February Newsletter


February brings our second Employment Update of the year. We’ve seen off the first month of the year and its accompanying horror – ‘Dry January’. It’s not so much the act of people not having an alcoholic drink for 31 days (good for them) but their continual banging on about it as if they are taking part in some sort of Olympic standard challenge that ordinarily cannot be undertaken by normal human beings.

Of course, at DCES, we understand the benefits of not drinking on duty – something politicians might want to consider given that January saw more allegations of, what was described in newspapers as, ‘drunken groping’ in the Palace of Westminster. Indeed, it seems to have reached such proportions that Commons officials have launched a crackdown on alcohol – it can now only be served at designated bars and restaurants and MP’s have been warned to ‘avoid after hours drinking parties in their offices’. As crackdowns go, it is not quite up there with Stalin’s Great Terror, apparently subsidised food and drink being one of the few perks of working MP’s unsociable hours (presumably, not including expenses).

It’s interesting to note that the HSE say alcohol is the cause of 5% of absences in the workplace, causing 14 million lost working days in the UK each year. And contrary to popular belief, the vast majority of people who have, what is termed as a ‘drink problem’, are in full-time work.

On that sobering note, here’s this month’s news:

Daryl Cowan, Partner 


Extending Pregnancy and Maternity Rights

New parents returning to work could be soon to receive greater protection from redundancy. The Government has recently published a consultation paper, a consultation that we will be taking part in so any comments our readers have are most welcome.

Currently, regulation 10 of the Maternity and Parental Leave etc Regulations 1999 provides that, if a woman on maternity leave is selected for redundancy, she must be given priority over other redundant employees when the employer offers suitable alternative employment. The consultation seeks views on extending this redundancy protection for pregnant women and new parents. One of the current proposals is to extend the right of priority, as set out above, to women (and potentially parents adopting children or those taking shared parental leave) who have returned from maternity leave (adoption or shared parental leave) in the previous six months. Therefore, the protection is extended further than just to women who are currently on maternity leave.

The Government is also considering extending this right to women who have told their employer that they are pregnant. The Consultation is open and will run until 5 April 2019.

Claire Helling, Senior Solicitor 


Employment Status – the continuing saga

Many of you will no doubt be aware of the ongoing litigation concerning “employment status” which has in recent times become synonymous with large organisations such as Uber, Pimlico Plumbers and, more recently, the World Champion cyclist Jess Varnish case (which Laurence wrote about extensively in the January edition of this Update). In short, this complex area of law concerns whether an individual is classified as either an ‘employee’, a ‘worker’ or as ‘self-employed’. The importance in the distinction lies in the enhanced rights and protections received by both employees (such as the right not to be unfairly dismissed) and workers (e.g. holiday pay).

Click here for the full article

IR35 Changes 2020

From 6 April 2020, where an individual provides their personal service through an Intermediary to a client (whether directly or via an agency), the client, rather than the Intermediary, will be responsible for determining whether IR35 applies. If the client decides that IR35 applies, generally the person paying the Intermediary rather than the Intermediary will be responsible for deducting income tax and employee NICs and accounting for employer NICs. We will have more on this in future editions of The Update.

Louis Howlett, Solicitor 


New Year, New Fees?

In July 2013 Employment Tribunal fees were introduced, resulting in individuals paying up to £1,200 to have their cases heard. Individuals often being people who have just lost their job and have no form of income and perhaps having to use their hard-earned savings for the legal representation.

The introduction of fees led to a dramatic decline in the number of claims issued in the Tribunal of around 80%. A mere 18 months ago in July 2017, as a result of the Supreme Court’s decision, Tribunal fees were abolished and Claimants who had paid fees under the scheme since 2013 were entitled to a refund.

As expected, since the abolition of fees during a snapshot window between April to June 2018 there is a clear increase in the number of claims that have been issued. The number of single claims lodged increased by 165 per cent when compared to the same quarter, when fees were in force. In the same period the number of claims outstanding rose by 130 per cent.

Interestingly when reaching its decision, the Supreme Court did not rule that all Tribunal fees were unlawful, instead it ruled that the way in which they had been implemented was impinging access to justice. Following on from this, in late 2018 Richard Heaton, permanent secretary at the Ministry of Justice (MOJ) spoke with MPs about the potential to bring Tribunal fees back but in a way that did not charge those who could not afford to pay. He went on to say that whilst nothing is set in stone, he is confident that a fair system can be introduced which will ensure access to justice. The MOJ clearly never had to try and deal with the complexity of the previous remission system and are therefore not still suffering the scars which many of us bear.

However, the MOJ has confirmed that it may reintroduce fees for Employment Tribunal claims, saying it can do so in a ‘proportionate and progressive’ manner. For better or for worse, Brexit is dominating the current parliamentary agenda but as a result of the above I would expect to see Tribunal Fees back on the agenda at some point in the not too distant future.

Claire Helling, Senior Solicitor 


Written Statements of Employment Particulars – and why they matter?

The recent case of Stefanko and others v Maritime Hotel Ltd in the Employment Appeal Tribunal prompted me to write this short article to remind employers about the importance of issuing employees with (at the very least) with a ‘written statement of employment particulars’ within the legally required timeframe.

Click here for the full article

Darren Tibble, Partner


And Finally

With Christmas a safe distance past, is it possible to reflect more rationally upon the madness that occurred concerning ‘Father’ Christmas in the build-up to it? Warning: the following contains a Santa spoiler:

A Council in County Durham ruled Santa Claus must be a man after a row erupted when a woman offered to step into the role in the traditional Santa Claus tour around Newton Aycliffe. Clearly, being a very important festival (Santa on a flatbed truck each Christmas Eve, handing out sweets to children) it was unsurprising the suggestion caused huge emotion. Some local councillors complained of political correctness and a fear of disappointed children who expect a male voice bellowing “ho-ho-ho”. Yes, will someone think of the poor children – they will have enough to cope with when they find out that Santa is entirely fictional in any event. Thankfully the council clarified matters: “The Recreation Committee did not agree with the recommendation and confirmed by resolution that the role of Santa Claus should continue to be a male role.”

Meanwhile, The Beard Liberation Front (I promise I’m not making all this up) said “we have no issue with Mother Christmas, our concern is with the large number of silly false beards”. They advised children to “tug the beard of Santa. If it comes away, it’s fake”.

To answer my initial question… no, it’s too soon…

Daryl Cowan, Partner

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