GMB and Uber sign a historic collective bargaining agreement to benefit 70,000 UK Uber drivers, which may be the first step to a fairer working life for millions of people.
Uber have signed a ground-breaking deal with the GMB union to allow it to represent its 70,000 UK drivers, under a collective bargaining agreement.
Courts have ruled in GMB’s favour four times over the last five years, each time finding that the UK’s 70,000 Uber drivers are workers – and not independent self-employed contractors, as the company had tried to argue. The final ruling took place at the Supreme Court in February 2021, and since then Uber have guaranteed payment of a National Living Wage, holiday pay and a pension.
The deal announced today means that Uber will be the first in the industry to ensure that its drivers also have full union representation, and means that the union can negotiate with Uber over pay and conditions on behalf of all drivers – known as “collective bargaining.” We believe that this is good news not just for Uber drivers themselves, but for all workers in the gig economy.
Why was the Uber court case important?
In employment law, a person can either be an employee, a worker, or a self-employed contractor. Employees have the most rights, self-employed contractors the least, and workers fall somewhere in between. Whilst workers do not have protection from unfair dismissal, they do have any other rights – such as paid holiday, minimum wage and rest breaks – which self-employed contractors do not.
In exchange for fewer protections against unfair treatment, those who are genuinely self-employed have more freedom in how they go about their work – for example, often they can choose to send a substitute to carry out work in their place. Employees and workers on the other hand are subject to much tighter controls.
So, if a person is arguing that they are entitled to the rights of a worker, they have to show that they have worker status – something that has become harder and harder to do over the past few years. The problem arises when companies try to exploit their workforce by falsely labelling them as self-employed, whilst at the same time exerting the same control over them as they would if they were a worker or even an employee – essentially the worst of both worlds from the worker’s point of view. Sadly, the emergence of the gig economy – whilst bringing welcome flexibility for many – has seen a huge increase in this damaging and unfair practice.
However, the outcome of the Uber case marks a reversal in this trend. It involved 25 drivers who Uber said were self-employed, and therefore not entitled to rights like paid holiday or rest breaks, but who the court decided were actually workers because of the control Uber was able to exert over their daily working lives.
Significantly, the judges even went so far as to change the legal test for deciding whether someone is a worker or a self-employed contractor. Previously the courts had looked first at what the contract said, before examining the reality of the relationship. Now, the focus will be on the law itself – does the person in question meet the definition of a worker as set down in statute?
The judges made it clear that this change was necessary to protect vulnerable workers, who can often be open to exploitation by unscrupulous employers seeking to avoid having to provide certain
rights, whilst at the same time denying autonomy. Hopefully, the tide has now turned against this unfair and exploitative practice.
What does the GMB’s deal with Uber mean for workers?
GMB union reps will now have the right to formally negotiate with Uber managers about pay, as well as other terms and conditions. Generally, where workplaces have a recognition agreement with a union, this leads to better terms and conditions across the board.
The fact that Uber have now signed this deal with the GMB may signal an acceptance by the company that the unfair practice of sham self-employment is on its way out. It is to be hoped that this trend of acceptance will extend to other companies in the gig economy. Uber has today confirmed that they will also support drivers if they choose to sign up as a member of the GMB, and union representatives will have a presence in Uber’s driver support hubs to help drive up membership.
Announcing the Agreement, Mick Rix, National Officer, GMB, said:
“This ground-breaking deal between GMB and Uber could be the first step to a fairer working life for millions of people. History has been made. This agreement shows gig economy companies don’t have to be a wild west on the untamed frontier of employment rights. When tech private hire companies and unions work together like this, everyone benefits – bringing dignified, secure employment back to the world of work. We now call on all other operators to follow suit.”
Jamie Hanley, Partner at Pattinson & Brewer, the lawyers who regularly work for the GMB Union, said:
“This agreement is fantastic news for the UK’s 70,000 Uber drivers, and for all workers right across the economy, particularly those who continue to experience uncertainty in the gig economy.
We are proud to stand shoulder to shoulder with the GMB and to represent thousands of their members every year. The GMB has shown real leadership in tackling the difficult legal questions surrounding the status of those who work for businesses like Uber.
It remains hugely disappointing that the leadership shown by the GMB has not been matched by Government – from who we have had only deafening silence.
In case the Government’s missing Employment Bill is languishing on its ‘too difficult to get our head round’ pile, they should consider the chaos caused by their own silence. It has taken years, through the Courts, to dispel Uber’s claim that they are a mosaic of tens of thousands of small businesses, with each driver being self-employed.
We call on Government to now urgently bring forward an Employment Bill to introduce a universal employment status of ‘worker’ that must apply to all people in employment bar those who are genuinely self-employed, and to extend to those people the full suite of employment rights,
available to them from when they begin their employment.”
ENDS
Media enquiries to Jamie Hanley 07712839949 / jhanley@pattinsonbrewer.co.uk
The Government has decided to introduce a system of fees in Employment Tribunals. A consultation exercise asking for views on different options has just concluded. Paul Statham of Pattinson & Brewer solicitors who co-chaired a committee of the Employment Lawyers Association summarises their response. (more…)
Proposed Law Commission Employment Tribunal Reforms
The Law Commission has published its report on Employment Law Hearing Structures.
The Commission was tasked with reviewing the Employment Tribunal system and in particular, the overlap of jurisdiction between it and the civil courts in some claims.
It will come as no surprise to practitioners that the Commission concluded that the employment tribunal system is not working as effectively or efficiently as it should be. It has therefore produced a report containing 23 recommendations, which it envisaged would enhance workers’ abilities to enforce their employment rights, and streamline the system to avoid having to issue proceedings in two different courts.
The Commission’s recommendations include:?
– Extending the time limit for bringing all types of employment tribunal claims from three to six months, including a recommendation that, where (as in unfair dismissal cases) it was “not reasonably practicable” to bring the claim in time, employment tribunals should have the discretion to extend time limits where they consider it “just and equitable” to do so (including in equal pay claims);
– Giving employment tribunals jurisdiction to determine breach of contract claims relating to workers other than employees (whilst retaining the exclusion for genuinely self-employed independent contractors),
– Giving employment tribunals jurisdiction to determine employees’ breach of contract claims whilst they remain employed (rather than having to bring such claims in the county court as is the case now);
– Increasing the £25,000 limit on contractual jurisdiction in employment tribunals to £100,000 (with the same limit applying to employers’ counterclaims);
– Giving the civil courts the power to transfer equal pay claims brought in that jurisdiction to an employment tribunal;
– Extending the jurisdiction of employment tribunals so that they can hear complaints by workers that they are working hours in excess of the maximum working time limits, and make declarations to that effect;
– The creation of a “fast track” enforcement system for enforcing judgements in the Tribunal system (to operate within the existing enforcement jurisdiction); and
– An “Employment and Equalities List” of High Court judges within sufficient expertise to hear employment and non-employment discrimination-related claims brought in that jurisdiction (for example, complaints about discrimination in the provision of goods and services).
These recommendations are not revolutionary – the Commission’s remit precluded it from considering any major restructure. However, in our view they are sensible and pragmatic proposals to make the best of the current structure. As such, we agree with the Commission that, if implemented, these proposals would enhance employees’ abilities to enforce their existing employment rights within that structure. If nothing else, the extension of time limits should result in significantly more claimants achieving justice than at present.
You can find the link to the official summary of the report here: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2020/04/6.6527_LC_ELHS-Summary-Report_FINAL_210420_WEB1.pdf and the recommendations are helpfully listed on page 22 onwards.
Donna Clancy
29 April 2020
The advice contained in this article is correct as of 22nd April 2020. The situation with Coronavirus is developing rapidly, so please do check for further blog posts for the latest updates.
Pattinson and Brewer have reviewed the government’s attempts to provide financial support to self-employed during the Coronavirus. This has come in the form of the Self-Employment Income Support Scheme (SEISS). Those who weren’t eligible for the Job Retention Scheme (JRS), because they do not pay tax via PAYE, might be eligible for SEISS. This covers the UK’s self-employed workforce, which comprises 15% of the working population. The scheme is also likely to cover those who are workers for employment law purposes but self-employed for tax purposes.
The scheme, however, has been criticised for leaving gaps in support, particularly for casual workers and self-employed creative workers in the entertainment industry. Today’s blog will explore these issues in further detail.
Eligibility for Self-Employment Income Support Scheme
1. The scheme is available for self-employed individuals or members of a partnership.
2. Trading profits from self-employment must be no more than £50,000.
The test for meeting this £50,000 threshold can met in two ways. First, the training profits in the 2018-19 tax year can be used. Second, it can be based on the average trading profits between 2016 and 2019. In this second way, if the average profits are less than £50,000, the occasions that the trading profits have exceed this limit for a year will not matter. For both methods, it’s necessary for the trading profits to constitute more than half of the Claimant’s total taxable income.
3. The individual must have submitted an income tax self-assessment return for the tax year 2018-19, and must have traded in the tax year 2019-20. Self-assessment tax returns for the tax year 2018-19 must be filed by 23 April 2020.
4. The individual must be trading when an application for a grant under this scheme is made or would have been trading, except for the Coronavirus outbreak, and intends to continue trading in 2020-21.
5. The individual must be able to show that they have lost trading income or partnership income due to the Coronavirus. There is no amount specified for such lost income to trigger a right to claim the grant.
How do I apply?
HMRC aims to contact businesses and self-employed individuals who they consider may be eligible by mid May 2020. It will invite those individuals to apply for the grant. It is not necessary for individuals to contact HMRC to make the claim in the first place, although it’s likely that there will be an opportunity for someone to make a claim if they consider they have been missed off wrongly by HMRC.
How much can be claimed and when?
There is a taxable grant for 80% of the average trading from tax years 2016 to 2019. HMRC will calculate this by adding the total trading profits for the three tax years (where applicable) then divide this by three (where applicable) and use this amount to calculate the monthly amount. The grant will cover a maximum of £2,500 per month for three months.
The scheme is intended to last for three months, but this will perhaps be extended in line with the JRS. Unfortunately, the scheme will only become operative in June 2020 and no financial relief is being employed to self-employed people or businesses operating in this way.
What are the problems with the scheme?
It is naturally quite difficult to identify the extent to which trading profit must have been affected by the Coronavirus. The scheme doesn’t suggest that the HMRC grant may take into account the extent to which profit losses have suffered. Could the grant be reduced if an individual’s profit losses are, for example, £700?. We await further guidance from the government.
There are also potentially huge gaps in the SEISS’s coverage. For example, the Institute for Fiscal Studies has estimated that around 2 million people with self-employment income fall within the scheme. Our experience working with unions that serve creative workers tells us that the entertainment industry has been severely impact. Countless theatres and other entertainment venues ‘went dark’, coupled with film and TV productions shutting down nationwide. The statistic mentioned above also includes freelancers who operate via limited companies, where their incomes goes and they pay themselves a salary from. In other words, those who pay themselves primarily via dividends coupled with a smaller portion through PAYE, are very unlikely to be included. Some individuals have chosen to trade through a limited company for particular reasons, such as tax, whilst others will have been required by their clients or the industry they work in.
The requirement that trading profits must be no more than £50,000 effectively acts a salary gap. Therefore, those who earned, on average, more than £50,000 over their previous tax returns from 2018/19 will miss out entirely. This will no doubt exclude a considerable number of businesses from the scheme.
Those who are beginning life as self-employed workers also face difficulties under the scheme. As the SEISS is based on the 2018/2019 tax return, this excludes many people who become self-employed after April 2019 and would otherwise be ready to file their first statement of earnings. Some might be eligible but have only traded for a few months of the 2018/2019 tax year, but have since made much more profit, will only be partially covered. Similarly, a key trade union for creative workers, Equity, has a significant number of young members. In fact, the average age of their membership is 27. What about new entrants and drama school graduates who haven’t completed their first tax return yet?
What about those with less than half of their income from self-employment? The Institute for Fiscal studies estimates this number to be around 1.3 million people who will fall outside of the SEISS due to this rule. The scheme is clearly designed for those who are majority self-employed, but it unfortunately excludes those who have self-employment as a secondary form of income coupled with their main job. This will also exclude those who are building their businesses up while they remain employed.
Pattinson & Brewer’s specialist employment team
We have particular experience dealing with employment law advice exclusively to claimants. Our special relationship with the trade union movement means that we have particular insight into the working lives of employees and the self-employed alike.
Please check our website for further blogs on these matters as things progress.
You can also follow us on Twitter/Facebook using the handle @PB_Employment
Coronavirus National Crisis – Furlough Leave Updates
The advice given in this article is correct as of 21st April 2020. The situation with Coronavirus is developing rapidly, so please look out for further blog posts for the latest updates.
We have been eagerly awaiting updates on the government’s furlough scheme. On 15th April 2020, the Treasury issued a Direction to HMRC. This contained authority and instructions for making payments under the Coronavirus Job Retention Scheme. Although amendments are theoretically possible, it is likely to be the definitive guidance on how the Job Retention Scheme works. The furlough scheme portal also opened yesterday and the scheme itself has been extended until the end of June.
Pattinson & Brewer’s specialist employment team have highlighted the main aspects of the scheme.
Furlough Leave – the basics
If your employer is unable to operate or hasn’t got work for you to do because of the coronavirus, you could agree with your employer to be kept on the payroll on 80% of your regular wages up to a monthly cap of £2,500. This is paid by the government through the Coronavirus Job Retention Scheme, whereby you’ll be ‘on furlough’.
Your employer will still directly pay you and your tax from your income. However, you must be careful not to work during this leave. The scheme’s payment portal is due to set up on 20 April.
Furlough Leave – Treasury Direction on 15th April 2020
1. The Furlough Leave Deadline
The original furlough eligibility deadline stated that individuals had to be employed before 28 February 2020. However, the government has now extended this date to 19 March 2020, which is the day before the scheme was announced.
In yesterday’s statement, the Treasury said:
‘Employers can claim for furloughed employees that were employed and on their PAYE payroll on or before 19 March 2020. This means that the employee must have been notified to HMRC through an RTI submission notifying payment in respect of that employee on or before 19 March 2020.’
The change will be serve as good news across the country as unemployment figures rise. However, the deadline change isn’t without its shortcomings. It’s likely that you need to have been paid by your employer by 19 March. This is because employees need to have made a payroll submission about employees to HMRC on our before 19 March.
It is predicted that over 200,000 further employees will benefit from the scheme as a result of the change.
2. Furlough Leave is not limited to employees who would otherwise have been made redundant
The Direction now makes it clear that Furlough Leave is not limited to employees who would otherwise be made redundant. It clarifies that furlough applies to anyone who ‘by reason of circumstances as a result of coronavirus or coronavirus disease’.
3. Company directors
Company directors who are furloughed can only undertake work to fulfil a duty or other obligation arising from an Act of Parliament concerning the filing of company accounts or provision of other information relating to the administration of the director’s company. This is clearly a very narrowly defined provision.
4. Written notification is required to furlough employees
The Direction now states that employer and employee must have agreed in writing that the employee will cease all work. Previous guidance only required notification, which could mean that significant numbers of employees who have already been furloughed may not fall within the meaning of the scheme.
5. ‘Pay’ and salaries under Furlough Leave
The amount of salary for the employee must disregard anything which is not “regular salary or wages”. This includes disregarding any performance related bonus or discretionary payments (including tips), any conditional payments and any non-financial benefits.
Employers cannot claim for a salary which is ‘conditional on any matter’. This, for example, may exclude any salary payments which the parties have agreed are conditional on the scheme paying out.
6. Earnings which the employer ‘reasonably expects to be paid’
The Direction states that the employer can claim for earnings which it ‘reasonably expects to be paid’ to the employee. This suggests that it includes deferred earnings, deferred until the Scheme pays out (provided they are not conditional on the Scheme paying out).
7. Annual leave
The Direction was unfortunately silent on the matter of annual leave. However, the government updated its guidance on 17th April to clarify the matter.
Furlough Leave and annual leave – updated government guidance on 17th April 2020
The government’s Employee’s Guidance now states that it is possible to take annual leave whilst on furlough.
Employees will continue to accrue holiday as part of their employment contract. If the employee gets more than the statutory amount (5.6 weeks), then they can ask their employer to agree to reduce that holiday to the statutory amount for the furlough period. Any reductions like these will need to be agreed to in the furlough agreement letter.
Employees can also take holiday whilst on furlough and should be paid as normal. Where their rate of pay varies, it should be calculated on the basis of the average pay they received in the previous 52 working weeks. The method of calculating this changed on 6 April 2020, so please be aware of this. The rule before was a calculation based on the preceding 12 weeks. Holiday pay should be based on ‘normal remuneration’ to meet legal standards. This can include overtime, commission, and standby payments.
The government also confirmed that employers can make a grant for an annual leave furlough pay in the normal fashion. This would be capped at 80% / £2,500 per month and would count as ‘topping up’ for the annual leave days by paying the difference between that and their normal pay to your employees.
Employers can compel employees to take annual leave whilst on furlough. However, employers must give twice as much notice as the time being taken off. For example, an employee is entitled to 4 days’ notice if the employer wants him/her to take 2 days of annual leave.
It is possible for employers to refuse to allow annual leave once the lockdown lifts and employees return to work. However, there must be a business reason for doing so. Further, employers can also give notice to an employee to cancel any annual leave they have already booked. If this is decided, employers must give the employee at least the same number of days’ notice as the original holiday request (so 5 days’ leave needs 5 days’ notice to cancel).
What about pre-booked holidays an employee wants to cancel? The employer can still tell its employee to take the time off. To change the holiday, the employee must agree this with the employer.
Employees who usually work bank holidays can agree that it’s included in the grant payment and not pay any extra to the employee. However, if the employee takes the bank holiday as leave, then the employer would either have to top up the employee’s pay to their usual holiday pay, or give them a day of holiday in lieu. Employers who agree for their employees to take the bank holiday as part of their annual leave entitlement should pay them their usual holiday pay rate.
Annual leave can be rolled into the next leave year, but only if the contract allows it. However, the government announced on 27th March 2020 that workers who have not taken all their statutory annual leave entitlement (up to 4 weeks) due to the Coronavirus, will now be able to carry it over into the next 2 leave years. This applies where it’s not ‘reasonably practicable’ for them to take some, or all, of the holiday pay they are entitled to due to the Coronavirus. Please note that there are some minor exceptions to this rule, such as sea-farers or trainee directors, which should be borne in mind.
How can Pattinson & Brewer help?
We receive numerous enquiries regarding the furlough scheme through our free legal advice line. Please follow our link below for more information:
Call us free on 0800 307 7660, and our team will get back to you to see if we can help.
You can also follow us on Twitter/Facebook using the handle @PB_Employment.
Coronavirus National Crisis – Updated Furlough Leave HMRC Guidance
The government’s Coronavirus Job Retention Scheme poses many questions about how it applies in particular scenarios. Thankfully, HRMC have provided further guidance for employers.
The full guidance is captured below:
Employees – https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme
Employers – https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
This article will provide you with a quick refresher of the basics of Furlough and run you through the vital parts of the guidance.
What is the Coronavirus Job Retention Scheme?
If your employer is unable to operate or hasn’t got work for you to do because of the coronavirus, you could both agree to keep you on the payroll on 80% of your regular wages up to a monthly cap of £2,500. This is paid by the government through the Coronavirus Job Retention Scheme, whereby you’ll be ‘on furlough’.
Your employer will still directly pay you and your tax from your income. However, you must be careful not to work during this leave. The government predicts that the scheme will be set up by the end of April.
What are the key parts of revised HMRC guidance?
- Eligible employers – any UK business with a UK payroll can apply through the scheme, provided they have:
. Created and started a PAYE payroll scheme on or before 29 February 2020;
. Enrolled for PAYE online (this is new); and
. A UK bank account
- Eligible workers:
. Workers who ceased to be on their payrolls after 28 February 2020 can be re-employed and furloughed. The reason the worker has left doesn’t matter – they don’t have to have been made redundant but the decision as to whether to re-employ is ultimately the employer’s. However, employers should be cautious when selecting those whom they re-employ to avoid potentially discriminatory outcomes.
. Salaried LLP members, company directors, agency workers (including those employed by umbrella companies) and ‘Limb (b) Workers’, who are paid via PAYE are all covered. So are apprentices and foreign nationals.
. Employees who are shielding, or who can’t work due to caring responsibilities, are covered, as are employees that started unpaid leave after 28 February 2020
. To be eligible for scheme’s grant, employers must confirm in writing to furloughed employees that they wish to furlough them and that this is kept on record for five years
- Rules during the furlough leave:
. Furloughed employees must not be allowed to perform any work for their employer (or a linked or associated company) other than training.
. However, furloughed employees are permitted to work for other employers
. Employers are to consider allocating any critical business tasks to staff that are not furloughed
. Employees with more than one job can be furloughed by all or any of their employers and the pay cap applied to each employer individually
. Employees can be furloughed multiple times, as long as the furlough leave period is a minimum of 3 weeks (thus allowing employers to rotate staff on and off furlough)
- How much can employers claim through the scheme?
. Employers can claim for 80% of pay up to a monthly cap of £2,500. Please note that the guidance specifies that these figures are before tax.
. Where an employee’s pay varies, ‘pay’ means ‘regular’ contractual pay, which includes wages, ‘compulsory commission’ (most likely meaning contractual past commission earned) and past overtime
. Variable pay does not include discretionary bonuses, discretionary commission, tips, non-cash payments or benefits in kind (e.g. gym membership)
. The lower salary on salary sacrifice is the amount taken into account under the scheme. However, HMRC have confirmed that employees can revert to their pre-salary sacrificed salary if they wish
. Grants under the scheme cannot be used to cover redundancy payments
- What uncertainties remain?
What do ‘statutory obligations’ actually cover for company directors?
The guidance states that directors should only exercise ‘statutory obligations’ to the extent that they do no more than ‘would reasonably be judged necessary for that purpose’. This doesn’t cover work generating commercial revenue or providing services on behalf of their company. Questions immediately arise from this. For example, would it allow a Board Director to manage and oversee in redundancy exercises that the company deemed necessary to ensure solvency? The guidance also states that furloughed directors may sometimes be undertaking duties without falling outside of the scope of the furlough scheme. We hope to see further guidance on these matters so as to prevent difficulties in the application of the scheme.
Are employers who TUPE into a business after 28 February covered?
TUPE also throws up some difficult grey areas. The guidance states that staff transferred under TUPE after 28 February who might have been eligible fail to meet the scheme’s eligibility requirements. The guidance confirms that employers can take back staff who have ceased to work for them (for whatever reason). The old employer and new employer who want their TUPE deal to go ahead (but need to furlough staff) could therefore achieve this with some creativity and coordination. However, we hope that future guidance will provide clarity on these matters so as to avoid needless complications.
The position on Statutory Sick Pay
We know that those who are receiving Statutory Sick Pay (whether they’re actually sick or self-isolating) cannot be furloughed. What if an employee who is sick during furlough reverts back to sick leave and therefore Statutory Sick Pay and their employer’s sick pay scheme (if relevant)? Does this mean that both furlough and Statutory Sick Pay can run at the same time? Would transferring to sick leave break the minimum furlough period and thus impact on an employer’s ability to reclaim for other salary payments in said period? Again, further guidance is awaited.
The regularity of ‘pay’ under the scheme
There is no guidance on how regular a payment must be to satisfy ‘pay’ under the scheme. Nor does it clarify whether a fluctuating allowance can be paid at an average calculated against the 2019/2020 tax year.
Annual leave whilst on Furlough Leave
The guidance is also silent on whether annual leave can actually be taken during furlough leave. This therefore poses questions.
Can an employer make an employee take holiday whilst on furlough and then use the grant to claim back the holiday pay? Under current employment law, it is clear that an employer can generally require some holiday to be taken at a time specified by the employer. Further, recent Acas guidance, (last reviewed on 2 April 2020), continues to use furlough as a reason why a worker may be unable to take annual leave. Further clarification on the matter.
Maternity Pay whilst on Furlough Leave
Does an employer’s claim for a grant under the scheme to cover enhanced maternity pay effectively end maternity leave? This could put Statutory Maternity Pay entitlement at risk when furlough leave ends.
Pattinson & Brewer’s employment law services
Thank you for taking the time to read our summary of the latest guidance on furlough leave as of 7 April 2020. Please be alert to the possibility that further guidance could change the above.
We’re also currently offering free legal advice to working people during the Coronavirus National Crisis. Please follow our link below for more information:
Call us free on our 24/7 helpline on 0800 307 7660, and our team will get back to you to see if we can help.
Pattinson & Brewer Solicitors – Employment Law Factsheet
Coronavirus National Crisis – Pregnancy and Maternity Rights
The Government has been clear from the start of the current Coronavirus outbreak that it considers pregnant women should be classed as part of the ‘vulnerable’ category. What does this mean and what are your rights if you are a pregnant employee? What if you are currently off work/due to return to work following a period of maternity leave?
I am pregnant – what are my rights?
Public Health England issued some guidance (here) shortly after the Government’s announcement on social distancing, advising that for a period of 12 weeks any pregnant woman should be considered part of the ‘vulnerable’ category and are therefore strongly advised to observe the social distancing measures, including working from home where possible.
The Royal College of Obstetricians and Gynaecologists released some further material (here) advising that whilst the risk to pregnant women of Covid-19 is unknown, a cautious approach is recommended, particularly for women who are 28 weeks pregnant or more.
Therefore, any pregnant woman (particularly those 28 weeks pregnant or more) currently employed in the UK should be following the Government’s social distancing measures which includes working from home where possible.
What if I cannot work from home?
As per current health and safety legislation, all pregnant women should undergo a risk assessment in the workplace, to identify any hazards and ensure a safe working environment. Especially since the outbreak of the Coronavirus, it is more important than ever that employers are following health and safety legislation to ensure the safety of their pregnant employees in the workplace.
As mentioned above, pregnant women should now be observing social distancing measures – which includes working from home where possible. If you cannot work from home, you must be allowed to work in a safe environment (i.e. away from the risk of catching Coronavirus) which includes the social distancing measures (working at least 2 metres away from colleagues, allowing increased hand washing and provision of sanitisers etc). If, following a risk assessment, your employer cannot ensure your work environment is safe and incorporates social distancing measures, you are entitled to be suspended on medical grounds with full pay (section 16(3) Health and Safety at Work Act 1974).
If you are currently pregnant and still in the workplace and you are not social distancing, we strongly advise you speak to your employer about how to ensure your safety at work.
I am on maternity leave/due to return to work following maternity leave – what are my rights?
This is an uncertain time for many employers and employees. If you are currently absent from work due to a period of maternity leave, your rights in respect of maternity leave and pay remain the same.
If you qualify, and are already in receipt of Statutory Maternity Pay (SMP) your employer should continue to pay this. If your employer is struggling to make these payments they can request advance funding from HMRC or alternatively, if your employer has had to close owing to the outbreak, HMRC can pay these monies directly to you.
The government’s Coronavirus Job Retention Scheme also applies to women on maternity leave. Should an employer experience a downturn in work, meaning it may consider having to make redundancies, it may instead choose to ‘furlough’ its employees. This scheme guarantees up to 80% of wages, up to a cap of £2,500 (for more information on furlough please see our previous blog posts).
Women who are on maternity leave can request to be furloughed, but careful consideration needs to be given as to how this change in employment status would impact on your entitlement to take maternity leave. Whilst the furlough scheme could arguably offer a high rate of income than SMP, the only way you can receive remuneration via furlough is to serve notice to end your maternity leave and essentially return to work early.
This may be an option for those women nearing the end of their maternity leave, however if you chose to end your maternity leave early, once the furlough scheme has come to an end you will be expected to return to the workplace immediately and cannot then opt to ‘use’ the remainder of your maternity leave. You may be able to consider shared parental leave at this point, however there are also complex rules governing how this can be taken between you and your partner.
At this time, employers should be maintaining good lines of communication with all employees, especially those who are absent from the workplace due to maternity leave. If you have not yet received any updates from your employer about the current situation, we would recommend trying to contact them as soon as possible.
If you require advice in relation to the above please contact our free helpline on: 0800 3077660.
Follow us on Twitter: @PB_Employment
Pattinson & Brewer Solicitors
Free Legal Advice to help working people during the Coronavirus National Crisis
I know many of you are worried about the impact of the Coronavirus lock-down on your job and finances. To try and help, our Employment Rights lawyers will offer free legal advice to anyone who believes they have been treated unfairly by their employer.
Our firm is one of the longest established in the UK – we represent thousands of working people every year. Emily Bradshaw (@emilybrdshw) our Head of Employment Rights is leading the team of lawyers available to help you.
Call us free on our 24/7 helpline on 08003077660, and one of Emily’s team will get back to you to see if we can help.
You may have a potential claim if:
- You have recently been made redundant by your employer without them having given consideration to offering you furlough leave.
- Your employer has made at least 20 employees in your workplace redundant without complying with their obligations to consult with you.
- You have been dismissed or subjected to a detriment for exercising your right to request dependant or parental leave.
- You are an agency, casual, or zero hours worker who has been refused SSP having been prevented from attending work because they have symptoms or have been identified as vulnerable by the Government.
- Your employer has stopped paying or reduced your wages without your agreement.
If you feel one of these situations applies to you, or if you feel you have been treated unfairly in another way, then please contact us for free legal advice.
In addition, here is some helpful information about your current rights at work.
- All employees should be allowed to work from home where possible, and if they are from a vulnerable group, display symptoms, or are living with someone who displays symptoms, then they should not be attending work, even if they would usually be required to do so.
- Those individuals who are unable to attend work due to displaying symptoms, living with someone who displays symptoms or being directed as vulnerable by the Government, should all qualify for sick pay, either company sick pay or SSP.
- Statutory sick pay is £94.25 and applies to those who earn at least £118 per week before tax. In normal circumstances, sick pay starts on the fourth consecutive day that you are unable to work. However, this week it was announced that employees will receive statutory sick pay from the first day that they are sick or self-isolate because of Coronavirus. Many organisations offer their staff sick pay which goes beyond the statutory minimum. Speak to your employer.
- Agency workers, casual worker and workers on zero hours contracts are likely to be entitled to receive at least statutory sick pay.
- Employees may be able to arrange to take time off as holiday or unpaid leave (but employers do not have to agree to this).
- Dependents leave is a right an employee has to take a reasonable amount of time off to care for dependants in an emergency. The amount of time off must be “reasonable” – for example, you might take 2 days off to start with, and if more time is needed, you can book holiday or request parental leave (see below). There is no statutory right to pay for dependant leave. However, some employers might offer pay depending on the contract or workplace policy. If a dependant such as a partner, child or relative in the same household gets Coronavirus symptoms, you should receive Statutory Sick Pay (SSP) as a minimum for this time.
- Parents who have been with their employer for a year or more also have a right to request parental leave. Parental leave is unpaid and limited to 18 weeks for each child. A week must be taken at a time and a maximum of 4 weeks can be taken a year in respect of each child. Whilst an employee takes parental leave their employment rights will remain protected, including their annual leave entitlement and right to return to work. Usually 21 days’ notice must be given in order to take parental leave but employers may be willing to waive this in the current circumstances.
If you need help in relation to any of the above please contact our free 24/7 helpline on 08003077660
I hope we will be able to help you. Take care and stay safe.
Jamie Hanley
Partner, Head of Client Relations
Find us on Twitter: @PB_Employment / @TradeUnionLaw / @jamiehanley / @emilybrdshw
Pattinson & Brewer Solicitors
Coronavirus National Crisis – Rules regarding Annual Leave / Holiday entitlement
Coronavirus National Crisis – Rules on carrying over annual leave to be relaxed to allow workers to carry it over to the next 2 leave years
The Government has announced it is allowing workers to carry over up to four weeks of annual leave into the next two leave years. The specialist employment department at Pattinson & Brewer have set out below what you need to know.
What is the current law on carrying over holiday?
Currently, almost all workers are entitled to 28 days’ holiday including bank holidays each year. However, the law does not guarantee the right to carry unused leave over into the next holiday year. This means that employers are free to decide whether you can carry over any untaken leave.
It’s also important to note a distinction between EU law and UK law. Whereas EU law protects four weeks’ (20 days for a full-time worker) paid annual leave, UK law provide an 1.6 additional weeks’ (28 days for a full-time worker), as mentioned above. Please bear this distinction in mind when we discuss the legal changes below.
How is the law changing?
The COVID-19 situation has clearly prompted the government increase businesses’ flexibility to efficiently manage their workforce, while protecting workers’ right to paid holiday.
The change will allow workers to carry over EU holiday into the next two leave years, where it is not reasonably practicable for them to take some, or all, of the holiday they are entitled to due to COVID-19.
Please note that this change only applies to the four weeks’ protected under EU law, rather than the additional 1.6 weeks’ statutory leave under UK law (although it can be carried over for up to a year by agreement under existing law).
Protecting workers’ right to paid holiday
These changes will hopefully provide vital reassurance to workers in regards their right to paid holiday during these troubled times. They also aim to ensure that employers affected by COVID-19 have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in some of Britain’s key industries, such as food and healthcare.
A Government press release has also stated that these changes will apply to agency workers, those who work irregular hours, and workers on zero-hours contracts.
Pattinson & Brewer’s specialist employment team
Our team provide specialist employment law advice exclusively to claimants. Our passion for protecting employment rights and our years of experience in doing so means that we are able to keep you updated with key the changes impacting employees as they occur.
If you require advice in relation to the above or any other employment matter, please contact our free helpline on 01904 528 310.
Follow us on Twitter: @PB_Employment
Pattinson & Brewer Solicitors
Coronavirus National Crisis – Furlough Leave Updates
As of 27 March 2020, the Government has communicated further details in respect of the Coronavirus Job Retention Scheme. The update provides more clarity around the issues of what remuneration qualifies as ‘wages’, how long furlough lasts and what the position is if an employee is self-isolating.
Which organisations can furlough employees?
The scheme is open to all UK employers that had a PAYE scheme in place on 28 February 2020. This includes charities, recruitment agencies and public authorities; however, whilst the scheme is open to employer’s in the public sector, whilst public sector employees are still being paid wages in the normal way it is not expected that they will be furloughed.
Crucially, the scheme covers agency workers, those on a zero hours contract and if an employee was made redundant after 28 February 2020, their employer can choose to re-hire them and furlough them instead.
How are ‘wages’ calculated?
Employers can reclaim up to 80% of wage costs up to a cap of £2,500 per month plus the associated employer NICs and minimum auto-enrolment pension contributions on that wage. Important to note is that fees, commissions and bonuses are not included.
Full and part-time employees
Your employer can use your actual salary before tax as at 28 February to calculate the 80%, or simply apply up to the £2,500 cap.
Employees with fluctuating pay i.e. zero hours contracts
If you have been employed for more than 12 months prior to 28 February employers can use either:
- the same month’s earning from the previous year
- average monthly earnings from the 2019-20 tax year
If you have been employed for less than a year, your employer can use your average monthly earnings since you started working for them.
If you only started in February 2020 your employer can pro-rata your earnings so far to calculate your wage.
National Minimum Wage
Individuals are only entitled to National Minimum Wage (NMW) for the hours they work. Therefore, if an employee is placed on furlough leave and the 80% calculation drops them below the NMW they will still only receive the 80% pay as they are not considered working. If there are any periods of training, this can be paid at NMW.
Additional points
Employers must furlough their employees for a minimum of three consecutive weeks. It seems that an employer could choose to rotate its staff from being on furlough leave and off, but it must ensure that each employee is to take furlough leave in a block of three weeks.
An employee can undertake voluntary work or training, but an employee must not provide services or make money for their employer.
Employees who are off sick or self-isolating cannot be furloughed, however once they are no longer sick or isolating they can be considered for furlough leave. Employees who are shielding themselves as per government guidance (those who are in the high risk/vulnerable category) can be placed on furlough leave. Please see our previous blog [Coronavirus National Crisis – Employee Rights] about your rights should you need to take some time off work due to the outbreak.
If you require advice in relation to the above please contact our free helpline on: 01904 528 310.
Follow us on Twitter/Facebook using the handle @PB_Employment