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New FCA Reports Shows Another Drop In UK Whistleblowing Cases

The Financial Conduct Authority (FCA) has released disappointing statistics that show how the volume of employees making whisteblowing claims has dropped sharply throughout the finance industry for a second year.

This result is unfortunately not a positive indication that a lower need for UK workers to address wrongdoing in the workplace now exists, but is rather a reflection of how employees feel a lack of support is available to them should they choose to speak out. The amount of high-profile cases reported by the media in recent months certainly indicates no decline in the need for representation, although only few will gain such a level of exposure.

The FCA’s report details how there were 866 reports of whistleblowing in 2016, a downturn of over 20% from the 1105 reports issued during 2015, which in turn was well below the 1367 registered for 2014.

The FCA report also details how just six of the disclosures the organisation received were considered strong enough to actually result in legal action against an employer, despite 108 other claims being initially deemed solid enough for further investigation. This marks another disappointing drop over 2015 when 199 claims were considered to be of value.

Despite a clear decline, the 2016 result remains a vast improvement compared to the whisteblowing figures of a decade ago. In 2007-08 the number of workers speaking out was as low as 140. Increased media coverage for high-profile whistleblowing cases and a greater level of support for UK finance employees has since encouraged workers to make their voices heard. However, the introduction of tribunal fees in July 2013 led to a universal decrease in employment law cases, of which whistleblowing has been no exception.

Another significant factor harming the volume of whistleblowing cases is recent legislation instructing finance companies with assets of at least £250m to employ a senior manager in the role of ‘whistleblowing champion’. Since its introduction in 2015, this position requires a designated employee to give confidential advice to employees who approach them regarding workplace grievances.

All comments made are disclosed in confidence and the manager concerned must as a matter of protocol refer each report to the whistleblowing services of the FCA and Prudential Regulation Authority. An employee is required to speak with this manager before seeking outside guidance, although some exemptions may be possible.

Such an internal assessment is intended to assist workers as part of a system designed to save both employer and employee the costs amassed through outside referrals while eliminating misunderstanding between both parties where possible.

Although it must be considered that this approach may have an opposing effect, as claims made to an outside source with a potentially more balanced perspective may actually be more beneficial to the worker. Nevertheless, the introduction of whistleblowing champions shows how the UK government is prioritising the need to support employee concerns regarding internal business conduct.

It is often suggested that Britain should adopt an approach similar to that of the US, in which whistleblowers are offered financial incentives for making claims. The belief behind this scheme is that workers will be less likely to worry about the consequences whistleblowing might have on their career if they are financially compensated.

However, critics of the scheme believe it will cause a rise in false claims, which defeats the tribunal fee system’s intention to save taxpayer money by reducing false claims. However, others feel that the scheme will make claimants more likely to gain enough confidence to make a claim. This approach has thus far been generally successful in America, with many new claims getting approved for tribunal hearings.

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Mother Suffered Discrimination after Part-Time Return From Maternity Leave

Many mothers resume work on a part-time basis after having children and employers must be very cautious to ensure that they are not subjected to any unfair detriment. In one case, a woman won the right to substantial compensation after her return to the office was blighted by less favourable treatment.

On returning from maternity leave, the software engineer had been made redundant after her manager reneged on an agreement that she would be permitted to leave at 5:00pm each day to pick up her child from nursery. A new role within the company that she could have applied for as an alternative to redundancy was subject to a requirement that she remain at work after 5:00pm.

After she launched proceedings, an Employment Tribunal (ET) found that she had suffered indirect sex discrimination, harassment and less favourable treatment as a part-time worker. Although the redundancy process was not a sham, the ET also ruled that her dismissal was unfair, having been tainted by discrimination.

In rejecting the company’s appeal against those findings, the Employment Appeal Tribunal could detect no flaw in the ET’s approach. The company’s challenge to a finding of direct sex discrimination – which related to an inappropriate comment allegedly made by a manager on hearing of the woman’s pregnancy – was, however, upheld. The reasoning in support of that finding was deficient and the issue was sent back to the same ET for reconsideration.

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Use of Zero Hours Contracts May Fall After Recent Rise

According to figures released by the Office for National Statistics, the total volume of UK workers employed via zero hours contracts has climbed to a new height of 910,000 during 2016. This is a 14% increase over the figures recorded for 2015, with 105,000 additional workers employed this way. This rise is even more surprising given how just 100,000 UK workers were employed via zero-hours in 2005

Zero-hours contracts are often criticised by employment law experts, who believe they reduce worker rights by not guaranteeing regular work shifts and denying workers the same rights as their fully-employed colleagues.

The increase of workers on zero-hour contracts peaked during the first six months of 2016 before slowing down considerably to 0.8% during the second half of the year.

This sudden change from high to low could be the result of a negative reaction by employers against hiring foreign workers in the aftermath of Brexit, which has made it much harder for EU workers to find UK employment. Another potential reason for the drop might be that employers have seen how zero-hours contracts have come under fire at tribunal in recent months.

Sports Direct was widely criticised after tribunal ruled in favour of a worker who claimed its zero-hours arrangements were unlawful. There has also been a rise in tribunals targeting gig economy businesses, such as Deliveroo and Uber, who have lost high profile cases involving employment rights. Many gig economy businesses plan to appeal their rulings, but a successful review looks uncertain after UK plumbing firm Pimlico Plumbers lost its appeal at tribunal in January 2017.

Many popular British businesses have now changed their contracts. Homebase has ceased its reliance on zero-hours employment and JD Wetherspoon has announced that workers on zero-hours contracts can now extend their employment to full employment if they want.

The Resolution Foundation’s policy analyst, Conor D’Arcy, believes this latter cause to be the contributing factor:
‘The negative publicity these contracts have attracted may well have played a role in their slowdown, as firms rethink their use’.

The financial crisis of 2008 was largely responsible for the rise in zero-hours contract usage, as dire employment prospects made workers desperate for work and therefore likely to sign contracts they would have otherwise rejected. Use of these contracts did not diminished even after the UK economy began to recover, as many employers continued using them despite the potential problems they cause workers.

Unite, the UK’s largest Trade Union, is encouraging the government to outlaw the use of zero-hours contrasts. New Zealand has already enforced this.

Len McCluskey, the general Secretary of Unite, the UK’s largest Trade Union, has stated:
‘There are now close to one million people in the UK on zero-hours contracts. That’s one million people with no job security, who are earning less than people in stable work and who, from week to week, do not know what they will have to live on’.

The government recognises the difficulties such contracts present to workers. Last year Theresa May instructed Matthew Taylor, a former policy member of the Blair administration, to undertake a review into how workers’ rights have been compromised by recent employment law, with zero-hours contracts as a key part of the investigation.

Despite the large amount of criticism brought down on zero-hours legislation, some workers actually value this form of employment. Workers within the age bracket 55-64 make up nearly half of the recent zero-hour increase, largely because many older workers are closer to retirement age and purposefully seek less working hours.

The Resolution Foundation acknowledges that there are some workers who feel they benefit from zero-hours contracts, an that a compromise is required so no-one’s rights are challenged. Conor D’Arcy believes the following:

‘For some of these workers, zero-hours contracts may offer a flexible transition from full-time work to retirement, allowing them to top up their income […] The challenge now is to ensure that these still-popular contracts are reserved for cases of genuine desired flexibility for worker and employer.’

Are you employed on a zero-hours contract? Let us know how you feel about using them in the UK workplace.

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Courier Business Criticised For Charging Workers Over Absence

Further shocking revelations regarding the employment methods of Britain’s gig economy, has shown that self-employed UK couriers who deliver goods on behalf of the firm DPD are being made to pay a fee of £150 for each working day they miss due to illness.

DPD is a renowned company that counts many of Britain’s most popular retailers among its clients, including Amazon, ASOS, Marks & Spencer, John Lewis and River Island.

Workers of the firm are speaking out over an unfair system that forces them to work even when they are sick, unless DPD sanctioned cover can be arranged by the worker for the time spent absent.

DPD is part of the global parcel service Geopost, which has a workforce of around 5,000 couriers; many of whom are self-employed and therefore only receive payment when available to work.

Speaking to the Guardian, a worker who choose to remain anonymous said:

‘I said I couldn’t come in because I was too sick and it wouldn’t have been safe for me to drive. He said: ‘Sorry, I have to charge you.’

The company insists the £150 fee reflects the ‘liquidated damages’ accrues during the loss of a day’s work, and that HM Revenue & Customs approved the scheme

DPD amassed a profit of £100m during 2015 and is expected to grow further as online shopping increases in popularity.

The fee system at DPD has been its standard practice for some time, but is only now being widely documented. This controversy of the contract follows months of tribunal hearings in which other gig economy businesses, such as Uber, Deliveroo and City Sprint, have been forced to grant better working rights to their self-employed staff.

One of the most vocal critics of the scheme is Frank Field, chairman of the Commons Work and Pensions committee, who said the following:

“The gig economy is producing wave after wave of evidence on the grim reality of life at the bottom of Britain’s labour market. A group of companies now controls the working lives of an unknown number of people, and yet evades its own responsibilities as employers and taxpayers by labelling those people as self-employed’.

The average DPD courier is paid £200 per day and will not receive payment for the time absent, therefore when combined with the fee, each daily loss totals £350.

A spokesman for DPD defended the company’s decision to collect a fee from its absent workers:

“Franchisees are contracted to provide a service. If they fail to do so, DPD have to fulfil that service and therefore reserve the right to charge the franchisee for the costs involved in doing so.”

This fee system is believed to have been in operation for several years at DPD but is only now being scrutinised. It also stresses how its couriers receive many benefits from the arrangement, including the right to an average annual wage of £37,000 after a year of service.

Like many other gig economy employers, it’s highly likely DPD will experience further analysis of its contracts to determine whether self-employment rights are being compromised, especially as so many reputable retailers rely on the company for deliveries.

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The Trade Union Act 2016 Explained

The Trade Union Act 2016, which makes a number of changes to the way in which industrial action is organised, came into force on 1 March 2017.

The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992, including Section 226 on the requirement to hold a ballot before any trade union action.

Under the new regime, a majority vote in favour of industrial action will only be regarded as having the support of a ballot if at least 50 per cent of those entitled to vote did so. Different rules will apply, however, before industrial action in ‘important public services’ can go ahead. These include the health, fire, transport and border security sectors, plus public education provision to those age under 17. In such disputes, a further test is to be applied whereby 40 per cent of all eligible union members must vote in favour of the industrial action for it to be legal.

An overview of the Act and information on further changes can be found here.

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Rules May Be Rules but Blanket Policies Are Unwise

Some forms of misconduct may appear so serious that dismissal is the only option. However, one case in which a hospital radiographer was sacked for mishandling confidential patient information showed that blanket policies are rarely a good idea and that room should be left for considering each case on its own facts.

The woman had used confidential information in compiling her defence to a disciplinary charge. The manager who summarily dismissed her took the view that she had shown a complete disregard for the importance of patient confidentiality and that, regardless of any extenuating circumstances ‘a breach is a breach’. Her internal appeal against that decision was subsequently rejected.

In upholding her unfair dismissal claim, an Employment Tribunal (ET) noted that she had felt isolated at the time and was unaware that, by taking steps to defend herself, she was breaching patient confidentiality. By his rigid adherence to the rules, the manager had placed himself in a straitjacket and the appeal procedure had been wholly inadequate.

In rejecting the employer’s challenge to that ruling, the Employment Appeal Tribunal could find no fault in the ET’s conclusion that that the woman’s dismissal fell outside the band of reasonable responses to her misconduct. Other issues in the case, including as to whether the dismissal was also wrongful and whether there had been any contributory fault on the woman’s part, were sent back to the same ET for further consideration.

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Whistleblower Finally Wins Case Against HSBC After 13 Years

After thirteen long years a whistleblower has finally prevailed in his case against HSBC banking group. This ruling will lead to a £4 million financial award getting distributed across 6,700 people who previously held credit cards with either HFC Bank or John Lewis Financial Services; both of which became part of HSBC after a merger in 2003.

Solicitor Nicholas Wilson, 59, has been relentless in his goal of pursuing a case against HFC, which he always stated were responsible for mistreating credit card holders who struggle to make payments.

Mr Wilson of Hastings, Easy Sussex always asserted that the HFC’s actions were illegal in regard to dealing with card charges, and although The Financial Conduct Authority (FCA) reviewed his case on a previous occasion, this second hearing ruled that between 2003 and 2009 clients in debts were indeed subjected to an unfair referral in which their debt was increased by 16.4% of the balance amount, which HFC called a “debt collection charge”.

Mr Wilson “lost everything” in his pursuit of justice against HSBC. He lost his job as a solicitor at the firm he worked for, and now repossession of his personal property is underway. He also believes his whistleblowing caused to him being sacked in 2006 by the law firm he worked for. He asserts that major figures of the financial and political worlds “closed ranks” to protect their own interests from scandal.

His case against HSBC began when he worked as a solicitor to investigate whether HFC were unfairly charging customers. His complaint to the Financial Services Authority, the FCA’s predecessor, was rejected as the organisation ruled the issue was outside its authority.

It was only when Mr Wilson later contacted the Office of the Complaints Commissioner with his concerns that the issue was fully addressed. In December 2015 the Commissioner acknowledged the charges and criticised the FCA for showing behaviour of a “negligent” nature that was “bordering on the farcical”.

Under pressure from the Office of the Complaints, the FCA was forced to conduct a deeper enquiry into the HFC’s actions and found that approximately 6,700 HFC customers had paid all or some of the debt collection fee they were unfairly charged for, and were therefore eligible for protection

The FCA has released information of how HSBC has made voluntary plans for a compensation scheme of £4m to be distributed across those customers who have suffered financially as a result of paying “unreasonable” debt collection charges imposed by the bank’s subsidiaries.

This miscalculation has resulted in approximately 350 accounts being overcharged, leading HSBC to announce that “customers will receive redress where they paid more than the actual and necessary cost of collecting their debt.”

HSBC has also promised to credit these customers with an additional 8% interest. A statement has been released:

This is a historical issue, dating back to the period between 2003 and 2009. We have revisited the debt collection charge and, as a result, a small number of HFC and John Lewis Financial Services Limited customers may be due a refund. We will be directly contacting these customers shortly.”

For Mr Wilson, this win does not fully reflect the inaccuracy carried of HFC charges. He believes hundreds of thousands of other customers have also been overcharged, although this has been denied outright by both HSBC and government watchdogs.

Following the tribunal hearing Mr Wilson made the following statement:

After all the abuse and derision about my HSBC allegations, it feels great to be vindicated. But the truth about HSBC is still not acknowledged. There are a great many more than the alleged 6,700 customers. When I left my firm there were 80,000. And that’s just the one firm.”

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Plumbing Firm Loses Appeal In Landmark Gig Economy Ruling

In the greatest victory yet for a gig economy tribunal hearing, a plumber has won an employment rights case for a second time despite an appeal by his ex-employer.

Gary Smith worked as a self-employed plumber for the revered London firm Pimlico Plumbers over the course of a six year period. He took the firm to tribunal in 2011 to challenge his official status as a self-employed worker. After winning his case in 2014, Pimlico Plumbers launched an appeal which was finally heard in February 2017 and again saw Mr Smith win.

This marks a major ruling in employment law, as it is the first major undertaken by an employer of the gig economy to be rejected at tribunal. This loss is not a good sign for other businesses hoping to reverse recent tribunal rulings of a similar nature.

The claim brought by Mr Smith challenged legislation deeming him a self-employed contractor rather than a full employee. Although Smith was VAT-registered and paying tax in accordance with self-employed regulations throughout his six years at Pimlico Plumbers, he did not work for any other business during that time. He claimed this was due of a contract agreement that made him “tightly controlled” by the firm, and therefore found it it difficult to seek additional employment.

After Mr Smith suffered a heart attack in 2010 he requested the business reduce his working hours from five days a week to three. Pimlico refused and Mr Smith was allegedly dismissed shortly afterwards because of this.

Pimlico Plumbers founder, Charlie Mullins, disputes the claim, saying that workers are hired on a self-employed basis with a generous fee of £80,000, for which the company in return expect workers to provide their own materials for their daily job duties .

Pimlico Plumbers is one of the most prestigious plumbing businesses in Britain, having acquired a value in the region of £75 million since Mr Mullins, a prominent Tory Party donor, founded the company 45 years ago.

Mr Mullins expressed relief that gig economy law is now being clarified for employers. He claims Pimlico Plumbers has benefited from the change and joked “Like our plumbing, now our contracts are watertight.”

Key businesses of the gig economy like Deliveroo, Uber and City Sprint have been in the spotlight recently in publicised cases launched by employees with concerns over their status as a self-employed worker, and what the expected duties of this should involve.

Each of these businesses has lost at tribunal, resulting in Deliveroo having to pay all self-employed staff the minimum wage, City Sprint needing to pay self-employed workers holiday pay, and Uber no longer being able to class workers as self-employed at all.

Lord Justice Underhill, a Court of Appeal Judge at the Pimlico ruling, believes employers should not accept the result as an indication of forthcoming legislation for the gig economy: “They should be careful about trying to draw any very general conclusions from it” he said.

A team of legal experts has been commissioned by government officials to determine a fair criteria for the expectation of gig economy workers. The investigation will be led by Mathew Taylor, the chief executive of the Royal Society for the Arts.

Issues for the team of analysis will include issues of pay during periods of holiday, sickness and maternity leave, and issues of pension employment and job security. The findings are due for publication later this year.

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Report Into Tribunal Fees Leads To Widespread Criticism

A much anticipated government report into how tribunal fees are affecting the volume of tribunal cases instigated by UK workers has at last been published, and, as suspected, it shows a major decline has occurred since the introduction of the fee system in July 2013. This follows a TUC report issued last year that also showed serious failings by the fee system. 

Without access to a fair hearing, workers have instead explored other means of expression. The report details how the ACAS conciliation service has seen a major rise in workers contacting them for advice on various employment disputes over the past four years. This reveals that a third party outlet where workers can express their concerns is clearly needed.

Unison trade union has condemned the current system as ‘ill-judged’ and believes it has fallen short of its goal of saving taxpayer money by reducing the number of false claims put forward each year. In actuality the system has only served to make those seeking justice for genuine grievances less likely to reach out for help due to excessive costs.

Dave Prentis, general secretary of Unison, expressed support for the report findings: “The introduction of fees was a terrible decision […] Tribunal fees should be scrapped immediately before any more law-breaking employers escape punishment because wronged workers simply don’t have the cash to take them to court.”

The report also recorded how a significant decrease in claims occurred between 2012-14, which is well below the numbers expected. There was a 70% drop from 5,847 to 1,740 cases recorded.

Most troubling of all is the kind of cases that have diminished. Disability discrimination cases are down 51%, race discrimination hearings have fallen by 55%, and sex discrimination cases have dropped 71%. Statistics show that low-paid women have been the group to have suffered more than any other under the fee system.

Increasingly there are calls for current tribunal fees, which can be as high as £950, to be altered. One of the most vocal opponents is Frances O’Grady, the General Secretary of TUC, who states:

Charging people up to £1,200 to take claim has been a gift to Britain’s worse bosses. And it’s allowed discrimination at work to flourish unchallenged. Until the government commits to abolishing fees, its commitment to ‘improve workers rights’ in post-Brexit Britain looks pretty hollow.”

Reacting to the report, ministers have already made a list of suggested alterations in a bid to ensure all workers make their voices heard across Britain, regardless of their background or financial status.

Among these proposals is a monthly threshold for a full fee remission rise, from £1,085 to £1,250. This is an amount that better reflects the income of workers earning the national living wage. Other suggestions include giving financial assistance to workers who live with a partner and/or children .

Leader of Unite, Len McCluskey, has expressed his organisation’s feelings towards the report: “The actual facts are that when working people are priced out of justice, and it is made exceptionally difficult for their unions to pursue it on their behalf, then the only winners are bad employers.

In contrast to those who seek an outright removal of the fee system, Justice minister Sir Oliver Heald reacted to the report’s findings with a mixed opinion: 

Sir Heald also revealed that to prevent the loss of tribunal hearings, the existing Help With Fees system will henceforth receive greater government support, and that a green paper will be issued to establish the legal rights involved.

Unison plans to challenge the fee system in a hearing before the Supreme Court on 27 and 28 March 2017.

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Inventive Employees and Exceptional Rewards – Court of Appeal Test Case

Companies are entitled to reap the benefits of their employees’ inventiveness – but patent law does require compensation to be paid to those whose ideas make an outstanding contribution to profits. In an important test case, the Court of Appeal analysed the circumstances in which such exceptional rewards are justified.

A professor employed by a global company had invented a blood glucose testing device that, after it was patented, generated benefits worth £24.5 million to his employer. Part of his work in developing the device had been carried out in his own time and it had been produced at almost no cost to the company. He argued that his invention had brought an outstanding benefit to his employer and sought compensation pursuant to Section 40(1) of the Patents Act 1977.

His claim was, however, rejected by a hearing officer appointed by the Comptroller-General of Patents and that ruling was subsequently confirmed by a judge. Amongst other things, the hearing officer noted that the profits generated by the device were dwarfed by the company’s overall multi-billion-pound turnover.

In seeking to re-open his case, the professor pointed to the great disparity between the level of his remuneration and the profits yielded by his invention. No other single patent had achieved an equivalent rate of return for his employer. Had he worked for a smaller company, the outcome might well have been different and his employer had, in effect, been found to be ‘too big to pay’.

The Court accepted that it would be wrong to focus solely on a simple comparison between the benefits generated by the invention and the company’s overall profits. In dismissing the professor’s appeal, however, it found that the hearing officer had taken all relevant matters into account before concluding that the outstanding benefit test was not satisfied in the context of the company’s overall performance.