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Holiday pay ruling: what does it mean?
December 2014 • Holiday pay ruling: what does it mean? • Recent HSE news & prosecutions • DVLA phases out paper licences • Tech support scams rising • The dangers of Christmas stress.
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The Employment Appeal Tribunal (EAT) ruled on 4 November that companies should factor in overtime when calculating holiday pay, a controversial move that has been rebuffed by business leaders but celebrated by workers. Under EU law, workers are granted four weeks of holiday pay every year, but there were no specifics for calculating it. Therefore, until now, the UK government has been interpreting the law to mean that holiday pay should be an employee’s basic rate of pay, which excludes overtime. But the EAT ruling suggests businesses and the UK government have been interpreting the law incorrectly and that companies should include overtime when calculating workers’ holiday pay. Impact for employers The ruling has far-reaching implications for companies where employees are required to work overtime as a routine part of their job—more than 30 million people work in the United Kingdom, and about 5 million of them work overtime, according to the Office for National Statistics. To curtail the potential for backdated holiday pay claims, the EAT ruled that employees cannot claim anything more than three months after their last underpaid holiday. Going forward, employers should decide how to deal with existing claims—all of which have been stayed pending the outcome of a likely appeal. Employers will also need to decide what constitutes normal salary to correctly calculate holiday pay. To cut overtime and holiday costs, employers should consider restructuring working arrangements or relying on bank or agency staff. Impact for employees Employees who regularly work overtime—especially those in the manufacturing and construction industries—can anticipate potentially higher holiday pay in the future. But employers will likely trim overtime hours to limit holiday pay.
South London waste firm fined for dismal safety record A south-east London waste firm was fined £6,000 and ordered to pay £1,287 in costs for a litany of health and safety offences extending through the past five years. The waste firm repeatedly endangered their employees by neglecting to service heavy machinery and leaving it in a dangerous condition. The most serious breaches related to defects in machines. For instance, in October 2013, an annual inspection found several defects in a loading shovel, including extensive damage to the bolts fixing the front bucket to the machine, which could have led to the bucket falling off and crushing anyone nearby. The firm was advised not to use it until it was repaired, but ignored the recommendation and continued using it until an HSE visit in January 2014. Several days later, the HSE identified an excavator in use without left or right-side mirrors, which restricted driver visibility. Furniture store said customers could not collect furniture A Newport furniture store told a customer’s wife that she could not collect any furniture her husband purchased (a foot stool in this case) due to health and safety reasons, although the item fit perfectly well in her car. The store stated that it had to be delivered, which costs about £30. The HSE Myth Busters Panel decided that there are not health and safety regulations prohibiting members of the public from collecting items from retail stores and taking them home themselves. The store may have been trying to schedule a costly home delivery while hiding behind the spurious excuse of ‘health and safety’, as many other stores in the area offer in-store collection. Online delivery driver no longer able to carry shopping upstairs The online delivery driver at a chain supermarket’s Glasgow location told a customer he could no longer carry shopping upstairs due to ‘health and safety issues’. The customer was sympathetic until the driver stated that this new rule allowed him to carry out more deliveries. The HSE Myth Busters Panel investigated and found that the supermarket chain made clear that this change in service was a limited trial and in no way prompted by health and safety concerns. The driver should have made it known that the company was undergoing a trial process, and he should have asked for the customer’s feedback rather than immediately refusing the request and offering a bogus excuse.
DVLA phases out paper licences
The Driver and Vehicle Licensing Agency (DVLA) is phasing out the paper counterpart of driving licences and will only issue the photocard starting 1 January 2015. The decision to eliminate the paper licence stems from the government’s Red Tape Challenge consultation on road transport, and is aligned with the government’s recent abolition of the paper tax disc in an effort to digitise driver records and cut through bureaucratic red tape. The government estimates that phasing out paper licences will save drivers about £8 million in reduced fees. What does this mean for employers? As an business owner or manager, you must verify whether your employees who drive for work need to use a tachograph, have a valid licence and possess the proper qualifications. Failing to do so could generate a £1,000 fine for the motorist and expose you to liability for any injury, damage or death caused by your employees driving with an invalid licence while working. Beginning 1 January 2015 employers can no longer use the paper counterpart to check driving information—such as provisional entitlements and endorsements—which is not listed on the photocard licence. Currently employers can verify employees’ driver information with their permission through the following services: • • • •
By post for £5 per enquiry By phone for 51p per minute: 0906 139 3837 By fax for £5 per enquiry Via the Electronic Driver Entitlement Checking Service, which requires organisations to pay set-up costs, an enquiry fee and enter into a contract with the DVLA.
Along with phasing out paper licences, the DVLA is developing a digital enquiry service for businesses that need real-time access to drivers’ information which cannot be accommodated via existing services or an intermediary. The service, Share My Driving Record (SMDR), will only reveal data to organisations that are authorised to see it and that have notified the driving licence holder. SMDR will initially be free, but that could change pending further review. The DVLA decided to initially not charge SMDR users in an effort to mirror drivers’ ability to present such information found on their paper counterpart free of charge to organisations or employers who have a right to view it. Existing services, along with their attendant costs, will remain unchanged. Currently, the DVLA only discloses driver data with the licence holder’s explicit consent. But that could also change—after the abolition of the paper counterpart the DVLA may offer driver entitlement checks without the driver’s consent. Deliberation is ongoing, but data requesters may eventually only need to notify the driver and prove they are accessing the information legitimately. What does this mean for employees? Not much—employees with paper driving licences issued before the photocard was introduced in 1998 should keep their licence. The next time they update or renew their licence, they will only be issued a photocard. After 1 January 2015 licence holders may destroy their paper counterpart—but not before. Employees can check their own driving information by visiting www.gov.uk/view-driving-licence.
Tech support scams rising
A growing number of people are falling victim to computer tech support scams—up to 15 per cent of Britons have been duped so far, according to Microsoft research. The scammers have two main strategies. The first involves scammers setting up fake websites offering anti-virus downloads that are designed to fail on installation. The failed installation alerts users to call a phone number that connects them to the scammers. Then, using a variety of social engineering tactics, scammers trick users into believing their computers have a virus that can only be removed using the scammers’ software. The scammers install their software on the users’ computers or provide users with instructions on how to do so. This software can accomplish several illegal tasks, such as gathering credit card information, tracking users’ keyboard movements or gaining unfettered access to users’ computers.
The second tech support scammer strategy starts with actual phone calls—scammers call victims at home, pretending to be experts recruited to help with a computer emergency. Using fake websites and expert coercion, the scammers make it seem as if they are fixing problems on victims’ computers. Scammers usually charge hundreds of pounds for their services—then things can escalate quickly. After gaining the victims’ trust, the scammers ask to gain remote control of the victims’ computers in order to ‘fix’ the non-existent problems. From there, scammers can install any number of nefarious programs, such as those that track users’ internet histories and compile their online banking information. If you suspect you are being scammed: hang up. Reputable companies do not contact computer users unexpectedly. You can safely assume that any unsolicited communication concerning anti-virus software is illegitimate.
The dangers of Christmas stress Paul, a homeowner in Bristol, was busy getting ready to host a Christmas Eve breakfast for his family and friends. The night before Christmas Eve, Paul put up festive decorations on the inside of his home. Despite being exhausted from his hours of food preparation, he decided to also decorate the exterior of his home. Paul strung Christmas lights around his windows and a few shrubs. He plugged the lights in and went to bed. Early the next morning, Paul was woken by fire service sirens and realised they were outside of his house. He saw flames and
smoke coming from the front of his house and quickly ran outside. The fire service was able to extinguish the fire, but Paul’s home suffered extensive damage. A fire-fighter determined that the fire was started by the Christmas lights, which were old and weathered. Paul was so tired when he was hanging them that he did not take the time to inspect the lights and wiring for any obvious damage. If Paul had taken care of himself and not felt stressed, he could have noticed the damaged lights and avoided this accident.
The content of this newsletter is of general interest and is not intended to apply to specific circumstances. It does not purport to be a comprehensive analysis of all matters relevant to its subject matter. The content should not, therefore, be regarded as constituting legal advice and not be relied upon as such. In relation to any particular problem which they may have, readers are advised to seek specific advice. Further, the law may have changed since first publication and the reader is cautioned accordingly. © 2014 Zywave, Inc. All rights reserved.
bluefingroup.co.uk Bluefin Insurance Services Limited is authorised and regulated by the Financial Conduct Authority.
Think
Holiday pay ruling: what does it mean?
December 2014 • Holiday pay ruling: what does it mean? • Recent HSE news & prosecutions • DVLA phases out paper licences • Tech support scams rising • The dangers of Christmas stress.
.
The Employment Appeal Tribunal (EAT) ruled on 4 November that companies should factor in overtime when calculating holiday pay, a controversial move that has been rebuffed by business leaders but celebrated by workers. Under EU law, workers are granted four weeks of holiday pay every year, but there were no specifics for calculating it. Therefore, until now, the UK government has been interpreting the law to mean that holiday pay should be an employee’s basic rate of pay, which excludes overtime. But the EAT ruling suggests businesses and the UK government have been interpreting the law incorrectly and that companies should include overtime when calculating workers’ holiday pay. Impact for employers The ruling has far-reaching implications for companies where employees are required to work overtime as a routine part of their job—more than 30 million people work in the United Kingdom, and about 5 million of them work overtime, according to the Office for National Statistics. To curtail the potential for backdated holiday pay claims, the EAT ruled that employees cannot claim anything more than three months after their last underpaid holiday. Going forward, employers should decide how to deal with existing claims—all of which have been stayed pending the outcome of a likely appeal. Employers will also need to decide what constitutes normal salary to correctly calculate holiday pay. To cut overtime and holiday costs, employers should consider restructuring working arrangements or relying on bank or agency staff. Impact for employees Employees who regularly work overtime—especially those in the manufacturing and construction industries—can anticipate potentially higher holiday pay in the future. But employers will likely trim overtime hours to limit holiday pay.
South London waste firm fined for dismal safety record A south-east London waste firm was fined £6,000 and ordered to pay £1,287 in costs for a litany of health and safety offences extending through the past five years. The waste firm repeatedly endangered their employees by neglecting to service heavy machinery and leaving it in a dangerous condition. The most serious breaches related to defects in machines. For instance, in October 2013, an annual inspection found several defects in a loading shovel, including extensive damage to the bolts fixing the front bucket to the machine, which could have led to the bucket falling off and crushing anyone nearby. The firm was advised not to use it until it was repaired, but ignored the recommendation and continued using it until an HSE visit in January 2014. Several days later, the HSE identified an excavator in use without left or right-side mirrors, which restricted driver visibility. Furniture store said customers could not collect furniture A Newport furniture store told a customer’s wife that she could not collect any furniture her husband purchased (a foot stool in this case) due to health and safety reasons, although the item fit perfectly well in her car. The store stated that it had to be delivered, which costs about £30. The HSE Myth Busters Panel decided that there are not health and safety regulations prohibiting members of the public from collecting items from retail stores and taking them home themselves. The store may have been trying to schedule a costly home delivery while hiding behind the spurious excuse of ‘health and safety’, as many other stores in the area offer in-store collection. Online delivery driver no longer able to carry shopping upstairs The online delivery driver at a chain supermarket’s Glasgow location told a customer he could no longer carry shopping upstairs due to ‘health and safety issues’. The customer was sympathetic until the driver stated that this new rule allowed him to carry out more deliveries. The HSE Myth Busters Panel investigated and found that the supermarket chain made clear that this change in service was a limited trial and in no way prompted by health and safety concerns. The driver should have made it known that the company was undergoing a trial process, and he should have asked for the customer’s feedback rather than immediately refusing the request and offering a bogus excuse.
DVLA phases out paper licences
The Driver and Vehicle Licensing Agency (DVLA) is phasing out the paper counterpart of driving licences and will only issue the photocard starting 1 January 2015. The decision to eliminate the paper licence stems from the government’s Red Tape Challenge consultation on road transport, and is aligned with the government’s recent abolition of the paper tax disc in an effort to digitise driver records and cut through bureaucratic red tape. The government estimates that phasing out paper licences will save drivers about £8 million in reduced fees. What does this mean for employers? As an business owner or manager, you must verify whether your employees who drive for work need to use a tachograph, have a valid licence and possess the proper qualifications. Failing to do so could generate a £1,000 fine for the motorist and expose you to liability for any injury, damage or death caused by your employees driving with an invalid licence while working. Beginning 1 January 2015 employers can no longer use the paper counterpart to check driving information—such as provisional entitlements and endorsements—which is not listed on the photocard licence. Currently employers can verify employees’ driver information with their permission through the following services: • • • •
By post for £5 per enquiry By phone for 51p per minute: 0906 139 3837 By fax for £5 per enquiry Via the Electronic Driver Entitlement Checking Service, which requires organisations to pay set-up costs, an enquiry fee and enter into a contract with the DVLA.
Along with phasing out paper licences, the DVLA is developing a digital enquiry service for businesses that need real-time access to drivers’ information which cannot be accommodated via existing services or an intermediary. The service, Share My Driving Record (SMDR), will only reveal data to organisations that are authorised to see it and that have notified the driving licence holder. SMDR will initially be free, but that could change pending further review. The DVLA decided to initially not charge SMDR users in an effort to mirror drivers’ ability to present such information found on their paper counterpart free of charge to organisations or employers who have a right to view it. Existing services, along with their attendant costs, will remain unchanged. Currently, the DVLA only discloses driver data with the licence holder’s explicit consent. But that could also change—after the abolition of the paper counterpart the DVLA may offer driver entitlement checks without the driver’s consent. Deliberation is ongoing, but data requesters may eventually only need to notify the driver and prove they are accessing the information legitimately. What does this mean for employees? Not much—employees with paper driving licences issued before the photocard was introduced in 1998 should keep their licence. The next time they update or renew their licence, they will only be issued a photocard. After 1 January 2015 licence holders may destroy their paper counterpart—but not before. Employees can check their own driving information by visiting www.gov.uk/view-driving-licence.
Tech support scams rising
A growing number of people are falling victim to computer tech support scams—up to 15 per cent of Britons have been duped so far, according to Microsoft research. The scammers have two main strategies. The first involves scammers setting up fake websites offering anti-virus downloads that are designed to fail on installation. The failed installation alerts users to call a phone number that connects them to the scammers. Then, using a variety of social engineering tactics, scammers trick users into believing their computers have a virus that can only be removed using the scammers’ software. The scammers install their software on the users’ computers or provide users with instructions on how to do so. This software can accomplish several illegal tasks, such as gathering credit card information, tracking users’ keyboard movements or gaining unfettered access to users’ computers.
The second tech support scammer strategy starts with actual phone calls—scammers call victims at home, pretending to be experts recruited to help with a computer emergency. Using fake websites and expert coercion, the scammers make it seem as if they are fixing problems on victims’ computers. Scammers usually charge hundreds of pounds for their services—then things can escalate quickly. After gaining the victims’ trust, the scammers ask to gain remote control of the victims’ computers in order to ‘fix’ the non-existent problems. From there, scammers can install any number of nefarious programs, such as those that track users’ internet histories and compile their online banking information. If you suspect you are being scammed: hang up. Reputable companies do not contact computer users unexpectedly. You can safely assume that any unsolicited communication concerning anti-virus software is illegitimate.
The dangers of Christmas stress Paul, a homeowner in Bristol, was busy getting ready to host a Christmas Eve breakfast for his family and friends. The night before Christmas Eve, Paul put up festive decorations on the inside of his home. Despite being exhausted from his hours of food preparation, he decided to also decorate the exterior of his home. Paul strung Christmas lights around his windows and a few shrubs. He plugged the lights in and went to bed. Early the next morning, Paul was woken by fire service sirens and realised they were outside of his house. He saw flames and
smoke coming from the front of his house and quickly ran outside. The fire service was able to extinguish the fire, but Paul’s home suffered extensive damage. A fire-fighter determined that the fire was started by the Christmas lights, which were old and weathered. Paul was so tired when he was hanging them that he did not take the time to inspect the lights and wiring for any obvious damage. If Paul had taken care of himself and not felt stressed, he could have noticed the damaged lights and avoided this accident.
The content of this newsletter is of general interest and is not intended to apply to specific circumstances. It does not purport to be a comprehensive analysis of all matters relevant to its subject matter. The content should not, therefore, be regarded as constituting legal advice and not be relied upon as such. In relation to any particular problem which they may have, readers are advised to seek specific advice. Further, the law may have changed since first publication and the reader is cautioned accordingly. © 2014 Zywave, Inc. All rights reserved.
bluefingroup.co.uk Bluefin Insurance Services Limited is authorised and regulated by the Financial Conduct Authority.
