Category Archives: Whistelblowing

Worker-Employee, what’s the difference?

Good question, you may say, since October 2016 the government has been carrying out an enquiry into whether the terms “Employee” and “Worker” are properly defined legally. Currently there are three possible categories; “employee”, “worker” and “self-employed/freelance”

“Workers” are entitled to certain employment rights, including, getting the National Minimum Wage protection against unlawful deductions from wages, the statutory minimum level of paid holiday, the statutory minimum length of rest breaks,  to not work more than 48 hours on average per week or to opt out of this right if they choose, protection against unlawful discrimination, protection for ‘Whistleblowing’  and to not be treated less favourably if they work part-time.

“Employees” have all the rights workers have plus the following; Statutory Sick Pay, statutory maternity, paternity, adoption and shared parental leave and pay (workers only get pay, not leave) minimum notice periods if their employment will be ending, protection against unfair dismissal the right to request flexible working , time off for emergencies and Statutory Redundancy Pay.

“Freelance or casual”, have none of the above rights as they are deemed to be “self-employed” and are only covered for general statutory duty of care, for their health and safety and, in some cases, protection against discrimination. Any rights and responsibilities are set out by the terms of whatever contract they can negotiate with their client.

Evidence put before the enquiry, however, suggests that two categories would improve the situation, “employed” and “unemployed”. “Employed” would mean that all workers have the same rights as employees to make things as simple as possible for businesses since tribunal and court judgments so far have not always managed to explain the differences clearly. This often creates situations where businesses look to minimise their legal obligations by trying to structure their relationships slotting people into the least burdensome category, like in the recent Uber case; what might start out as a clear self-employment relationship, in practice can turn into something quite different once the law gets involved.

We’ll have to wait and see what comes of all this but meanwhile if you need any help or advice on this or any other legal topic, give us a call.

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Filed under Arbitration, contract law, Dispute resolution, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal, Whistelblowing, Zero hours

What do they know?

Every time you buy something or get a new job the organisation gets some of your personal information. Companies often trawl through social media to help determine which applicant is right for them. This is all very well until you fail to get your dream job, or your credit rating turns out not as good as you’d hoped.

Well there’s some good news, you do have the right to obtain what personal information you think a company might hold on you; this is called a subject access request. You will need to consider carefully what information you are looking for as there are circumstances in which the organisation can refuse to divulge information. A subject access request is a specifically a request for personal data, so it must relate to you and you must be identifiable in any data provided. You cannot access anyone else’s personal data nor can you get a copy of the full document contains your data. You are entitled to more than just your personal data; you are entitled to a description of the data held about you and the purpose for which it is held.  Organisations often forget the latter, but this can be a useful source of information.

You have to apply in writing and be able to supply identification if asked and pay a small fee, usually £10 Some organisations may require you to fill in a specific form and although you don’t have to do this, it may slow down the response if you do not. The organisation has a 40-day deadline for them to comply with your request. Here are a few tips to help you:

  • Be realistic and design the scope of the subject access request with the above in mind.
  • Be helpful. Although the organisation cannot make you narrow your request, it does not have to comply until it has received the information that it reasonably requires in order to locate the information you are after. Always give clear information so that they can find the information.
  • Be careful what you ask for.  If you make a wide ranging request you might get a large amount of data to review which may not be at all relevant
  • Make sure you make the request to the right organisation.  You may need to make more than one request, especially when dealing with groups of companies.  If in doubt, it may be worthwhile making subject access requests to all the potential data controllers.
  • Make sure to keep records of all correspondence and the deadline date.

If you believe the organisation has withheld information, contact them and remind them of their obligations.   If they have withheld information from you, then they should tell you which exemption they are relying upon. If all else fails refer the matter to the Information Commissioner’s Office.

Remember if you need any help or advice on this or any other legal matter, give us a call.

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Filed under Company Law, Confidentiality, Dispute resolution, Employment Law, HR Issues, Insolvancy, Mediation, Unfair Dismissal, Whistelblowing

I need protecting! (part 2)

It is clear employers should take measures to protect their employees from violence, intimidation and bullying in the workplace. Hand in hand with the legislation mentioned in part 1 Employers should:

  • Prepare and disseminate a clear statement to all their staff and service users that harassment and violence will not be tolerated and will be treated as a disciplinary offence up to and including dismissal or, if appropriate, criminal action.
  • Define clearly what may constitute unacceptable behaviour by everyone involved including members of the public.
  • Create and then explain their overall policy with regards to preventing and dealing with the risks of harassment and violence, including any training that may be required.
  • Advise workers on the laws that apply to them at work and provide information on how to report harassment and violence, including the keeping of diaries of incidents, names of witnesses, etc.
  • It should also me made clear that false or malicious accusations will not be tolerated and may result in disciplinary action.
  • Explain how the policy will be implemented, reviewed and monitored.

It is important to ensure that all those involved will receive a fair and impartial hearing and that the dignity and privacy of all will be protected. Having a firm and clear policy in place will greatly reduce the risk to employers having to defend themselves against accusations of failing in their duty of care. It will also provide a deterrent to bullying and intimidation and a happier more confident workplace.

As always, if you need help and advice on this or any other legal matter, give us a call.

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Filed under Duty of care, Employment Law, HR Issues, Unfair Dismissal, Whistelblowing

Whistleblowing: The SBEEA and you Part 2.

This second instalment of what changes The Small Business, Enterprise and Employment Act involves changes to Whistleblowing in the workplace. The Government acknowledged there were inconsistencies in the approaches taken by the various “Prescribed persons” (which include HM Revenue and Customs, the Audit Commission, the Office of Communications (Ofcom),the Health and Safety Executive, the Financial Conduct Authority and the Prudential Regulation Authority, amongst others) regarding disclosures in general and whistleblowers’ concerns that their disclosures were not being investigated. Consequently the government relies on a new greater transparency through a reporting process to promote a more systematic process in general and to give whistleblowers more reassurance that action is being taken. This reporting process will combine with improvements being made to Employment Tribunals’ systems for referral of disclosures to relevant regulators.

The government has decided to make the report flexible and to give prescribed persons the option to include information that they believe would be helpful or relevant. The revised contents include:

  • An explanation of the functions, objectives and statutory powers of the body producing the report.
  • The number of concerns that have been raised with that prescribed person in any 12-month period.
  • The number of concerns that can be reasonably identified as “Whistleblowing”.
  • Commentary on what types of action were taken in response to Whistleblowing disclosures.
  • The number of disclosures where no further action was taken (unsubstantiated claims).
  • Commentary on how the information from whistleblowers has impacted on the prescribed person’s activity in their relevant sector.

Supplementary information that can be included includes:

  • The number of concerns raised where further action was taken and the reasons why this was.
  • The number of concerns that were referred to an alternative body.
  • Information on how employers in the sectors regulated responded to Whistleblowing in their organisations.

Annual Whistleblowing reports will be published on line, but can may or may not be included in annual or standalone reports. Currently these reports must be published before 1st October in the financial year following the year to which the report relates and The Department for Business, Innovation & Skills will collate all annual reports in a single place online.

That said, the legislation has been criticised as given that most protected disclosures are made to employers in the first place and as referral from employment tribunals will remain voluntary, it’s debatable whether the various bodies will have much detailed information to include in annual reports and so we may end up being none the wiser regarding the full picture of Whistleblowing activity within a particular regulated sector.

Next week we’ll look at Employment Tribunals and the National Minimum wage, but as always, if you need any help or advice, on this or any other topic, give us a call.

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Filed under Commercial law, Employment Law, HR Issues, Whistelblowing