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The wonders of employment law

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Clitheroekid
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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
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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
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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
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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
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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
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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
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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
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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

melonfool
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Re: The wonders of employment law

#152645

Postby melonfool » July 16th, 2018, 11:47 am

vrdiver wrote: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


The problem is conflicting laws.

1) the Working Time Regulations - EU law, define 'what is working hours', but with regard to rest breaks etc
2) min wage law - UK law, stating that all 'work' must be paid at min [hourly] wage.

So, it's not the EU specifically that has caused this problem.

And even if the WTR were held to mean that time sleeping (and I am surprised this keeps coming up, it's been through the ECJ at least once already) is 'work', then the min wage law could be amended to add a 'sleeping wage' or something of, say, £1 an hour. Why not? You're not exactly at liberty are you - you can't decide at 2am to go for a walk because you can't sleep, if you get a call from a friend locked out of their house, you can't go and help them, if you suddenly decide to see the midnight release of the new Star Wars, you can't. To my mind, if you are not at liberty to do as you wish, you are 'working', albeit that work may not be very onerous.

Mel

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Re: The wonders of employment law

#152665

Postby vrdiver » July 16th, 2018, 2:00 pm

melonfool wrote:And even if the WTR were held to mean that time sleeping (and I am surprised this keeps coming up, it's been through the ECJ at least once already) is 'work', then the min wage law could be amended to add a 'sleeping wage' or something of, say, £1 an hour. Why not? You're not exactly at liberty are you - you can't decide at 2am to go for a walk because you can't sleep, if you get a call from a friend locked out of their house, you can't go and help them, if you suddenly decide to see the midnight release of the new Star Wars, you can't. To my mind, if you are not at liberty to do as you wish, you are 'working', albeit that work may not be very onerous.

Mel

Makes sense to me: an employee or service provider should be compensated for their commitment. BUT, it still doesn't answer the question of why the law (and I appreciate your response re the two different regulations) hasn't already addressed the issue. I'm not suggesting it's an EU issue (although I'm sure this problem occurs in the various countries of the EU, so perhaps the EU should take a look!) just surprised that it's a gap in the system.

VRD

melonfool
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Re: The wonders of employment law

#152674

Postby melonfool » July 16th, 2018, 2:23 pm

Well, as I said, I'm surprised it's come up again as I thought it was already settled by the ECJ years ago, but it may be (I've not read the judgment) that this case was brought as min wage legislation and the previous ones as working time (hence the ECJ I guess).

But, if this is addressing min wage legislation, which is UK law, then the supreme court is the final arbiter. The ECJ can only rule on EU law. And, if they have already ruled re the working time issue there is no reason for them to go poking about in a country's own laws, is there? I'm not sure how many EU countries even have a minimum wage.

Unless there is a human rights angle where it could go tot eh ECtHR, but I can't see that being feasible.

Mel

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Re: The wonders of employment law

#152678

Postby Lootman » July 16th, 2018, 2:29 pm

melonfool wrote:And even if the WTR were held to mean that time sleeping (and I am surprised this keeps coming up, it's been through the ECJ at least once already) is 'work', then the min wage law could be amended to add a 'sleeping wage' or something of, say, £1 an hour. Why not? You're not exactly at liberty are you - you can't decide at 2am to go for a walk because you can't sleep, if you get a call from a friend locked out of their house, you can't go and help them, if you suddenly decide to see the midnight release of the new Star Wars, you can't. To my mind, if you are not at liberty to do as you wish, you are 'working', albeit that work may not be very onerous.

That's a common sense approach. If I am not free to go about my normal business then I should be paid as if I were working even if, as it happens, I am not working.

But I used to have to do "on call" shifts where I was not at work but, if I were rang or beeped, then I'd have to drop everything and go into the office. As such my freedom was greatly impinged, and yet I was paid only an "on call" rate for the shift. If I actually went in I was paid for that time, but the minimum wage certainly did not apply to the hours when I was on call, despite me being "not at liberty to do as I wish".

melonfool
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Re: The wonders of employment law

#152681

Postby melonfool » July 16th, 2018, 2:34 pm

Lootman wrote:
melonfool wrote:And even if the WTR were held to mean that time sleeping (and I am surprised this keeps coming up, it's been through the ECJ at least once already) is 'work', then the min wage law could be amended to add a 'sleeping wage' or something of, say, £1 an hour. Why not? You're not exactly at liberty are you - you can't decide at 2am to go for a walk because you can't sleep, if you get a call from a friend locked out of their house, you can't go and help them, if you suddenly decide to see the midnight release of the new Star Wars, you can't. To my mind, if you are not at liberty to do as you wish, you are 'working', albeit that work may not be very onerous.

That's a common sense approach. If I am not free to go about my normal business then I should be paid as if I were working even if, as it happens, I am not working.

But I used to have to do "on call" shifts where I was not at work but, if I were rang or beeped, then I'd have to drop everything and go into the office. As such my freedom was greatly impinged, and yet I was paid only an "on call" rate for the shift. If I actually went in I was paid for that time, but the minimum wage certainly did not apply to the hours when I was on call, despite me being "not at liberty to do as I wish".


Exactly, you just got a set sum. As does the woman who brought the case:

"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."

(many on-call systems have a one hour min, so you get paid for one hour no matter what but you can't claim your hourly rate until you have done that one hour. Sometimes it is cumulative, sometimes it's 'one hour r one call out' so if the first call is only 10 mins you can claim from the start of the next call, but with some you have to add them together until you get to 60 mins - there are downsides to both!).

This all sounds fine to me. And, clearly, the Court of Appeal too!

Mel


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