Katharine deals with all aspects of Employment Law but specialises in providing non contentious employment advice and compliance to both small business ventures and larger companies. In particular, she is experienced in giving advice to companies concerning starting out in industry and reorganisation and can draft a wide range of company documentation in accordance with the individual needs of the business. Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

Handling loss of ‘the fear’ within employment (whilst celebrating National Love Your Pet Day)

This is one of those blog posts with unusual beginnings and which, albeit hopefully in a good way, may be read differently by different people. In a nice roundabout way, albeit slightly coincidentally, we’re also celebrating today being ‘Love Your Pet Day’ through the dog-related theme!

Let’s just clarify what ‘the fear’ is before continuing.  Basically, ‘the fear’ is a largely 1990s-based phenomenon centring round a particular episode of FRIENDS in which Rachel loses the desire to continue in their current job but, without her acting to resign, lacks the determination to make
the decision to get another job.  In this way, ‘the fear’ is similar to the fear of failure that drives you to revise hard for exams or the fear of not being fit enough for a half-marathon which pushes you to go for a run even when you don’t feel like it and, obviously, losing ‘the fear’ to apply full efforts within a job can make a noticeable difference.

Now, naturally, all jobs and employers are different. You can work in the same role at two different places and have completely different experiences to the same extent that you can have two different job titles within the same employer and have polar opposite enjoyment levels. However, for the sake of the rest of this blog, let’s take a really general (and vague) view of this tricky situation for employees and employers alike.

How a 3,000km run through New Zealand affects employers – agreeing sabbaticals

Firstly, let’s get it out of the way, I’m a complete bookworm. When I’m not at work (reading documents, emails, cases, you name it), I’m reading my Kindle during my lunch hour and on my commutes to and from work. I’m that guy that regularly averages 2-3 books per week and, frankly, my wife has long accepted that she shares my attention with ‘that Kindle’.

Why is this relevant? Well, recently, I’ve started reading a fascinating book called ‘The Pants of Perspective’ by Anna McNuff. Summarised briefly, this book highlights the talk of a woman who decided she needed a break from her regular, office-based job, so arranged a 6-month sabbatical to run 3,000km from the south to north of New Zealand with a backpack and small tent.

Rather surprisingly, my main double-take whilst reading the opening part of the book wasn’t the idea to run 3,000km across a huge country through sub-zero temperatures into 40’c degree heat but, rather, that she persuaded her employer to grant her a 6 month sabbatical in the first place!

You’d think that an employment law Solicitor would deal with plenty of sabbatical applications and that, out of all the various applications you could make to your employer, a sabbatical wouldn’t be seen as hugely controversial but, alas, no. Why? Well, partly because they are rare and uncommon and, because of this, employers don’t usually know what to do with them.

Is this is the main reason? Well, perhaps not. In reality, sabbaticals used to be common after staff had been at an organisation for a lengthy period of time (i.e. 15, 20 or 25 years) and, nowadays, it is much rarer for staff to hit those periods of service. Partly because of this, it is normally only really in academic roles that staff commonly obtain sabbaticals, albeit sometimes these aim to facilitate research and/or the authoring of articles rather than an ‘escape’ from the workplace.

How would bruising Brexit arguments be resolved in the workplace?

It seems that everything at the moment is about Brexit. Hard Brexit. Soft Brexit. No deal Brexit. Asking the people whether they want Brexit first ‘Brexit’. It all makes a mockery of the initial “Brexit is Brexit” comments from Theresa May at the start of the process. Even the word itself and continuing discussion of it, whatever your view, can become irritating and lead to entrenched beliefs in either ‘getting it done’, ‘getting it sorted’ or ‘stopping it’.

So, what happens when these views lead to difficulties in the workplace?  After all, the traditional dinner party rules of ‘don’t discuss religion or politics’ seem to apply more and more to workplaces.  But Brexit seems to have slipped past this implied rule, particularly when the (potential) event itself could lead to job instability and restructure of certain workplaces.

Let’s take a hypothetical example of how an employer should manage two warring colleagues with opposite views on Brexit who, unfortunately, let it impede work.  Our hypothetical employer, Brilliant Britain Limited, supplies union jack mugs around the world.  In order to do so, they rely heavily on the Production Manager, Tessa, and the Delivery Manager, Jez.  Naturally, the company needs both to do their jobs well – after all, you need goods to deliver and can’t sell goods without delivering them; therefore, the aims of their jobs go hand-in-hand.  From week to week, Tess and Jez need to constantly meet to update each other on production and delivery needs, so either can be amended to suit the other.

However, during these frequent private meetings, Jez and Tessa have clashed repeatedly on the idea of Brexit.  To use the rather awful slogans, Tessa is a ‘Brexiteer’ who wants to leave the EU and Jez is a ‘Remainer’ who thinks the UK would be in a worse state outside the EU under the current Withdrawal Agreement.

In recent weeks, as the political situation has worsened and Parliamentary stalemate has become entrenched, Jez has become an advocate of the People’s Vote (i.e. having a second referendum).  This was the final straw for Tessa who firmly believes that the result of the first referendum should be upheld and remains binding.  The two have effectively fell out, refuse to meet face-to-face and now communicate only by way of tetchy, aggressive emails.

Can the right to use a substitute be consistent with employee status?

There are around seven million carers in
the United Kingdom in 2019 – and that figure is estimated to increase by 3.4
million by 2030. That is a 60% estimated increase in just over ten years’ time.
A recent case involving a live-in carer with over three years’ service explores
the issue of determining employee status for non-traditional work relationships,
and confirms that the right to use a substitute does not always preclude an
individual from having employment status.

Historically, the law has been clear in confirming that an unfettered right to appoint a substitute is not consistent with employee status. However, Catfeild-Roberts v Phillips & Universal Aunts Limited, an Employment Appeal Tribunal judgment of this month, serves as an example of where this is not always the case.

Worker Status Confirmed for Uber Drivers

Uber’s appeal against a landmark tribunal ruling in 2016 has been unsuccessful following a judgment handed down in the Court of Appeal yesterday.

Uber drivers shall continue to be classified as workers, directly employed by the company, and will be in receipt of all the employment law protections that this affords.

The appeal was lodged by Uber to
overturn a 2016 Tribunal ruling that the hire-on-demand driver service should
treat its drivers as workers not as self-employed as argued by the firm. The
original decision was upheld after the judges reached a 2 -1 majority decision –
finding in favour of the workers.

Uber’s contention was that its
drivers should be treated as self-employed, in a similar way to that in which taxi
drivers and other private-hire vehicles are. In Britain, the self-employed are
not able to access basic employment-law protections such as for example the
right to a minimum wage, paid holidays, sick pay and rest breaks.

The above benefits carry
significant costs, which Uber’s business model has attempted to circumvent by
misclassifying drivers as self-employed when in reality, on the facts and as
re-confirmed by yesterday’s judgment they are workers. Uber has however
introduced a number of benefits to its drivers this year (for example pairing
up with insurance giant AXA to provide partner protection insurance for its
European drivers in the event of injury, sickness and family leave) and its position
is that the drivers enjoy the flexibility that the role offers, and that on
average its drivers earn much more than the minimum wage.

So why have the drivers been classified as workers?

Mourinho sacked: Liverpool FC turn Jose’s Christmas blue

So, the seemingly inevitable has happened.  Jose Mourinho has, after weeks of speculation, been sacked by Manchester United. The writing was largely on the wall, of course, given Jose’s continuing propensity to flick between extreme defensiveness and pettiness during press conferences, his verbal attacks on his players and the side’s consistently poor performances under his stewardship.

However, before the Liverpool FC game, the accepted wisdom was that Jose would see the season out (Louis Van Gaal-style) and then be dismissed at the end of the season. Naturally, given that Manchester United were so overwhelmingly outperformed in the derby game last weekend, it is perhaps not too surprising that the Manchester United board saw the need to take more immediate action.

Obviously, the situation with football manager contracts are usually different to ‘normal’ Contracts of Employment by way of being fixed-term (i.e. for a number of months or years) rather than rolling continuously until notice is given.  In this way, there will be the need for negotiations to end Jose’s Contract but, these things aside, he is immediately removed from his position as Manager.

For the purposes of this blog, let’s treat Jose as being in a ‘normal’ employee situation and see whether he would have fared any better.  So, hypothetically speaking, let’s say that Jose was a Production Manager in a warehouse for a company called Trafford Trailblazers and that the company produced various industrial items and delivered them to customers and let’s now consider what his recent actions would have meant within that more ‘regular’ role.

The Santa Clause – Employment Law Troubles in Lapland

Yes, Christmas is nearly here and, as with most years, Santa Claus is at the centre of shop displays and advertisements.

However, in recent years, Santa has faced a lot of competition, mostly from online retailers.  This is a natural consequence of Santa not having an online presence but, obviously, Santa remains reliant on Christmas spirit, rather than finances, to run his operation.

Unfortunately, this doesn’t prevent Santa from having employment law-related issues in Lapland and, as per usual, he needs a bit of advice to ensure that Christmas isn’t cancelled!  So, let’s snowand help Santa (sorry)!

The first issue this year is, weirdly, related to the General Data Protection Regulation 2018 (GDPR).  You see, both the reindeer and elves are paid in mince pies and, of late, there has been some friction due to the elves getting wind that the reindeer may receive more mince pies than them!  In particular, the elves fear that Rudolph receives double their allowance for the supposed reason of ‘needing them to keep his nose red and bright’!  Santa is very concerned that the elves, who are very technologically savvy (particularly as they build the latest computers and games consoles), may try and access the electronic files containing the reindeer mince pie allocations and, obviously, if that happens, he will have a data protection breach under the GDPR.  What should Santa do?

Was Ryanair’s dismissal of staff a bumpy landing?

It’s fair to say that Ryanair aren’t strangers to controversy.  Whether it be their pricing strategy, public statements or otherwise, they seem to attract publicity for many reasons, whether good or bad.

Given their nature for publicity, it was perhaps predictable that the media (and social media) would seemingly target Ryanair for dismissing six staff members photographed sleeping on the floor of a crewroom in a Spanish airport.  Indeed, on the face of it, it seems bizarre to punish staff who were ‘forced’ to sleep on the floor.

However, as with most situations, there is more to the story than the headline would suggest and, dig a bit deeper, and it seems that Ryanair may actually have had legal grounds for dismissing the six staff members for Gross Misconduct based on the publicised facts.

Now, as a starting point, naturally, you can’t dismiss staff for sleeping on a floor.  That would be ludicrous and completely unfair.  But, in this case, that isn’t why Ryanair dismissed their staff members.

So, why did Ryanair sack them?  What’s the big difference?  Well, put simply, Ryanair believe that the staff members ‘staged’ the photograph and did so with a view to damaging their reputation.  And, whilst people are perhaps inclined to automatically distrust the public statements of big companies in situations like this (and, instead, support the ‘underdog’), it appears that Ryanair has a point.

How can anyone judge this?  Well, put simply, because Ryanair published a CCTV video online showing the staff standing or sitting around and then appearing to agree to the taking of a photograph.  All the staff members then move over and arrange themselves in a close formation on the floor before an individual takes a photograph of them lying on the floor (which they weren’t doing before).

Great British Bake Off: When workplace tensions ‘knead’ solving!

cake

I don’t know who won The Great British Bake Off last night.  That’s a weird place to start a Bake Off-themed employment law blog, I know.  Unfortunately, my wife dozed off in the middle of the final last night, so we have to wait to watch the rest of it online tonight!

With the popularity of the show ballooning in recent years, more and more workplaces have decided to hold ‘Bake Off’ events to raise morale and/or raise money for charity.  I must admit to getting involved with such an event in my second week at a previous employer.

Just to set the background, I’d never properly baked in my life and so, obviously, thought that trying to bake a cake was the right way to win over my new colleagues.  Come the morning of the competition, from the outside at least, the cake looked fantastic.  The problem?  Firstly, it was a rather fragile two-tier cake, so I was forced to drive to work in no higher than fourth gear (to the utter joy of the traffic behind me) and, secondly, because the judge (who no doubt had been studying the critical technique of Paul Hollywood) called my sponge ‘ultimately disappointing’ and my dreams of Bake Off-style glory evaporated in an instant!

Why am I discussing this?  Well, Bake Off events in the workplace have the potential to cause workplace angst and, at very least, can cause staff tensions to rise.

Red Dead Redemption 2: Is ‘crunching’ actually voluntary overtime?

Cowboy Later today, the review embargo lifts on the biggest video game since Grand Theft Auto 5.  Even those of you not of a video gaming persuasion have no doubt noticed the constant advertisements online, on the TV and on the side of buses for “Red Dead Redemption”.

What is Red Dead Redemption 2?  Well, it’s an adventure game set in the Wild West with the almost mandatory mix of horse chases, gun-slinging and exploring a vast desert-esque landscape.

So, why is it such a big deal?  One word: Rockstar.  Rockstar are the equivalent of Apple 10 years ago.  By that, I mean that nearly every product they make receives rave reviews (at least 95% on average) and is known for its brutal, gritty storytelling.  As an example of their attention to detail, in some shape or form, work on this game has been ongoing for eight years with a budget larger than many Hollywood movies!

So, surely, eight years is more than enough to make a good game.  Well, yes.  But Rockstar want to make ‘extraordinary’ games not just good or very good ones.  And this, unfortunately for them, has led to a lot of media controversy over supposedly ‘voluntary’ overtime and the issue of ‘crunching’.

Let’s tackle the media controversy first.