The Insider Issue Seven


Don’t miss out! This month’s edition is giving you the chance to win British Superbike hospitality tickets inside...

WHY THE UBER CASE HAS EMPLOYMENT LAWYERS GLUED Cab-hailing app Uber is facing a legal challenge from drivers who say the firm is acting unlawfully by not offering holiday and sick pay. An employment tribunal has started hearing evidence in what has been called the ‘UK employment law case of the year’ – a grand title but just about befitting of this test case. work themselves? Can someone tell them at any time what to do, where to carry out the work or when and how to do it? Can they work a set amount of hours?

Answering yes to any of these might be more indicative of an employee or worker status, whereas someone is more likely to be classed as self employed if they provide the main items of equipment they need to do their job, agree to do a job for a fixed price regardless of how long the job may take or if they regularly work for a number of different people. Companies often fall into the trap of considering someone to be self employed just because the ‘contractor’ is responsible for their own tax and NI – this on its own is not enough to prove there is no employment relationship. It’s essential to ensure that you have the correct documentation reflecting the genuine position between you and the contractor, and that the circumstances and facts of their work for you in practice do not form an employment relationship. Naturally Uber are represented by a QC who on day 1 of the hearing has started to cross examine the drivers bringing this case and suggest that Mr Farrar (one of the drivers) was free to choose the jobs he did and frequently cancelled jobs that Uber sent to him. Mr Farrar, who is being backed by the GMB union, appears to have vehemently denied this and is adamant that he did the number of jobs his ‘employer’ recommended but that his net earnings fell well below the National Minimum Wage. We are unlikely to know the outcome for some weeks

Employment status has long been the greyest area of employment law. Is someone self employed or are they really an employee, or a worker? This tribunal decision will have far reaching implications, and a ruling for the drivers will open the flood gates for other similar claims against companies operating this type of arrangement. A decision in favour of Uber will cement their arrangement with drivers and no doubt given a boost to other companies seeking to operate a similar business model. This is why the Uber case has employment lawyers glued. The drivers are claiming that they are workers because the terms and conditions of the arrangement means that Uber has such a degree of control over them that they cannot be said to be self employed, and therefore they are entitled to national minimum wage, holiday pay etc. It should be noted they are not arguing that they are employees, who would have increased rights above those of a worker. Uber will seek to argue that they simply put the drivers in touch with customers but the drivers are their own boss. They will say that they are simply a technology company who don’t provide services themselves – so the nature of that will be analysed too. Even where both parties believe and want to have a self employed relationship, an Employment Tribunal and HMRC can see it differently. Such is the difficulty with employment status claims. They require scrutiny of all the facts and circumstances and questions need to be asked, including: Do they have to do the

We wait with baited breath!

For more information please contact our employment law team on 0161 785 2000

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diligence’ defence can be met by suppliers and by extension themselves. These standards, which are certified by accredited certification bodies, include BRC and other house standards and codes of practise (some accredited). Depending on the size of operation, customer types and needs these are available to meet most sizes of operation and budgets. These standards are based on a HACCP assessment with supporting procedures and monitoring practises. Supporting this is a quality management system based around the concept of the ISO 9001 standard. HACCP is fairly well known with your local EHO driving the basic legal requirements. One cause of certification non conformity is lack of adequate training by the HACCP team / leader. If you have to write the documents go for level three HACCP qualifications. If you are operating / managing the system at least level two. Review is a legal need and as above a complaint should trigger an internal review of your systems following the investigation. Be mindful that the audit process can be best described as ‘death by a thousand cuts’, lots of what you may describe as stupid issues can drop you from a good A grade to C; examples include poor cleaning management, poor maintenance of the premises and plant, poor supervision of operators (dress, jewellery, hair nets). Not counting documentation that does not meet the standard each example will earn a non-conformity which will soon add up. See GMP and internal audits above. If you are new to the audit process be advised that familiarity with the systems, training, implementation supervision and a robust corrective action system (test & adjust / correct issues as identified) can take a while to bed in. Serious management commitment is needed to drive this forward. For more information call 01252 728 300 to talk to one of our team today.

The cost of a product recall can run into the millions – but what are the processes that can be put in place to prevent this? The best place to start would be looking at the main reasons for recall; most will be due to foreign bodies notably small dimension plastics or similar that escaped the traditional detection systems which a baker will have in place (sieves, metal detection etc.) Product quality issues follow next with poor baking, poor colour finish, and mould growth on bread products which have been packed before the articles had cooled sufficiently to prevent condensation from forming. If you have not already conducted your obligatory HACCP analysis and recognised the pre-requisite and critical controls / critical limits required please do so, or at least ensure you have these under review following each complaint you receive. You should also conduct internal audits of your systems (documents and procedures) and rigorous GMP audits to identify potential foreign bodies (glass and brittle materials to mention one); allied with effective senior management commitment to weed out any issues that are identified. A fault reporting system backed by senior managers to encourage operators to identify and report issues is an effective means of keeping on top of problems as and when they arise. Much of the industry is mechanized to a greater extent with weight checks aimed at pre baked rawmaterials which through experience / custom and practise producers have recognised as the minimum weights needed to get the finished product to its desired weight / size at the end of the baking / cooling process. Most seen use a mix and match of raw weight checks (by percentage produced) and final quality measurements to ensure specification is met using single point scales or possibly in line check weigher. Customer requirements have driven the food industry towards third party certification to ensure that the concept of a ‘due

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• On average 337 people a week called in sick during February leading to it being labelled ‘the cruellest month’.

• Absentee rates on Mondays are almost DOUBLE that of Fridays (1832 compared to 1046) across the first half of the year.

My employees are struggling in the heat, what can I do to help? Do I have to send them home? CONSULTANT CORNER. . . No, you don’t have to send your employees home unless there is a health and safety concern. If the heat is really unbearable you should do a risk assessment and if there is a risk you may wish to consider sending home or finding an alternative. You may find that investing in a water cooler, fans or air conditioning is a more economical solution than losing a day’s productivity. Ensure that your employees have enough breaks and make sure they are drinking enough, particularly if they’re working outside or in kitchens/confined spaces where the temperatures can reach even higher levels. It might be an option to give your employees an extended lunch break during the hottest part of the day. You might want to consider being flexible on the workplace dress code when temperatures get really high, however make sure your employees know they are still dressing for the office not the beach. It’s important to maintain a professional appearance but allowing employees to wear open toe shoes, if it’s safe to do so in your workplace environment, and relaxing the requirements for ties, jackets etc can all help them cope when the mercury rises. A fun way to keep employees engaged during hot weather is ice cream! A cool treat during the day will let employees know you value them and appreciate their hard work in extreme temperatures. Call 0161 785 2000 to speak to one of our experts today and find out how to keep your business one step ahead of any changes.

• National Sickie Day (1st Feb) lived up to its name with the highest number of people absent from work.

New statistics released by ELAS Business Support show the absentee rate for the first half of this year - and they make for interesting reading. The average absentee rate was calculated by taking the total daily absence rate for each month and dividing it by the number of weeks in the month. January, March and May each had five weeks and, therefore, a higher overall absence rate but the weekly numbers paint a different picture. Hunter S Thompson famously described it as ‘the cruellest month’ and it appears that UK workers agree; February had the highest average rate of absenteeism across the first half of the year. An average of 337 people a week called in sick during February, compared to 318 in March, 314 in June, 294 in January, 283 in May and 282 in April. February’s numbers show it might be renamed Fed-up-uary with the statistics also showing a huge spike in the absentee rate on Mondays. The consistent absentee numbers throughout the rest of the week indicate people might be taking advantage of a long weekend. The Boomtown Rats don’t like Mondays and, it appears, UK workers don’t either. These new figures show that Mondays are consistently blue with the absentee rate almost DOUBLE that of Fridays (1832 compared to 1046) across the first half of the year. 21.4% of all employees surveyed called in sick on a Monday compared with just 12.2% on Fridays. May had two bank holidays so, unsurprisingly, was the only month where Monday did not have the highest number of absences. National Sickie Day (1st Feb) lived up to its name with the highest number of people (95) absent from work, closely followed by Mon 22nd Feb (92). 86 people were absent on 16th May and 6th June while a total of 80 people called out from work on 18th January (Blue Monday). April shows up as the healthiest month with the lowest number of absences recorded across the board. David Southall is a consultant at ELAS specialising in employment law. He says: “Employers should ensure they have robust return to work procedures in place, part of which should be to discuss in detail the reason why an employee was absent. Should a health issue be suggested, the employer could follow up by seeking to obtain a medical report; this will reveal whether or not the employee is properly addressing any underlying medical condition. Notes from all return to work meetings should be retained in case they need to be referred back to at future meetings with the same employee.” Call our expert team today on 0161 785 2000 to find out more about Occupational Health services and Absence Assist.

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This months edition is quite special as we are giving our clients the chance to win 2 British Superbike hospitality tickets for Donington on September 18th 2016.. . To be in with a chance of winning, click here and enter your details. GOOD LUCK!!

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From a s l i t t l e to a s much suppor t a s you need . . .

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