July 2024 Employment Law Newsletter | Consensus HR – Herts, Beds
Welcome to our latest July 2024 Employment Law Newsletter | Consensus HR – Herts, Beds. In this newsletter, we focus on:
- Poultry Workers travel time not ‘working time’
- Improved workplace provision for those menstruating
- Generative AI is not replacing jobs
- Subject Access Request (SAR) denial upheld where there is a risk of intimidation
- Commenting on colleagues appearance could count as sexual harassment
Poultry workers travel times not ‘working time’
In Taylors Service Ltd (dissolved) and another v The Commissioners for HM Revenue and Customs [2024] EAT 102, the Employment Appeals Tribunal (EAT) held that time spent ‘just’ travelling was not ‘time work’ for the purposes of regulation 30 of the National Minimum Wage Regulations 2015, and nor could it be deemed to be ‘time work’ under the exception for travel time in regulation 34.
Time work is defined as work outside of salaried work for which a worker is entitled to be paid. Travel time between jobs or business locations can be treated as time work. However, the following is not classed as time work:
- Travel between the worker’s home and their usual place of work.
- Travel between the worker’s home and an assignment.
In this case, Taylors Service Ltd (TSL) and Taylors Poultry Services (TPS) engaged workers on zero hours contracts and supplied them to the poultry industry. The companies provided a minibus that would collect the workers from their homes (or occasionally from their business premises) and transport them directly to their first assignment. On top of a normal working day, these journeys could be up to eight hours long. The workers were paid £2.50 per hour.
In 2020, HMRC decided that the time workers spent travelling to and from farms around the country should be reimbursed at the NMW and issued Notices of Underpayment totalling around £62,000 of wage arrears, plus penalties. TSL and TPS had their claim against the wage arrears dismissed in the Employment Tribunal (ET). However, the EAT overturned the ET’s ruling, citing the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2021] UKSC 8. In this case, the Supreme Court held that care workers who were expected to sleep at, or near, their workplace, and be available to be called on during the night, were not entitled to the NMW for their entire sleep-in shifts. When workers were sleeping, they were not working; rather they were ‘available to work’. The EAT, having examined the Supreme Court’s reasoning, stated that time spent travelling to work could not be classed as working unless there was work to be done whilst travelling.
The EAT recognised that this decision may be unfair as the workers had no choice but to travel long distances if they accepted specific assignments; however, it was for Parliament, not the Courts, to amend any defects in the legislation.
Improved workplace provision for those menstruating
A study by Heriot-Watt University, which reviewed evidence on menstrual health and conducted 55 interviews, revealed that menstruation remains a significant cultural taboo in many workplaces. The research highlights that women, trans and non-binary people who menstruate face challenges, including poor access to toilets and washing facilities, and pain and mental health symptoms.
The study calls for line managers to be educated on the topic, the introduction of menstrual health education programmes, and for menstrual products to be made available in all workplace toilet and bathroom facilities.
Generative AI is not replacing jobs
Putting to rest fears of mass unemployment (for now), research by Nash Squared, a global provider of technology and talent solutions, found that whilst 74% of UK tech employers have incorporated generative AI into their business to some extent, 51% say that it is used as a productivity tool to support existing jobs, with 99% stating that it will not replace employees.
Subject Access Request (SAR) denial upheld where there is a risk of intimidation
In Harrison v Cameron and other [2024] EWHC 1377 (KB), the High Court upheld a Controller’s refusal to name people recorded in a heated telephone conversation in response to a SAR. This was because there was a significant risk of the SAR requester intimidating the recipients of the recording.
Commenting on colleagues appearance could count as sexual harassment
The ET has ruled that telling a colleague they look “nice” could be sexual harassment. According to The Telegraph, a senior lawyer made such a comment to a legal secretary at his law firm before asking her “Am I allowed to say that?”.
The comment was found by the ET to be a sexual one which created an “intimidating” environment for the Claimant who described feeling “violated”. Although it did not on its own breach any employment laws, taken alongside other incidents of ‘unwanted conduct’, it could result in an employee making a successful ET claim.
This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein’.
Our HR Comment / Advice: – March 2024 Newsletter | Consensus HR | Herts, Beds, UK
Matthew Chilcott, FCIPD, ACEL, Owner of Consensus HR comments: – “April 2024 sees a number of Employment Law Changes across a range of areas, and it is important that businesses keep up with the changing of Employment Law so that they are always working to best practice for the benefit of the team and success of the business. At Consensus HR, we ensure that all our monthly retained clients who have invested in an Employee Handbook for their team and business continually have their copies updated and recommend that all members of the team are briefed on the changes, generally through the use of the fully interactive HR IT system.”
