The CJEU has considered another case involving rest breaks that can be interrupted at short notice and whether they meet the requirements of the Working Time Directive. Article 2 says that working time is any period of time where the worker is working, at the employer’s disposal and carrying out their duties. A rest break is any period which is not working time. There is no halfway house here – time is either working time or a rest break. A series of European cases have looked at rest breaks which can be interrupted at short notice and whether that undermines the whole point of the WTD which is to promote health and safety.
The wording which sets out the burden of proof rules in a discrimination case changed when the Equality Act 2010 brought all the laws on discrimination together in one place. The discrimination legislation previously said that if the employee proves facts which, in the absence of a reasonable explanation, the tribunal could conclude was discrimination, the burden of proof shifts to the employer who must then show that there is another, non-discriminatory explanation for their treatment of the employee. If the employee didn’t prove those facts then the claim failed. This was often referred to as the employee showing a ‘prima facie’ case. In reality, tribunals would hear all the evidence, including the employers, before deciding about whether the burden of proof shifted to the employer to explain their behaviour, not least because the employer’s evidence may completely contradict the employee’s. The Equality Act 2010 wording is slightly different – it says where there are factsrather than where the employee proves facts, which has caused confusion and some people to think that the rules have changed. The Supreme Court has now clarified the position in Royal Mail Group v Efobi.
The opportunity to appeal against dismissal is usually considered to be an essential element of a fair dismissal. In the recent case of Gwynedd County Council v Barrett, the Court of Appeal said that this is not necessarily the case in a redundancy dismissal.
The government has published a consultation document – Making flexible working the default – which proposes various changes to the existing rights for employees to request flexible working. This consultation document comes hot on the heels of the widespread flexible working that business and workers have had to adopt in the wake of the Covid-19 pandemic. Homeworking has increased exponentially and been shown to work in many fields where it was previously rare. The pandemic has also created more awareness of the importance of work-life balance and caring responsibilities for children and family members who are unwell. Although some of this flexible working may not be sustainable in the long term, our eyes have been opened to what is possible and the government is seeking to capitalise on this opportunity.
Most employers have long been alive to issues of diversity in business in terms of protected characteristics such as race, sex and disability. But what about class? Socio-economic grouping is not a protected characteristic, so is seeking to ensure a certain percentage of ‘working class’ employees a hurdle too far?
The New Year saw the demise of the FLA’s well-established Finance House Base Rate (“FHBR”) essentially to avoid the regulatory consequences of some complex EU Benchmark Regulations.
However, in practice the FLA will continue to publish a figure which will effectively replace FHBR. In the words of the FLA statement explaining the change:
In our Summer 2019 newsletter, we looked at the changes to IR35 that are due to be implemented in 2020 (IR35 changes). IR35 rules focus on those individuals who operate as independent self employed contractors but actually work like employees and the rules aim to ensure such individuals pay tax and NI in line with employees. Originally the onus was on the individual to decide if they were caught within the scope of IR35.
In 2017 the government, to combat what it believed to be widespread abuse of the rules, introduced changes in the public sector which put the onus on the organisations who contracted with the individuals to decide whether the individual was caught within the scope of IR35. These changes are set to be rolled out to the private sector in April 2020.
Bermans Education team has extensive experience in a wide range of education legal services.
The team advises Universities, Colleges & Schools and Charities, and a range of public and private
sector bodies.
Specialist Employment Services
Child protection and safeguarding including multi party inquiries involving LADO
Data Protection
Employment law and HR advice
SMT exit strategy
Employment tribunal representation
Intellectual property in teaching materials
Pupil behaviour and school exclusions
School admissions and appeals
Special educational needs and disability
Fixed Price Employment and Education advice retainers
Bespoke services provided upon request
Our Team
Neil Gouldson, Consultant
Neil has advised in employment and education law for over 20 years. He has been trusted to lead on serious child safeguarding inquiries in professional sport involving LADO and other third parties. Neil’s expertise includes:
Supports Governors and SMT with pupil behaviour issues, school exclusions, school admissions and admission appeals.
Represents clients in the employment tribunal and provides advice on day-to-day HR matters for schools.
Sophie is described by her education clients as “super-efficient” and “always one step ahead”, dealing with internal disciplinary matters or managed exits involving SMT members. Sophie’s expertise includes:
Makes multi-faceted situations simple when considering complex child safeguarding issues or
applying teaching standards within the context of internal disciplinary hearings and managed
staff exits.
Assists clients with preparing their case in the employment tribunal and provides advice on
day-to-day HR matters for schools
“If you need a first-class legal professional on your side, choose Sophie. I have engaged her services for nearly a year, and it is very clear that she is an expert in employment law with an uncanny ability to read situations accurately and quickly before giving easy-to-follow advice on how best to proceed.”
Ms A C Bingley (Principal of Tower College)
“Neil has provided continued support over a number of complex HR issues at School. While clearly having excellent employment law knowledge, delivered in a friendly and approachable manner, Neil balances this with pragmatic solutions, working through the HR practicalities and additional consideration points.”
Cheryl Wallace, Personnel and Compliance Manager, The Birkenhead School
“When we were looking for a legal firm to partner with MGL, Bermans were our first choice. They provide expert legal advice and really get to know and understand their clients’ needs. We are happy to introduce them to our schools, confident that they will offer the experience of the sector and the legal support that our clients need and all presented in a way that our schools are comfortable with.”
The recent news that foreign exchange company Travelex is being held to ransom by hackers after a cyber attack is a reminder to organisations that cyber security is a business-critical issue. The gang claiming to be behind the hack has demanded £4.6m and explained that they hacked into the Travelex databases six months before the ransom demand was issued on 31 December 2019, spending that period downloading client data including names, dates of birth, credit card details and national insurance numbers.
The attack has led to Travelex taking down its website in 30 countries and turning off its computer systems. Could your business recover from such an attack asks our Commercial team?
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The CJEU has considered another case involving rest breaks that can be interrupted at short notice and whether they meet the requirements of the Working Time Directive. Article 2 says that working time is any period of time where the worker is working, at the employer’s disposal and carrying out their duties. A rest break is any period which is not working time. There is no halfway house here – time is either working time or a rest break. A series of European cases have looked at rest breaks which can be interrupted at short notice and whether that undermines the whole point of the WTD which is to promote health and safety.
