Remove ads

Introducing the LemonFools Personal Finance Calculators

The wonders of employment law

including wills and probate
Clitheroekid
Lemon Quarter
Posts: 1224
Joined: November 6th, 2016, 9:58 pm
Has thanked: 414 times
Been thanked: 769 times

The wonders of employment law

#152181

Postby Clitheroekid » 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.

kiloran
Lemon Quarter
Posts: 1167
Joined: November 4th, 2016, 9:24 am
Has thanked: 156 times
Been thanked: 444 times

Re: The wonders of employment law

#152228

Postby kiloran » July 13th, 2018, 4:53 pm

I don't think such problems are unique to employment or tax law, or even caused by the EU. In my working life, there were documented codes of practice for all manner of things, and over time they became ever more complex because someone would point out an exceptional situation which needed to be covered, or someone would try to interpret the rules in a rather "inventive" manner. So the rules would be "enhanced" and that then resulted in further unintended consequences.

I'm sure that everyone would love to have simplified tax rules, etc, but as long as there are those who try to semi-legally circumvent the rules, it is inevitable that the rules become over-complicated over time. I guess the legal profession have to apply solid logic when applying the rules, and are not allowed to apply commonsense interpretations.

--kiloran

Spet0789
Lemon Slice
Posts: 320
Joined: June 21st, 2017, 12:02 am
Been thanked: 12 times

Re: The wonders of employment law

#152231

Postby Spet0789 » July 13th, 2018, 5:34 pm

I agree completely that employment law has become overcomplicated.

That’s said it’s utterly ridiculous to blame this on the EU. You do yourself no favours with this Area 51 nonsense.

The fault lies with our brave legislators, who have introduced a minimum wage. Nothing to do with the EU.

Lootman
Lemon Quarter
Posts: 3405
Joined: November 4th, 2016, 3:58 pm
Been thanked: 503 times

Re: The wonders of employment law

#152234

Postby Lootman » July 13th, 2018, 6:10 pm

kiloran wrote:I'm sure that everyone would love to have simplified tax rules, etc, but as long as there are those who try to semi-legally circumvent the rules, it is inevitable that the rules become over-complicated over time. I guess the legal profession have to apply solid logic when applying the rules, and are not allowed to apply commonsense interpretations.

No, I blame the government for complex tax laws. Government do not just use the tax code to collect revenue, but also to modify and incentivise behaviours. This immediately makes the tax code much more complicated.

A flat tax with no exemptions, allowances or deductions could probably have all its rules written on a couple of pages.

But I agree with you that this over-ever-complexification is universal. Two simple examples from my life in the last week:

1) I go to buy a sandwich and my transaction is held up because my claim to have brought my own bag, thereby avoiding a surcharge of a massive five pence, is subject to a "own bag compliance officer inspection" or some such.

2) I show up at Euston with my "super off peak" ticket to Birmingham only to discover it must be used before 13:40. It is 13:30 when I realise this and there is only one train that leaves before 13:40 - the 13.34 to Tring via Watford Junction. So I take it and, by changing at Watford, Milton Keynes and Northamption, get to Brum at 16:30 on my "super" ticket.

But why, why, why? The world has gone nuts. Or I am getting old? Answers on a postcode please.

Re the topic, getting paid to sleep is my dream job. Sign me up - I'd come out of retirement for that gig, and no other.

Lootman
Lemon Quarter
Posts: 3405
Joined: November 4th, 2016, 3:58 pm
Been thanked: 503 times

Re: The wonders of employment law

#152236

Postby Lootman » July 13th, 2018, 6:18 pm

johnhemming wrote:Whereas I have some sympathy with you on the question of bag usage, I disagree with the suggestion that having off peak and super off peak tickets is a bad idea.

I understand and, with respect to CK's original point, my issue with the train fare rules is that they have become insanely complex so that most normal reasonable people (and also myself) can no longer understand them.

ap8889
Lemon Quarter
Posts: 1053
Joined: November 4th, 2016, 10:55 am
Has thanked: 100 times
Been thanked: 209 times

Re: The wonders of employment law

#152255

Postby ap8889 » July 13th, 2018, 8:30 pm

I have long felt that the fairest way to deal with employment law is to have employment "at will". If both employee and employer can terminate employment at will then the workplace would I think be a happier and more productive place. It would force both employees and employers to up their game or to part company. It would permit more
labour mobility and encourage employers to take more risks on giving someone looking for a job a start.

didds
Lemon Quarter
Posts: 1431
Joined: November 4th, 2016, 12:04 pm
Has thanked: 475 times
Been thanked: 163 times

Re: The wonders of employment law

#152270

Postby didds » July 13th, 2018, 10:57 pm

... it would also give employers the opportunity to employ anybody in the knowledge that if tomorrow they find somebody that will work for 10p an hour less they will sack the first and employ the second.

And the reverse of course - an employee will leave at the drop of a hat for 10p and hour more.

An extreme example of course .

didds

vrdiver
Lemon Quarter
Posts: 1225
Joined: November 5th, 2016, 2:22 am
Has thanked: 173 times
Been thanked: 359 times

Re: The wonders of employment law

#152273

Postby vrdiver » July 13th, 2018, 11:34 pm

Clitheroekid wrote: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.

With the aftermath of Brexit I suspect there will be very little capacity to do any review or tidying up of our laws for quite some time. Even when there is capacity, it's not been something we're very good at; too many vested interests to maintain the status quo, rather than a clean start using the previous experience to formulate something that would be considered "simple but fair".

In the specific case of being required to be present overnight (albeit asleep but available if required) why on earth was this left to an adversarial court case to decide? Surely this is a common enough situation that the law should have already considered what "minimum wage" meant when applied to people in live-in or sleep-in jobs like this?

VRD


Return to “Legal Issues (Practical)”

Who is online

Users browsing this forum: No registered users and 1 guest