Policy News Journal - 2017-18

The Claimant alleged that the risk assessment did not comply with the requirements of EU Directive 92/85/EEC covering measures to improve health and safety for pregnant and breastfeeding workers, and so breached the Equal Treatment Directive. The CJEU held that if a breastfeeding mother can show that a risk assessment was defective or not done, it gives rise to a prima facie case of discrimination. It would always be open to an employer to show that, in fact, the required risk assessment had been done in line with the relevant directive.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.

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TUPE transfer: new security contractor takes over equipment but not staff 9 November 2017

This case is about a company who won a contract for security services but refused to accept that 17 staff employed by the previous contractor had transferred to its employment.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.

Can there be a transfer of an undertaking where a new contractor takes over security services from a previous contractor without accepting the employees assigned to that work, if the new contractor takes over equipment essential to delivering those services? Yes, held the CJEU in Securitas v ICTS Portugal . Securitas won a contract for security services at a port in the Azores, refusing to accept that 17 staff employed by the previous contractor ICTS had transferred to its employment. The Portuguese Supreme Court referred to the Court of Justice of the European Union (CJEU) questions as to the application of the Acquired Rights Directive to the Portuguese Labour Code on transfers. The CJEU noted that where an activity is essentially based on manpower, when a new provider does not take on employees, an economic entity won't retain its identity so there would be no transfer, but if an economic entity is based essentially on equipment, not taking on employees won't stop a transfer occurring. The national court must decide whether ICTS had transferred to Securitas equipment, or tangible or intangible assets for the purpose of security activities. If so, there would have been a transfer. The Portuguese Supreme Court referred questions to the CJEU as to the application of the Acquired Rights Directive in this situation.

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Deliveroo riders take first step in legal challenge for employment rights 10 November 2017

Deliveroo riders claim that they are entitled to rights including the national minimum wage and holiday pay; law firm Leigh Day has confirmed that they have issued legal claims on behalf of 45 riders to the Employment Tribunal (ET).

The case was to be heard for the first time in the ET for a preliminary hearing on Thursday 2 November 2017, to be held in private where an Employment Judge was to set out the timetable for the case as it moves forward. This includes setting a date for a hearing to decide whether riders are employees or workers, or whether they are self- employed contractors as Deliveroo claims. According to an employment rights expert at Leigh Day, the riders they are representing in this claim work shifts and are paid by the hour. Deliveroo has apparently claimed that they can log in and work whenever they want. The contentious issue is that these riders are controlled, managed and disciplined by Deliveroo and that they do not carry out their own delivery businesses.

Leigh Day also represents Uber drivers in their fight for workers’ rights and they expect many more Deliveroo riders to join the legal case as riders fight for employment rights from the popular food delivery company.

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The Chartered Institute of Payroll Professionals

Policy News Journal

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