Employment Law Newsletter Issue 4

New Employment Team Contacts
Jack Latham – Employment and Corporate Executive
Jack joined Hatchers in March 2015 with a background in public sector having worked for the Shrewsbury and Telford Hospital and Birmingham City Council.  He completed his BA in Law and Sociology at the University of Warwick in 2010 and his Legal Practice Course at BPP in Birmingham in 2013.  Jack currently supports both the Employment and Corporate Teams in a wide range of matters. He is due to commence his Training Contract with the firm in January 2016.

Georgia Wakeley – Trainee Solicitor
Georgia studied Law at Keele University before setting up a private client department at a small local firm alongside studying her vocational training course. Georgia joined Hatchers as a trainee solicitor in January 2015 and will qualify as a solicitor in July 2016. During the course of her training she will gain experience in a range of legal areas, in particular Dispute Resolution, Business and Employment Law and Private Client matters and is currently assisting on Employment and Business Law matters.

RECENT CASE LAW

Corporate Bodies Protected from Discrimination under Equality Act 2010 (EAT)

In the 2015 case of EAD Solicitors LLP and others v Abrams the Employment Appeals Tribunal has held that a limited company that was a member of an LLP could bring a claim alleging the LLP had directly discriminated against it based on the age of its principal shareholder and director.

Background
Mr Abrams was a member of EAD, a limited liability partnership (LLP).  For tax reasons, as he approached retirement, he set up a limited company of which he was the sole director and principal shareholder.  He withdrew from membership of the LLP and the limited company took his place.  It took the profit share that Mr Abrams would have received as a member, in return for which it undertook to supply the services of an appropriate fee-earner to the LLP.

Finding
The EAT rejected the LLP’s argument that only individuals are protected under the EqA 2010.  The EqA 2010 prevents discrimination by a person against another person  “Person” is defined in the Interpretation Act 1978 as including a limited company unless the statute indicates a contrary intention (which in this case the EqA 2010 did not).  Case law has established that an individual may complain of discriminatory treatment based on the protected characteristic of another person, and the same logic extends to a company complaining of discriminatory treatment based on an individual’s protected characteristic.

Practical Effect of the Finding
This is a hugely important development for discrimination law, not just in the field of employment, but in commercial and property law too, in relation to discrimination in the provision of goods, services or facilities, or the disposal of premises.
This case confirms that a company, LLP, charity, educational establishment, or other non-natural person may sue if it receives detrimental treatment based on the protected characteristics of individuals associated with it (whether they be its members, directors, employees, customers, pupils or otherwise).

Travelling to and from home each day may be considered as “working time” for peripatetic workers
In the Spanish case Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another, the European Court of Justice (ECJ) held that when a worker does not have a fixed place of work, travelling each day between their homes and the premises of the first and last customers is considered working time within the meaning of the Working Time Directive.

Background
Tyco install and maintain security systems across Spain, employing 75 technicians. The technicians are each assigned a region and travel to various appointments. Historically, the technicians work day started when they signed in at their regional office and collected their appointment list. The journey from the office to the first appointment was included in their working time.
When the company closed the regional offices, the technicians were sent their appointments through an application on their phones. The company began calculating the working time as when the technician arrived at their first appointment, which could be up to 100km away from their homes.

Finding
The Advocate General’s opinion was that the journey to and from the first appointment was at the disposal of the employer and an essential part of peripatetic workers’ days within the meaning of the Working Time Directive. It was not free time or a rest period.
The ECJ found that if the worker has no fixed place of work, travelling to and from their home each day was part of the working day as they would not have a ‘normal’ commute. If the working day started at the first appointment, the workers would not able to determine the distance between their homes and where they signed into work and could work a lesser amount of time despite travelling for a longer distance.

Practical Effect of the Finding
The decision may increase the amount of time a peripatetic worker is considered to be working, exceeding the average 48 hour work week applied by the Working Time Regulations 1998.
Employers may wish to consider the following:

• Obtain the worker’s agreement in writing to opt out of 48 hour work week;
• Review procedures to confirm that workers do not conduct personal business during their first and last journeys;
• Insert contractual provisions to ensure that workers do not move out of a certain geographical area (which may increase their work time further).

The ECJ rejected the UK Government’s argument that the decision would lead to increased costs for employers. Travel between the worker’s home and a place of work is not treated as time worked by National Minimum Wage Regulations.
Travel time and pay under the NMW is currently the subject of Employment Tribunal proceedings and we will update you on decisions made in this area.

DATE FOR YOUR DIARY:

The National Minimum Wage for all workers (and apprentices) increased with effect from 1 October 2015. For workers aged 21 and over there was an increase from £6.50 to £6.70 per hour.  From April 2016, the national living wage will be £7.20 per hour for workers aged 25 and older.

FINALLY…..

Hatchers’ Employment Team will be hosting another of its lunchtime HR Forums here at our office at Welsh Bridge, Shrewsbury during the coming 3 months. It is hoped that the forum will again provide an opportunity for practitioners to share their thoughts, ideas and concerns on a particular topic and suggested ways of handling matters.

The topic that will be subject of the first HR Forum meeting will be recent developments surrounding disciplinary hearings.  Places are limited and will be secured on a first come first served basis.

To reserve your place contact Sally Edwards on 01743 247693 or s.edwards@hatchers.co.uk following which you will be notified of date(s) on which the H R Forum will run.

HATCHERS EMPLOYMENT TEAM AREAS OF EXPERTISE

The Employment Team here at Hatchers can advise businesses and employees on all matters relating to employment law including:

• Contracts of Employment and Service Agreements
• Validity and enforceability of post termination restrictions
• Unlawful deductions from wages
• Workplace disputes
• Redundancy processes
• Unfair/wrongful dismissal
• Employment Tribunal proceedings
• Settlement Agreements
• Discrimination in the workplace
• The effect of a transfer to a new employer
• Business takeover
• Workplace training

Disclaimer:
The content of this Newsletter is descriptive of its subject matter only and must not be relied upon as providing specific legal advice.
The partners of Hatchers Solicitors LLP and the writer of this Newsletter will not, except as required by law, be liable for any loss or damage arising from reliance on any information provided in this Newsletter.
The content of this Newsletter is copyright and cannot be reproduced in any form without the prior written agreement of Hatchers Solicitors LLP.