Employees Working Off Site - Liability under Provision and Use of Work Equipment Regulations 1998?

The House of Lord have issued their decision in Smith v Northamptonshire County Council - a case concerning an employee injured on a crumbling wooden ramp while wheeling a wheelchair user (Mrs Cotter) from her home to the minibus driven by the employee who also worked for the Council as a carer. The ramp in question had been installed by the NHS some 10 years earlier and had a latent defect in it. It had been inspected by the Council but not for the purposes of these Regulations. The House of Lords held that unless the equipment in question, ie the ramp, was actually in the "control" of the employer then there was no liability. In this case the Council did not install the ramp, did not have any responsibility maintain it and had no control over it's maintenance or use. For that reason, the House of Lords decided in favour of the council because it did not have the necessary level of control over the ramp and so were not liable under the Regulations.

So, from this point of view, businesses can relax because they will not be held liable for equipment used by their employees whilst working off site, which is not within their "control".

Their Lordships also considered the principle behind the Regulations which is that they are there to promote employees health & safety and not to give employees a right to claim compensation.

Age Discrimination & Court of Appeal Landmark Ruling

A Court of Appeal Judgment delivered yesterday, 14 May 2009, confirms that using length of service as one of the list of criteria for redundancy selection is not age discrimination. The effect of that judgment is that it will help to protect older workers who, if made redundant, would find it more difficult to find another job, than their younger co-workers. The details are as follows from a press release from Unite the Union:

"Unite the Union, Britain's biggest union succeeded in securing a landmark judgment from the Court of Appeal against Rolls Royce in one of the first cases on age discrimination to be considered by the higher courts.

The Court of Appeal handed down its landmark judgment upholding Unite's resisting an appeal by Rolls Royce against the decision of the High Court which declared that the use of length of service as one of a number of redundancy selection criteria was not age discrimination.

Rolls Royce operated a redundancy selection procedure in agreement with Unite, which included length of service as one of six criteria with one point awarded for each year of service. Despite objections by Unite, Rolls Royce made an application to the High Court asking for a Declaration that the use of length of service as one of the redundancy selection criteria discriminated against younger members of the workforce who had less opportunity to accrue length of service and was therefore unlawful under the Age Regulations.

Rolls Royce's application was disputed by Unite on the basis that length of service was an objective and generally accurate measure of the loyalty and expertise of employees. Unite further asserted that the older and longer serving members of the workforce required a degree of additional protection in a redundancy selection exercise since they were likely to find it more difficult to secure alternative employment if made redundant. Finally, Unite pointed out that the collectively agreed criteria, including length of service, had the jointly agreed objectives of the achievement of redundancies in a fair, transparent and peaceable manner.

The High Court rejected Rolls Royce's application in October 2008 and Rolls Royce appealed to the Court of Appeal. The Court of Appeal rejection of Rolls Royce's appeal makes it clear that it is lawful for employers to use length of service as one of a number of criteria when selecting employees for redundancy.

Unite's joint general secretary, Derek Simpson said: "We are delighted with this decision. The ruling sets a precedent , where other factors are equal, for protecting older workers from the effects of redundancy. It has always been clear to Unite that loyalty seen in length of service should be recognised when an employer takes the drastic step of making redundancy dismissals. We look forward to using this decision to help defend our members' rights in many other companies as well as Rolls Royce."

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

National Minimum Wage & Tips, Gratuities etc

BERR has just issued the Government's Response to its Consultation on Service Charges, Tips, Gratuities and Cover Charges. The National Minimum Wage Act 1998 came into force in 1999 and since then it has been legal to use service charges, tips, gratuities and cover charges towards payment of the national minimum wage when payment is made through the employer's payroll.

The responses to the consultation came from a broad spectrum of interested parties: from individual customers, to business and trade unions and bodies. Unsurprisingly, those on the employee and customer side support the change in the law while business and trade bodies suggest delaying the change until the economic climate improves. However, the majority of responses support the change. So on that basis, the government, having taken evidence from stakeholdes and having carried out an impact assessment, believes the time is now right to change the law to create a level playing field in wages paid by employers. The government's response states that it will also create equity for employees, plus create transparency for the customers leaving tips in good faith for the employee so that they will know how their money is to be used.

The government states it is working with the Hospitality, Leisure and Service Sectors to ensure there will be no unnecessary additional administrative burdens on employers.

The change in the law will come into effect on 1 October 2009. (The current National Minimum Wage is £5.73 per hour.)

How will it affect your business? Will it cost you more or are you already paying tips in addition to the national minimum wage?

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.

48 Hour Working Opt Out

The failure of MEPs and EU governments to agree on a draft Directive amending the 48 hour individual opt out and ‘on call’ time rules means the opt out stays in force probably for many years and without fresh restrictions (on how and when it can be signed and on annual renewal). This is good news as it applies to around 120,000 hospitality employees.

Employees can still be asked to “opt out” and so work more than 48 hours a week, but continue to have the right to reject this request or change their mind on no more than three months’ written notice, without suffering any adverse treatment as a result.

This will be good news for employers because the "opt-out" is used widely throughout the UK. It will help businesses in the current economic climate and alleviate additional burden on employers and allow employees’ the choice to work extra hours to earn more money.

The downside to this though is that it means that the proposals to give employees extra protection by preventing unscrupulous employers exploiting the opt-out system, have been shelved, for the time being at least.

Disclaimer: the contents of this blog are not intended form the basis of legal advice. Independent legal advice should be taken from your own solicitor for all cases.