Employment Law Training Institute of Agricultural Secretaries and Administrators The Pavilions, Yorkshire Showground Tuesday 22 May 2018 Julie Dalzell and Adrienne Patterson

Employment Status Employment status categories Key rights for employees Key rights for workers HMRC and Employment Tribunal tests of employment status Recent cases on status Proposals for change: the Taylor Review

Employment Status Categories Employee an individual who has entered into or works under a contract of employment Self employment those who are in business and providing their services via a limited company, sole trader or partnership arrangement to customers and clients Worker an individual who has entered into a contract to do or perform personally work or services for another party whose status is not a client or customer of any business carried on by the individual

Key rights for Employees These include: Not to be unfairly dismissed To written particulars of employment To an itemised pay statement To guarantee payments To payments on insolvency To family and dependants leave To pay during periods of medical suspension To a redundancy payment

Key rights for Workers These rights include: Entitlement to paid annual leave (Regulation 13 WTR 1998) Protection from unlawful deductions from wages (section 13, ERA 1996) Protection from discrimination (section 39, EQA 2010) National Minimum Wage (Section 1 National Minimum Wage Act 1998) Right to be accompanied to disciplinary or grievance hearing (Section 10 Employment Relations Act 1999) Protection from making a protected disclosure (whistleblowing) (Part IVA ERA 1996) Protection under the Data Protection Act 1998 (Data Protection Act 1998) Right to pension contribution from employer under the auto enrolment scheme (Pensions Act 2008)

Status Tests There is a similar approach taken by HMRC and the Employment Tribunals to determining status. The difficulty for the engager is that an individual who is regarded as self-employed for tax purposes will not necessarily be regarded as an employee for unfair dismissal or redundancy purposes. The NICs deeming rules Tax and the agency rules The contract Case law HMRC guidance

Recent Cases Pimlico Plumbers v Smith [2017] EWCA Civ 51 Uber v Aslam, Farrar and ors (UKEAT/0056/17/DA) Clyde & Co v Bates van Winkelhof [2014] UKSC 32 The Hospital Medical Group v Westwood [2012] EWCA Civ 1005 King v The Sash Windows Workshop Limited [2017] CJEU C‑214/16

Proposals for Change New laws aimed at bringing the certainty for all parties, which is presently lacking, to end Workers to be renamed “dependent contractors” and classified as employees for tax purposes Dependent contractors to have entitlement to SSP Employees and the self employed to pay the same rate of NICs Those engaging self employed to pay a sum equivalent to employer NICs Self employed become entitled to same state benefits as employees

Tied Accommodation Rent (Agriculture) Act 1976 Protected Agricultural Occupancy Tenancies commencing prior to 15 January 1989 (or succession) Qualifying Worker - employed in agriculture for minimum 91 out of last 104 weeks (including previous employment) - 1 week = 35 hours or more (including sickness and holiday) Property in Qualifying Ownership – owned by employer/arrangement Relevant licence or tenancy – exclusive occupation and separate dwelling

Tied Accommodation End of Employment - Statutory Tenancy - Fair rent Termination of Tenancy - Death (if no successor) - Vacation of property if no intention to return - Rent (Agriculture) Act 1976 – grounds for possession Application for Rehousing

Tied Accommodation Housing Act 1988 Assured Agricultural Occupancy Occupancies commencing after 15 January 1989 Qualifying Worker Property in Qualifying Ownership End of Employment – Statutory periodic Tenancy, market rent Termination of Tenancy – statutory grounds Application for rehousing

Tied Accommodation Assured Shorthold Tenancies Can be used where worker would otherwise qualify for an assured agricultural occupancy Right to possession at the end of the agreed term Required conditions - must serve notice in prescribed form prior to tenancy commencing - must be rent of more than £250 per year - must give at least 2 months’ notice for repossession

Wages Agricultural workers employed in England before 01.10.13 are normally entitled to; Minimum rates of pay which may be higher than the NMW Paid holiday Agricultural sick pay Pay even if bad weather stops work Night work pay On-call allowance 30 minute rest breaks, if they are 18 or over and work more than 5.5 hours a day

Wages (cont’d) From 1 October 2013, the terms and conditions changed for agricultural and horticultural workers in England who begin new jobs; they must receive at least: National minimum wage or national living wage Other statutory minimum terms of employment

Working Time Regulations Rest Breaks – remember H&S risk assessments (http://www.hse.gov.uk/agriculture/hsagriculture.htm) Calculating holiday pay 5.6 weeks holiday (28 days for full time employee) Pro-rated for part-time workers Can include bank holidays Overtime Hourly rate  

Eligibility to Work Carrying out right to work checks correctly can provide an employer with a statutory excuse against a civil penalty for employing a person illegally if it transpires that the employee does not have the right to work in the UK during the employment. Right to work checks Who, When, What, Why? Obtain original versions of acceptable documents Check that the document is genuine Make Copies of the documents Civil penalty – maximum penalty of £20,000 for each illegal worker Further guidance available from Home Office  

Any questions? Thank you for attending Adrienne Patterson, Manager Agriculture apatterson@jacksons-law.com Julie Dalzell, Senior Associate jdalzell@jacksons-law.com A