The wonders of employment law
Posted: July 13th, 2018, 1:31 pm
Everyone involved in the care sector has been anxiously waiting the outcome of a Court of Appeal case regarding a care worker, Clare Tomlinson-Blake, who worked for Mencap and whose job involved a sleeping in role.
She was paid a flat rate of £29.05 plus one hour’s pay at £6.70 for an overnight shift of between 10pm and 7am. If she was required to be awake for more than one hour she would receive extra pay.
However, she (or more accurately her union, Unison) had taken the view that she should be paid an hourly minimum wage for her shift, even though she was asleep. The Employment Tribunal and then the Employment Appeal Tribunal agreed.
The result of this decision for Mencap and other charities was potentially devastating. In a case appealed simultaneously with this one the care worker was claiming £240,000 in wage arrears. The overall cost of the decision to the care sector was put at £400m, which would have resulted in many care organisations going bankrupt.
Fortunately, the Court of Appeal allowed the appeals and reversed the EAT decision, though I've no doubt it will now head to the Supreme Court.
But this illustrates firstly the ludicrous complexity of employment law (nearly all of which is in place as a result of EU directives) and secondly the devastating consequences that a different interpretation of the law can provide for employers. It has now become like tax law - so complicated that no ordinary person can be expected to understand it - and for the same reasons, namely that the Government keeps passing new laws to implement EU directives without properly assessing their impact on existing law.
An idea of just how complex the law has become in just this very small area of employment law can be seen from the CoA judgment - https://s3.eu-west-2.amazonaws.com/hric ... -Blake.pdf (It can also be seen from the number of QC's involved what a profitable area employment law can be for lawyers!)
One side effect of this complexity and unpredictability is that employers, particularly small ones without HR departments or access to specialist advisors, are increasingly reluctant to take on employees simply because whatever they agree with the employee can very easily be - and often is - overruled by the Tribunal / Court system. This is not just my opinion – I have had many employer clients who have expressed this view to me over the years.
When an area of law becomes this complex and unpredictable it no longer serves its purpose. It places ordinary people at risk of breaking the law and suffering severe financial consequences when by any normal standard they have done absolutely nothing wrong.
Irrespective of one's personal views of Brexit it should at least provide an opportunity to have a wholesale review of employment law and put together a hugely simplified and coherent framework of law that ordinary people might have a chance of understanding.
But I'm not holding my breath.
She was paid a flat rate of £29.05 plus one hour’s pay at £6.70 for an overnight shift of between 10pm and 7am. If she was required to be awake for more than one hour she would receive extra pay.
However, she (or more accurately her union, Unison) had taken the view that she should be paid an hourly minimum wage for her shift, even though she was asleep. The Employment Tribunal and then the Employment Appeal Tribunal agreed.
The result of this decision for Mencap and other charities was potentially devastating. In a case appealed simultaneously with this one the care worker was claiming £240,000 in wage arrears. The overall cost of the decision to the care sector was put at £400m, which would have resulted in many care organisations going bankrupt.
Fortunately, the Court of Appeal allowed the appeals and reversed the EAT decision, though I've no doubt it will now head to the Supreme Court.
But this illustrates firstly the ludicrous complexity of employment law (nearly all of which is in place as a result of EU directives) and secondly the devastating consequences that a different interpretation of the law can provide for employers. It has now become like tax law - so complicated that no ordinary person can be expected to understand it - and for the same reasons, namely that the Government keeps passing new laws to implement EU directives without properly assessing their impact on existing law.
An idea of just how complex the law has become in just this very small area of employment law can be seen from the CoA judgment - https://s3.eu-west-2.amazonaws.com/hric ... -Blake.pdf (It can also be seen from the number of QC's involved what a profitable area employment law can be for lawyers!)
One side effect of this complexity and unpredictability is that employers, particularly small ones without HR departments or access to specialist advisors, are increasingly reluctant to take on employees simply because whatever they agree with the employee can very easily be - and often is - overruled by the Tribunal / Court system. This is not just my opinion – I have had many employer clients who have expressed this view to me over the years.
When an area of law becomes this complex and unpredictable it no longer serves its purpose. It places ordinary people at risk of breaking the law and suffering severe financial consequences when by any normal standard they have done absolutely nothing wrong.
Irrespective of one's personal views of Brexit it should at least provide an opportunity to have a wholesale review of employment law and put together a hugely simplified and coherent framework of law that ordinary people might have a chance of understanding.
But I'm not holding my breath.