23rd February 2017
By Andrew Knorpel, Partner and Head of Employment.
Not an examination of the proportion of female plumbers in modern society, but a quick journey around the last few weeks’ updates on issues reported in our previous bulletins.
Firstly, plumbing. After successful claims in the Uber and Citysprint cases by individuals asserting that they are workers, a former Pimlico Plumber has also succeeded in persuading the Court of Appeal that he too was a worker, rather than self-employed (Pimlico Plumbers Ltd and Mullins v Smith). Although Mr Smith had signed a contract in which he was designated an independent contractor, the court upheld the Tribunal’s finding that certain factors made him a worker. These included him having to work a minimum of 40 hours a week, being subject to a three months post-termination restriction prohibiting him from being a plumber in Greater London, driving a PP branded van and wearing a PP uniform. The Tribunal had found that these factors outweighed other factors often indicative of self-employed status. Essentially, Mr Smith was an integral part of PP's operations and subordinate to PP, rather than PP being a client or customer of Mr Smith's business.
Secondly, gender. After the publication of revised gender pay gap Regulations due to come into force on 6 April 2017, Acas and the Government Equalities Office have published draft non-statutory guidance to support the introduction of the new legislation. The guidance explains what the gender pay gap is and sets out possible causes for it. As well as providing stage-by-stage information on how to comply with the new Regulations, the draft guidance also recommends putting in place an action plan to deal with addressing any gender pay gap which may be identified. However, a few unsolved issues remain, such as precisely how to deal with overseas staff (as inclusion may pose currency conversion issues and potential jurisdictional risks to the business in the future) and non-executive directors (who may or may not be workers). As we have previously recommended, the provision of a separate narrative is likely to be an essential part of every organisation’s publication scheme under the Regulations, perhaps (for instance) shedding light on how the timing of bonus payments or exercise of share options has distorted the reported pay gap.
And finally, data. When it comes to disclosing data in response to a subject access request, organisations are understandably frustrated at having to spend significant time and resources locating, collating, reviewing and providing information to a data subject. We previously reported that a case held that disclosure was not required where it was not reasonable or proportionate to carry out the search for personal data. However, we warned that that taking such a position is risky and the Court of Appeal has just reversed that decision and ordered disclosure (Dawson-Damer v Taylor Wessing LLP). It held that it was not sufficient to simply assert that it is too difficult to search through significant amounts of documentation. It also held that the data subject’s intention of using the requested documentation in litigation was irrelevant to deciding whether it should be disclosed.
The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2017.
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