bargain over pay and conditions directly with the university and that a denial of such a right with their ‘de-facto employer’ is a breach of Article 11 of the European Convention on Human Rights.

As it stands, the law provides that workers are only allowed to collectively bargain with their direct employer. If the IWGB are successful in their action before the Central Arbitration Committee, the doors could open for workers throughout the UK to collectively bargain with their de-facto employer as well as their direct employer.

IWGB’s general secretary, Jason Moyer-Lee, argues that “When it comes to the most important elements of pay, and terms and conditions for the outsourced workers, it is the University of London and not [facilities management company] Cordant which calls the shots.” Further, “In order for these workers’ collective bargaining and human rights to mean anything, we need to be able to negotiate directly with the university, not the glorified middle man.”

As well as bringing their claim, workers have also been striking at the University of London.

Holiday Pay Claims

Holiday Pay Claims

The CJEU in King v Sash Windows considered whether a worker who does not take paid annual holiday, because the employer refuses to pay, carries over his entitlement to paid holiday or whether it is lost at the end of each holiday year.

Conley King was believed to be working for Sash Windows on a self-employed basis, but was later found to have workers’ rights, thus entitling him to 5.6 weeks’ paid annual leave.

Sash Windows argued that under the Working Time Regulations 1998, if paid holiday is not taken in a leave year then it is lost. The CJEU disagreed; insofar as the UK Regulations say that the worker loses the right, they are incompatible with EU law and must be disregarded. A worker cannot be stopped from bringing a claim just because a new holiday year starts.

Mr King brought a claim for £27,000 of holiday pay he says he should have received for the years 1999 to 2012, the CJEU decided there was no time limit for the claim and therefore Mr King was allowed to claim payment for the entire length of his employment.

The head of the IWGB trade union, Dr Moyer-Lee, said the “bombshell judgement” was a “game changer for the so-called ‘gig economy'”. Self-employed contractors who are in fact workers (such as Uber and Pimlico Plumbers) may therefore be faced with claims for back holiday pay from as early as 1996 when the original Working Time Directive came into force.

Q. I act as my Husband’s Attorney. Can I make gifts on his behalf?

Q. I act as my Husband’s Attorney. Can I make gifts on his behalf?

Attorneys have limited powers to make gifts. The law restricts:

  • when gifts can be made
  • who they can be made to; and
  • how much can be gifted

Whilst the law is clear as to when and to whom gifts can be made, the issue of how much can be gifted is more complex.

The rules mean that attorneys do not have the power to make tax planning gifts, and they will therefore need to make an application to the Court of Protection for the necessary authority. Similarly, an application to the Court of Protection will be needed for other gifts which do not fall within the attorney’s powers.

Slater Heelis provides specialist advice to attorneys and in relation to the Court of Protection. Please call us on 0161 969 3131 and ask to speak to a member of the private client team .

 

Yet another ruling on ‘gig’ workers

Yet another ruling on ‘gig’ workers

The Central Arbitration Committee (CAC) has ruled that Deliveroo drivers are self-employed.

The test case was brought by the Independent Workers Union of Great Britain (IWGB) on behalf of drivers who were not satisfied with their current terms and conditions and wanted worker rights, including holiday pay and the minimum wage.

The CAC however found that the drivers were self-employed because of their freedom to “substitute” thus allowing other riders to take their place on a job.

IWGB General Secretary Dr Jason Moyer-Lee has commented that “On the basis of a new contract introduced by Deliveroo’s army of lawyers just weeks before the tribunal hearing, the CAC decided that because a rider can have a mate do a delivery for them, Deliveroo’s low paid workers are not entitled to basic protections.”

Dan Warne, Managing Director for Deliveroo in the UK and Ireland said however: “This is a victory for all riders who have continuously told us that flexibility is what they value most about working with Deliveroo …As we have consistently argued, our riders value the flexibility that self-employment provides. Riders enjoy being their own boss – having the freedom to choose when and where they work, and riding with other delivery companies at the same time.” Deliveroo said it was pushing to have employment law to be changed so it could offer its self-employed riders injury pay and sick pay.

The case comes at a time where a number of claims have been brought by workers in the “gig” economy demanding rights such as holiday pay, the minimum wage and pensions contributions.

Uber Drivers are ‘Workers’

Uber Drivers are ‘Workers’

The EAT in Uber BV v Aslam has ruled that Uber drivers be classed at workers, for the purposes of their claims under the Employment Rights Act 1996, Working Time Regulations 1998 and National Minimum Wage Act 1998, rather than self-employed.

Uber drivers James Farrar and Yaseen Aslam succeeded in their employment tribunal claim last year arguing that they should be classified as workers with rights such as minimum wage and holiday pay. Uber challenged this at the EAT saying it could deprive drivers of the ‘personal flexibility they value’, however were unsuccessful in doing so.

When Uber drivers had the app switched on, they were obliged to be “able and willing to accept assignments”, were subject to a requirement that they “should accept at least 80% of trip requests”, and would suffer a penalty if they cancelled a trip once accepted. Those matters were indicative of a worker relationship and inconsistent with the contractual documentation or a suggestion that drivers were in business on their own account. The tribunal was therefore entitled to find that Uber was not acting as agent between the drivers and passengers.

It is likely that Uber will appeal this decision however Frances O’Grady, the Trade Union Congress’ General Secretary, has commented: “Uber should throw in the towel and accept today’s judgment. No company, however big or well-connected, is above the law. Uber must play by the rules and stop denying its drivers basic rights at work.” Further, “This ruling should put gig economy employers on notice. Unions will expose nasty schemes that try and cheat workers out of the minimum wage and holiday pay. Sham self-employment exploits people and scams the taxman.”

 

Q I am worried about who will look after my dogs when I die. Is there anything I can do to ensure they will be cared for?

Q I am worried about who will look after my dogs when I die. Is there anything I can do to ensure they will be cared for?

A  The importance of a Will to ensure your loved ones are provided for cannot be understated. Can this be extended to your pets? The simple answer is yes although the methods of provision can become complicated.

There are few different ways you can ensure your dogs are cared for should they survive you:

  • Leave the dogs together with a sum of money to a charity in order they can find a new loving home for the dogs.
  • Name a specific person to leave the dogs with. That person should be left a sum of money to care for the dogs and there should be a requirement that the person only receives the money if they do indeed take on the responsibility for the dogs.
  • Leave your executors with specific instructions to find someone appropriate to care for the dogs.
  • Set up a trust which will leave funds to the trustees to be used for the care of your dogs until the dogs’ deaths. Although not as straightforward as the other options above this would give you peace of mind knowing that you have provided for your dogs for the rest of their life.

Here at Slater Heelis we understand how important your pets are to you. They are another member of the family whose future needs to be considered. If you want further advice please do not hesitate to contact us on: 0161 969 3131.

 

Employment Tribunals Fees Refund Scheme

Employment Tribunals Fees Refund Scheme

On 27 July 2017 we informed you about the Supreme Court ruling on unlawful tribunal fees. Almost 3 months later, the Government has issued guidance in respect of refunding individuals who had paid such fees.

As part of the opening phase of the refund scheme, up to around 1,000 people will be contacted individually and will be given the chance to complete applications. After around four weeks, the scheme will be rolled out fully. If successful, applicants will be refunded their original fee as well interest of 0.5% calculated from the date of the original payment up until the refund date.

Those who would like to make an application when the full scheme is rolled out can register their interest either by email at ethelpwithfees@hmcts.gsi.gov.uk or by post to the following addresses:

For proceedings in England and Wales:

Employment Tribunal Central Office (England and Wales)/Employment Appeal Tribunal (EAT) Fees

PO Box 10218
Leicester LE1 8EG

For proceedings in Scotland:

Employment Tribunals Central Office Scotland/Employment Appeal Tribunal (EAT) Fees

PO Box 27105
Glasgow G2 9JRX

Q. What is a Deputyship Order?

Q.  What is a Deputyship Order?

A. A Deputyship Order is an Order made by the Court of Protection when an individual lacks capacity to deal with their own property and financial affairs or health and welfare decisions. They are usually applied for when no Lasting Power of Attorney has been made.

A friend or family member of the individual can make an application to the Court of Protection to be appointed as the Deputy or a professional Deputy, e.g. a solicitor, can be appointed. The Deputy has a duty to comply with the principles of the Mental Capacity Act 2005 and has to submit an annual report to the Court of Protection in respect of monies spent and the decisions made throughout the year.

If you think that you know someone who could possibly benefit from a Deputyship Order or would like to know more about the Deputyship process, feel free to contact one of our experienced Court of Protection lawyers.

 

 

Court of Protection: The complete guide

Court of Protection: The complete guide

Whether it is in support of a loved one or family member, the Court of Protection is something that more and more of us find ourselves dealing with as we get older.

It may be that a close relative or friend is having trouble with their money or personal health due to an illness, disability or old age, and it is becoming increasingly clear that they are unable to take care of themselves. At times like these, families and friends are often looking to support each other wherever possible – and the Court of Protection can play a big role in that.

What is the Court of Protection?

The Court of Protection is the administration that grants authority over the property, finances and general welfare of an incapacitated person – referred to as the protected party. If it is deemed advisable by a close family member or professional, an application may be submitted to the Court that asks for partial or complete jurisdiction over their daily affairs.

A successful ruling by the Court grants legal authority to make important decisions regarding the protected party’s health, welfare, property and finances to an appointed relative, close friend or solicitor. This is often a necessary action to safeguard the rights of someone who lacks the sufficient mental capacity to make rational decisions because, left unchecked, they may be at risk of causing damage to themselves in some way.

Court of Protection – Understanding eligibility

A person must be of sound mental capacity when an application is submitted to the Court of Protection. But while there is no universal test to determine the precise state of somebody’s mental capacity, the ruling tends to take into account their ability to understand the consequences of important decisions. Each case must be judged on a different set of medical criteria and physical evidence that may or may not support the application in question.

Many Court of Protection cases involve elderly people who are struggling to manage their affairs, but we’re also seeing more and more cases that deal with younger people and children who have suffered an injury that has left them incapacitated in some way. The Court also has the power to grant a permanent, temporary or standalone ruling depending on the context of the situation.

What is deputyship?

The process of transferring authority over the property, finance or health care of the protected party to a family member or loved one is known as deputyship, whereby the appointed deputy acts in the best interests of the protected party whenever necessary.

It is the responsibility of the deputy to support a person’s health and welfare by arranging adequate medical care or treatment that they wouldn’t have been able to receive otherwise. The deputy may also look to secure the party’s financial affairs by planning their daily expenditure and longer term investments. Sometimes this leads to difficult decisions, though they must always be judged to be in the best interests of the protected party.

How to submit an application to the Court of Protection

If you have concerns regarding a person’s ability to look after themselves and wish to support them, it’s important to seek the advice of a legal expert who understands the Court of Protection processes inside and out.

Of course, this is especially vital if you notice the situation is deteriorating quickly. In more urgent cases, it is possible to send an emergency interim order to the Court of Protection to pass an immediate ruling, such as when a person’s health is at stake and important decisions have to be made quickly. There is no immediate fee to submit an urgent application, though of course the severity of the matter must be justified.

A record of the property, income and other assets belonging to the protected party must be declared, along with a formal notice given by the deputy that states their case and reasons for submitting to the Court of Protection. There must also be a medical certificate that is signed by a GP or specialist consultant. It’s also important to note that you cannot apply to the Court if the protected party already has a registered deputy. In such cases, you must choose to support or legally oppose the existing deputy in their decisions.

Making difficult decisions

Wherever possible, it is the responsibility to ensure the deputy communicates the context of important decisions to the protected party and any other family and friends that wish to support. This tends to require an established method of communication that is familiar and that allows plenty of time for the person to understand key information. It may even involve communication through sign language, reactions to images, nodding or blinking – whatever gets the message across.

When this is not possible, a deputy would do well to think about what their relative or friend would have decided to do in certain situations. Along with any well-known religious or political views, many of our clients also note that finding things such as old letters, personal belongings or financial budgets can help them to act in the best possible interest of a person.

If there is enough time to do so before an important decision is made on the person’s behalf, it is wise to consult the person’s family and friends to ensure a clear agreement is eventually reached. In the event of a dispute, a mediation or social help service may be able to find a resolution through which everybody can move forwards.

If you’re thinking about applying to the Court of Protection for whatever reason, we recommend you act swiftly and get in touch with a legal expert sooner rather than later as they can ensure the fundamental rights of vulnerable people are upheld.

Unpaid Trial Shifts

Unpaid Trial Shifts

Stewart McDonald, SNP MP for Glasgow South, has introduced a Private Members’ Bill in Westminster to guarantee trial shifts are paid ‘properly and fairly’.

McDonald has asked Prime Minister Theresa May to take action as young people were the group most likely to face exploitation with many working as many as 40 hours for free without any guarantee of employment at the end of the trial. He says, ‘the practice is not only soul destroying, it is unacceptable,’ and that his bill would make it clear that “if people are going to be offered a trial period where they apply their skills in the hope of securing a job, then they should be paid for their work during that period – whether or not a full offer of employment is made.”

McDonald has backing from SNP Westminster leader Ian Blackford who has invited both Theresa May and Jeremy Corbyn to support the bill and “end an injustice”.