Category Archives: Legal Issues

Trade Union Act – Consultation

Here is a copy of the UNISON member consultation on the Trade Union Act’s changes to the way members joining unions intentions regarding the political fund are captured.

 The changes will be that a) all new members must actively opt-in to the political fund (whereas they have to opt-out now) and, b) unions will have to remind members annually of their right to opt-out. The implementation date for these measures is 28 February 2018.

If once you have review the document and its questions in appendix 1, send any feedback, queries or answers/thoughts to the Branch office.

 

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Social Workers Overwhelmingly Oppose the Government’s Social Work Reform Plans

A major UNISON survey of 2,858 social workers has revealed that they reject key aspects of the Government’s proposals to reform the sector.

In August and September UNISON social worker members in England were asked tohand-cut-outs complete a survey which asked for their views on the government’s reform proposals contained in their Children and Social Work Bill.

The findings have now been published in this report.

The headline results are:

  • Just 1% of social workers believe that the proposals put forward by the government will address the main concerns that they are facing.
  • Just 10% of social workers think local authorities should be able to exempt themselves from children’s social care legislation, which the government believes will allow for social workers to achieve better outcomes for service users.
  • 69% of social workers believe that allowing local authorities to exempt themselves from children’s social care legislation will lead to more children being placed at risk. Only 8% of social workers believe that it won’t lead to more children being placed at risk.
  • 90% of social workers believe that they should be regulated by an independent body rather than directly by the government.
  • 96% of social workers believe that private companies should not be allowed to take over the running of social work functions from local authorities. Only 1% said they trust the not to privatise social work services.

These findings represent an overwhelming rejection of the government’s proposals.

The Government has already indicated that it will no longer require social workers (adults, children’s and mental health) to be directly regulated by them but it is still pressing ahead with the other controversial aspects of the Bill.

The Bill is being debated by the House of Lords on Tuesday the 8th of November but will be debated by the House of Commons in the coming weeks. Please encourage your members contact your local MP and ask them to speak out about the dangerous aspects of the Government’s Children and Social Work Bill.

Instead ask them to call upon the Government to:

  • The Bill is being debated by the House of Lords on Tuesday the 8th of November but will be debated by the House of Commons in the coming weeks. Please encourage your members contact your local MP and ask them to speak out about the dangerous aspects of the Government’s Children and Social Work Bill.
  • The Government has already indicated that it will no longer require social workers (adults, children’s and mental health) to be directly regulated by them but it is still pressing ahead with the other controversial aspects of the Bill.
  • Abandon the dangerous and controversial elements of the Bill which allow local authorities to exempt themselves from important statutory duties towards children.
  • Agree to meet with a range of frontline social workers and their representative bodies to properly discuss how the challenges facing social work can be overcome.
  • Listen to the views of looked-after children, their families and supporters to learn about their experience of social services and related support.
  • Invest more resources into supporting social work services across England.
  • Ensure that social workers continue to be regulated independently.

 

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Exit Payments in the Public Sector

As part of its attack on public sector workers, the government has introduced a setpublic-secotr of changes to exit payments (including redundancy payments) in the public sector – each set of proposals goes further than the last. All fly in the face of local, and even national, collective agreements, some agreed at the highest levels of government. Some of the proposals will mean re-opening regulations on pension entitlements, breaching the commitment not to alter public sector pensions for 25 years.

UNISON have produced a document which outlines the proposed changes and what they mean for members’ terms and conditions of service. You can view the document here.

 

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Employment Law and Brexit

hammerThe government have released a House of Commons briefing which outlines what the implications might be for employment law following Brexit. You can view the document here.: brexit-employment-law-briefing

Some EU rights – like Equal Pay – have direct effect, meaning that individuals can rely directly on EU law. Leaving the EU would effectively cancel such rights.

Another area of concern are ruling made in the European Court of Justice. These again can be relied on by workers in this country to enforce workers’ rights. Once we leave the EU employers will potentially be able to re-litigate decisions that did not go in their favour and try and change the case law.

The government is going to introduce a Great Repeal Bill next year which will bridge Brexit and, they claim, amalgamate EU and British law. It worth having a read of Theresa May’s Tory party conference speech extract on page 6 where she unambiguously says existing workers’ legal rights will continue to be guaranteed in law, but checks this with “as long as I am Prime Minister.”

 

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Attack on Freedom of Expression

The government’s new Trade Union Bill contains numerous attaches on the trade unions. One clause the media have not really discussed is that the government will deamnd 14 days notice form trade unions if they intend to use social media during strikes. Trade unions will also have to tell the employer and government what their blogs etc are going to say.

The institute of Employment Rights director, Carolyn Jones, said, “This would be laughable if it wasn’t Orwellian. Workers have the rights of privacy and freedon of expression – nowadays technology is a 21st century weapon against employers’ Victorian practices.”

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Changes to Tax Credits Thresholds and Tapers

The government’s Summer Budget announced changes to the tax credit threshold (above which tax credits are reduced) and an increase in the taper (the rate they are reduced by) from April 2016.

HMRC says “For people entitled to WTC the threshold is £6,420 a year. People with annual income at or below this threshold will receive the maximum award to which they are entitled.

Those with income above the threshold will have their maximum award reduced by 41p for every pound of income above the threshold.”

This is how the threshold and taper system works today.

The threshold is being reduced from £6,420 to £3,850 and the taper increased from 41p to 48p.

In work Child and working tax credit entitlement graph

UNISON has calculated the impact of these changes on different types of household using the NJC pay scale and the spreadsheet can be downloaded here

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Sleep-ins and the National Minimum Wage

Last year a key legal judgement established that sleep-ins carried out by workers should be included in calculations for the National Minimum Wage (NMW).   This means that members, and potential members, who do ‘sleep-ins’ and are low paid may be entitled to a pay rise and potentially back pay.

The Whittlestone EAT judgement has established that sleep-ins are covered by the National Minimum Wage (NMW) regulations. So even if a worker is allowed to sleep at work, if they are required to stay at their workplace, then all their hours are covered by NMW regulations.

This means if any worker is paid – on average – less than the NMW over their pay reference period, they will be entitled to a pay rise to ensure NMW compliance. They may also be able to pursue a claim for back pay. However, because working patterns vary enormously between individuals; this will need to be considered on a case-by-case basis.

UNISON is aware that the introduction of the NMW Regulations 2015 led some employers to think that this meant that they now did not have to pay for sleep-ins (reversing the Whittlestone EAT judgment), however this is not the case

The new NMW Regulations 2015 are consolidating regulations and therefore the legal position from the Whittlestone EAT judgement remains unchanged and “sleep-ins” continue to be covered by the NMW.

Each case will need to be looked at on an individual basis, however the starting point is to look at the nature of the work being undertaken by the member. Does the worker have an obligation to be physically present at their workplace? For example, what would happen if they left – would the worker be disciplined?.   If they would be disciplined or they are otherwise prevented from leaving then case law suggests that the time spent at work, whether awake or asleep, is subject to NMW compliance. This is because being present is work in itself.

It may be that the worker is able to sleep (as Ms. Whittlestone was able to) for most of the night but the relevant issue is that the worker could not simply be absent for one night or part of a night and that their physical presence is required.

The sections which appear to be causing concern for employers (reg. 27 (2) and reg. 32(2)) only come into play where it can be shown that the worker is available for work (but not actually working) and qualify the situations in which payment must be made (i.e. when the worker is woken and carries out duties).

These would be circumstances where the individual was genuinely “on-call”. For example if a worker was required to sleep on the premises, but could come and go as they pleased (they are under no obligation to be physically present), this would be categorised as “on-call”. Our experience suggests that this would be an unlikely scenario in the care sector. It is more likely to be relevant in the service industry where people may live above a pub for example.

UNISON’s position is that someone who is required to be present (awake or asleep), and who is not permitted to leave the premises during their shift or sleep in is working rather than available for work so the qualifications in reg. 27(2) and reg. 32(2) do not apply.

The law is a useful tool in pushing employers to change current arrangements, and potentially for back pay claims. We will support individual members’ legal cases where they are assessed as having reasonable chances of success.

 

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