Whistleblowing – meaning of worker

The Public Interest Disclosure Act 1998, or more commonly called the Whistle blowing Act, creates two levels of protection for whistle blowers.

The dismissal of an employee will be automatically unfair if the main reason, for dismissal is that they made a “protected disclosure”. The Act also protects and employee for being subjected to any detriment on the ground that they have made a protected disclosure.

The definition of “worker” under the Whistle Blowing Act is wider than the definition under the Employment Rights Act 1996. However, the recent case of McTigue v. University Hospital Bristol NHS Foundation Trust has highlighted just how widely the courts are willing to apply the definition.

The Definition of “worker”
A “worker” is defined by section 230(3) ERA 1996 as: “an individual who has entered into or works under (or, where the employment has ceased, worked under) –
a contract of employment; or
any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

However, under section 43K ERA 1996, the usual definition of worker is extended in relation to the whistle blowing provisions to include a number of individuals who would not otherwise be covered. This additional definition includes agency workers and individuals supplied via an intermediary.

The case was helpful in some guidance on how to determine whether an individual is a worker within section 43K(1)(a)

A number of questions that should be addressed when determining whether an individual is a worker within section 43K(1)(a) are helpful such as:
– For whom does or did the individual work?
– Is the individual a worker as defined by s.230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person.
– If the individual is not an s.230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and, if so, by whom? If so, were the terms on which the individual was supplied to do the work determined by the individual? If the answer is yes, the individual is not a worker within s.43K(1)(a).
If the answer is no, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them?

If any of these is satisfied, the individual does fall within the subsection.
In answering question (e) the starting point is to look at the the contract. Also look at the agency contract.

If the company alone mainly determines the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the company is the employer within s.43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under s.43K(2)(a).

Key points from this case: an agency worker may be able to bring a whistle blowing claim against an end user, provided that the terms of engagement are not substantially determined by the worker himself/herself; and that the fact that an individual may be a section 230(3) worker in relation to the agency does not automatically prevent that individual from being a worker under the extended definition.

We can assist with whistle blowing questions

Flexibility Clauses in Contracts – do they give employers power to vary anything?

Employers look for some ‘wriggle room’ in contracts by including ‘flexibility clauses’ when issuing contracts of employment.

These are express terms in a contract which can enable employees to make changes to an employee’s terms and conditions.

Flexibility clauses can be specific such as dealing with defined issues, such as working hours, or be used more generally to change a contract in ways an employer may not have predicted.

What about Consent?

An employer may not vary the terms of a contract without the consent of an employee.  However, if a contract already has a flexibility clause in it, then it could be said that the employee has already given consent for changes.

However, it is not wise to simply vary a contract even if it does have a specific flexibility clause in it which seems to give an employer the power to make the change as employers need to be reasonable in the changes they make in using flexibility clauses and case law suggests that tribunals and courts commonly place a narrow interpretation on what such clauses allow. Either way, legal advice in such matters is always a good idea.

Still necessary to consult

Employers should consult employees on the intended change – a failure to do so could be considered a breach of trust and confidence implied in the contractual relationship between the two, and may lead to claims of breach of contract or constructive dismissal.

Employees may have concerns about a change, and employers should take these on board and seek to resolve problems or find routes to a compromise before implementing a change, even if it is provided for by the contract.

Involving employees makes good business sense, as it drives up levels of employee engagement and motivation – and finding a compromise in a difficult situation is the best way of preserving good employment relations at work.

Restrictive Covenants – are they enforceable?

The High Court found in Bartholomews Agri Food v Thornton [2016] EWHC 648 (QB) that the reasonableness of an individual’s restrictive covenants will be judged at the point they were entered in to.

Therefore, if a junior employee is signed up to restrictions that are overly restrictive in terms of their breadth and/or their duration then they will simply be void as being in restraint of trade – irrespective of any subsequent promotion.

This means that even if a junior employee is promoted to a higher position where the restrictive covenant is therefore reasonable by the fact that their employment contract had covenants in them which were unreasonably wide may risk the fact that the employer cannot get the benefit of them even when the employee holds a position which would warrant the wider restrictions being in place.

Here the High Court also concluded that the restrictive covenant would have been void even if entered in to when Thornton became a senior employee. It restricted Thornton from undertaking work for any of Bartholomews’ clients regardless of his own dealings with them. On the facts, Thornton worked with just over 1% of the company’s clients (in terms of turnover) but the restriction had no personal nexus (whether that was working for and/or knowledge of the clients). Thus it was a broad, blanket restriction that was unenforceable.

As a reminder: Restrictive covenants are void as restraint of trade other than where they are necessary to protect the legitimate business interests of a company. Restrictions should always be tailored to the individual’s role as at the time they are entered into.

The restrictions should be the minimum necessary for the particular legitimate business interests they are said to protect. However, it is still possible to protect a business with bespoke restrictions – so make sure you seek help in drafting them.

Eye Tests – Employers responsibility?

The Health and Safety (Display Screen Equipment) Regulations 1992 explains what you, as an
employer, may need to do to protect your employees from any risks associated with Display Screen Equipment (DSE) (ie computers and laptops).

These Regulations only apply to employers whose workers regularly use DSE as
a significant part of their normal work (DSE users).

These Regulations do not apply to workers who use DSE infrequently or for
short periods of time.

If you have DSE users, you must:
■■ analyse workstations to assess and reduce risks;
■■ make sure controls are in place;
■■ provide information and training;
■■ provide eye and eyesight tests on request, and special spectacles if needed;
■■ review the assessment when the user or DSE changes.

What are the health risks with DSE?
Some workers may experience fatigue, eye strain, upper limb problems and
backache from overuse or improper use of DSE. These problems can also be
experienced from poorly designed workstations or work environments. Helping spot these risks help make workplaces safer and better places to be.

Advice: it is suggested that an employer who has DSE users consider the following:

Pay for the cost of an eye test every two years and the cost of a basic set of specs (usually around £100 or perhaps 75 contribution towards glasses if deterioration due to DSE use – the optician is able to assess this). There’s no requirement to pay for designer frames- that’s down to the employee.

Sometimes employers may be able to have a corporate agreement with an optician to provide fee eye tests for employees and family members if they use their glasses.





Modern Slavery Act Statement

The Modern Slavery Act 2015 came into force in October last year and applies to financial years ending on or after 31 March 2016.

The Act requires large organisations doing business in the UK, with a minimum total turnover of £36 million per year to publicly state each year the action(s) they have taken to ensure that their supply chains are slavery free.

We would advise that the statement must include or state as follows:

  • the steps the business has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business; or
  • that the organisation has taken no such steps.

The statement may contain other information, such as the organisation’s structure, its due diligence processes in relation to slavery and human trafficking and any training on the subject that is provided to its employees.

While there is no set time limit in which to make the statement, the Home Office guidance provides that a business is encouraged to make it within six months of the end of the previous financial year.

If the organisation has a website, it must publish the statement on that website and include a link to the slavery and human trafficking statement in a prominent place on the homepage.

Employers:  even smaller companies are being asked to publish a Modern Slavery Act Statement if they are tendering for work with certain customers.

We can provide further information on this topic and can also assist organisations in preparing a compliant statement.

Contact us if you need help with a Modern Slavery Act Statement

Sunday Trading

Sunday Trading

The government has decided to move ahead with its plan to loosen the restriction on Sunday trading hours in England and Wales, despite opposition.

At the moment, large shops in England and Wales (ie those with over 280 square metres of floor space) are allowed to open for only six hours on a Sunday, between 10 am and 4 pm.

The government is proposing to allow councils to extend those hours, so retailers can have the flexibility to compete for trade. Councils will also be able to restrict the longer hours to certain zones, such as high streets and city centres, although there are fears that the additional hours will benefit large chains to the detriment of independent high street stores.

An additional proposal is to make it easier for those who work on a Sunday to opt out of doing so. At the moment, all employees can opt out of Sunday working by providing three months’ notice. Under the new proposal, the required period of notice to opt out would be reduced to one month.

Contact us if you need any help with zero hours or part-time contracts

Suspending Disciplinary Hearings if a Grievance is Lodged

- Potentially no need to duck for cover when the employee is firing blanks..

 In the recent case of Jinadu v Docklands Buses Ltd the Employment Appeals Tribunal (EAT) found that an employer is not required to place on hold the disciplinary process while an employee’s grievance is dealt with.Employers will take comfort from this case as it found that the employer did not have to spend hours investigating each of the accusations in the employee’s grievance before being able to complete the original disciplinary process.

The case involved a bus driver being summoned to a disciplinary hearing after reports of poor driving. During the proceedings the employee made a number of allegations against some of the managers involved.  However the employer continued with the disciplinary proceedings and ultimately dismissed the employee. The employee claimed that her grievances should have been resolved before she was dismissed. The EAT ultimately decided that this was not the case and that the dismissal was fair.

Employers:  This is a helpful case for employers but care needs to be taken in relying on such case as each case hinges on its own facts.

The EAT did not go into great depth as to why it rejected this argument made by the employee. This means that it is still uncertain as to when an employer can proceed with a dismissal without dealing with any grievances raised and when this would be inappropriate. However this case does make it clear that if a grievance is ignored then the dismissal is not automatically unfair. This in itself should provide some encouragement to employers.

A disgruntled employee will often make accusations about managers who have criticised them. This should not absolve their input in the process.

If you believe the accusations could have an effect on whether or not the employee keeps their job, then this should be a part of your investigation. If however the grievances are unrelated to the employee’s situation and simply a way of trying to delay the inevitable, then you should proceed with the disciplinary process as planned.

However we would strongly recommend, if at all possible, having an impartial person to chair any disciplinary hearing. This should be someone who has had no involvement with the investigation nor the employee previously.


Fit for Work


Fit for Work Service ready for use

A new service is being launched that allows employers and GPs to make free Occupational Health referrals for employees off work for four weeks or more. The service will be voluntary and so employees must give their consent to be referred by either their GP or their employer.

The service is not fully operational at present but the Fit for Work service for England and Wales has started trialling the service in Sheffield. It is expected that the service will be fully rolled out across England and Wales over the next few months.

The aim of the service is to help employers and employees alike to manage sickness absence more effectively at an early stage so that employees can be helped back to work.  It is estimated that over 130 million days are lost to sickness absence each year at a cost to employers of £9 billion per annum in terms of loss of production and sick pay costs.

Research has shown that early intervention at four weeks compared to six months has a greater impact on getting an employee back to work (when they still have an attachment to their work). Evidence suggests that the longer an employee is off work, the lower the chance of them returning to work.

Some of the key benefits of the Fit for Work Service are:

Free occupational health referrals from an employee’s GP or employer after four weeks of sickness absence

  1. In addition to the referral a practical step by step Return to Work plan will be produced to assist employees in returning to work.
  2. An advice line to offer assistance to both employers and employees so that advice can be sought at an earlier stage

The service should provide some relief for employers faced with increasing sick pay costs since the withdrawal of the Percentage Threshold Scheme. Though the service remains as voluntary it is to be hoped that the independent and impartial nature of the service will encourage more employees to engage with Occupational Health with a view to returning to work as soon as is practicable.

Employers:  details of the service can be found at www.http://fitforwork.org/

Where are we now with Holiday Pay


Where are we now with Holiday Pay? 


There has been extensive coverage in the media on what is included in holiday pay after the Employment Appeals Tribunal (EAT) decision on 4 November 2014 in Bear Scotland and others v Mr Fulton and others.  Be careful on relying on the media reports – we have summarised the key points with guidance below on this important judgment.The case of Bear Scotland was about how an employer should calculate holiday pay.  The EAT decided that both guaranteed and non-guaranteed compulsory overtime worked by a worker should be included when the employer calculates holiday pay.  Importantly, employees can make claims for backdated holiday pay.

There are three types of overtime:

  • Compulsory overtime – this should be included when calculating holiday pay.
  • Non-guaranteed overtime – that is, overtime which the worker is required to work if so asked by the employer but which the employer does not guarantee to provide.
  • Voluntary overtime – this is overtime which an employer is not obliged to offer and the worker is not obliged to accept. Such overtime is not covered by the decision which has left some confusion.  However with the way European case law is moving, it seems very possible that true voluntary overtime will be included in calculating holiday pay going forward.

The Key points to take from the decision are:

  • Holiday pay should be equivalent to a worker’s “normal” pay.  What is “normal” depends upon whether the payments in question have been made for a sufficient period of time to justify the label of being “normal”.  If overtime is regularly worked then this payment would be seen to be “normal”.
  • Overtime which a worker is not permitted to refuse (ie guaranteed and non-guaranteed overtime) must count as part of their “normal” pay when calculating holiday pay.
  • There has been much concern of the length of time that an employee can backdate holiday pay claims as technically they could back date them to 1998 (the date of of Working Time Regulations) which could have a large financial implication for employers.  This decision clarified that as far as historic underpayments of holiday pay are concerned, the vast majority of workers will only be able to recover underpayments in the last three months with an unlawful deduction from wages claim (with a small number only able to recover sums further back).

Further points to bear in mind as guidance:

  • The judgment only applies to the 20 days’ annual leave guaranteed under the Working Time Directive, not the additional 8 days’ leave.  The extra 8 days Bank / public holidays given in England are more than the European Directive so it is legal to pay a higher rate of pay including overtime payments for the 20 working days per year holiday entitlement, with the remaining 8 days being paid at the level it previously was.  However administering this may be more problematic and an employer may decide to pay all 28 days at the higher holiday pay rate.
  • There is confusion about ‘voluntary overtime’.  The judgment has no definitive statement to confirm that purely voluntary overtime would also be included.  There are comments in the judgment that lean towards this view and the various European-level decisions favour the fact that voluntary overtime which is regularly worked by a worker would count as part of their “normal” pay and hence should be included when calculating holiday pay but it is not clear.  If an employer is uncertain about this – the best guidance would be that if voluntary overtime is worked on a regular basis with similar hours each week then this is likely to be reasonable to add into “normal” pay for holiday pay purposes.  However, sporadic voluntary overtime would likely not fall into this category.
  • Only where worker’s previous periods of  holiday are separated by a gap of less than 3 months are they able to recover underpayments for a longer period than the 3-month limit set out above, by arguing that the underpayments form part of a “series” of underpayments.  Even in these cases it is unlikely that an employee will be able to recover underpaid holiday for more than one holiday year.
  • A 12-week reference period for calculating average pay is usually accepted as a fair method, however, bear in mind that some workers’ pay may vary throughout the year and a 12-week snapshot could be misleading depending upon the 12-week period captured.  In such cases a longer period may be necessary and justified, even up to a 12-month reference period in some cases.
  • Commission payments – after the decision of Lock v British Gas Trading Ltd it is now accepted that commission payments should be included in holiday pay where an employee:
  1. receives commission as part of their pay;
  2. the commission is permanent enough to be regarded as forming part of their monthly pay; and
  3. there is an ‘intrinsic’ link between that commission and the performance of tasks that they are required to do.

Payments to take into account when calculating holiday pay:

  • commission payments
  • guaranteed and non-guaranteed overtime that is regularly worked
  • only consider voluntary overtime if this is a set pattern and regular
  • incentive bonuses
  • travel time payments (not expenses, but payments for the time spent travelling)
  • shift premia
  • seniority payments (payments linked to qualifications / grade / experience)
  • Stand-by payments
  • Any other relevant payment intrinsically linked to the job such as “time away” payments.

Employers:  going forward, the EAT has given leave to appeal to the Court of Appeal, however following the judgment the Business Secretary, Vince Cable, announced that the Department for Business Innovation & Skills (BIS) will be setting up a taskforce to urgently assess the impact on businesses.  One issue identified is that employees may book holiday after higher periods of overtime to increase their holiday pay related to the previous 12 weeks’ earnings.

The main point is that costs for employers will increase in the long-run which may result in more agency staff being used or a decrease in overtime with a move to pay a slightly higher annual wage without overtime payments or to use temporary staff to cover overtime.

Contact us if you need further guidance.
















The Countdown to Shared Parental Leave

This month marks the beginning of the introduction of Shared Parental Leave (SPL) for employees whose Expected Week of Childbirth (EWC) is on or after 5 April 2015. Pregnant employees now reaching that all-important 12 week stage, may be notifying their employers of their pregnancy. This means that employers may start to get questions about the operation of the new scheme.

Employees are not obliged to take up the option of SPL and the current scheme of 52 weeks’ Maternity Leave will remain the default position unless agreed otherwise.

SPL gives parents who meet the eligibility criteria more flexibility regarding the leave they take upon the birth or adoption of a child. Both parents essentially share a ‘pot’ of leave which can be taken in turns or at the same time. Mothers will still be required to take at least two weeks’ compulsory maternity leave immediately after the birth but the remaining time (a maximum of 50 weeks) can be shared by both parents as desired.

For the first time, weeks of the ‘pot’ of leave can be used simultaneously by both parents. SPL must be taken in complete weeks and can either be taken in a continuous period, which an employer cannot refuse, or in a discontinuous period, which the employer may be able to refuse.

To be eligible for SPL an employee must have at least 26 weeks’ continuous service at the end of the 15th week before the EWC.  The employee must still be employed in the first week that SPL is to be taken and must give sufficient notice of their intentions. To qualify for Statutory Shared Parental Pay (ShPP) they must also meet the same average earnings threshold as with Statutory Maternity Pay (currently £111 per week).

In addition to these criteria, the other parent must have worked for 26 weeks in the 66 weeks prior to the EWC and have earned a minimum of £30 in 13 of these 66 weeks.

The new regulations come into force on 1 December 2014, from when employees will have protection from any detriment or dismissal for a reason related to SPL.

The current general rule is that pregnant employees can begin their maternity leave up to 11 weeks before their EWC. This will also be the case with SPL, so for those first employees to whom SPL will apply, they will be able to begin their SPL on or after 18 January 2015.

Employers:  Contact is of us if you need assistance with an SPL request or drafting any of the letters.  You may need to add this new policy into your Company Handbooks.