Reed Employment PLC –v- HMRC

By Squire Patton Boggs on Posted in Tax

For any employer the ramifications of the Upper Tier of the Tax and Chancery Chamber upholding the decision of the First Tier in Reed Employment PLC –v- HMRC are worth consideration. You will remember that Reed provided daily travel and subsistence for 500,000 of its temporary workers under a salary sacrifice arrangement over the period 1998-2006. HMRC were claiming £158million of unpaid PAYE and NICs over this period on those allowances.   

The Tribunal concluded that the salary sacrifice was not effective because in reality no salary was actually sacrificed and no benefit was actually received by the worker (this was all a result of a complex scheme used by Reed to deliver the ultimate benefit to themselves). Additionally the Tribunal found that that in reality the temps worked at a series of job-by-job locations and not under an “overarching contract” of employment with the result that the travel expenses were to a permanent workplace and were therefore not deductible and so were in fact part of the worker’s wages which nullified the effect of prior dispensations granted by HMRC on the arrangements.   

There have been murmurings that this case spells the end for salary sacrifice arrangements.    

This is surely not the case and therefore worth a quick blog post! What Reed does of course prompt is a sanitation check of any existing salary sacrifice arrangements, ensuring that they are valid as well as a review of any prior PAYE dispensations paying particular attention to the level of disclosure given when the dispensation was originally applied for and approved by HMRC. You can imagine the scrutiny that all the paperwork came under before the Tribunal in this case.  If anything less than full disclosure of the relevant arrangements was made at the time, HMRC may well be able to use this to invalidate its original consent, as in Reed.   

If a salary sacrifice arrangement is to be effective for tax purposes an employee must actually (contractually) agree to work in the future for the reduced salary (and understand the arrangements which are communicated in a clear manner) and additionally the employer must provide some other identified benefit to the employee in a form that is not readily convertible into cash. As in Reed it will not be effective if there is any opportunity for the employee to opt out of the arrangement at will. It is vital that any documentation is robust and that all employees fully understand the implications of the salary sacrifice.   

Reed Employment have already expressed disquiet about this decision, accusing HMRC of going back on a previous concession, so no doubt we will see an appeal on this £158m question before the end of the summer.

Dyson exposes vacuum in Home Office’s position on visas for non-EU graduates

By Annabel Mace on Posted in Business Immigration

Sir James Dyson has told Sky News that Britain’s immigration rules are “sheer madness” and counter-productive to the country’s economic ambitions.  In his view, the UK is not doing enough to make non-EU undergraduates studying science and engineering feel welcome and they should be allowed to stay in Britain on qualification rather than have to go home to compete with the UK instead.  

The Home Office has now responded:  

“There is no limit on the number of graduates who can stay in the UK, as long as they get a graduate level job paying a graduate level salary…..Students are given four months in the UK after the end of their course to find a job. This is plenty of time for scientists and engineers whose skills are in high demand…….We changed the rules to stop the widespread abuse of the student system – where low quality students would take low skilled jobs just to stay in the country….What we have done instead is build a system that works in the national interest – attracting and retaining talented students and workers to ensure Britain succeeds in the global race.”  

But with respect, this response is only half the story.  Sir James is right, current immigration policy is preventing us from retaining much-needed skills that have been acquired and developed in this country, and here’s why:  

The only real option for non-EU students after completing a recognised UK degree is a visa category known as Tier 2 (General). Other options such as Tier 1 Graduate Entrepreneur or Exceptional Talent are not sufficiently accessible to most students.   Whilst switching immigration status from student to Tier 2 (General) is made easier by the fact that the employer is not required to advertise the role in question to show that no suitable resident worker can be identified, this route is not nearly as straightforward as the Home Office is making out.   

In order to get a Tier 2 (General) visa, a non-EU student who has completed a recognised UK degree must first find an employer with a Tier 2 sponsor licence who is willing to commit to sponsoring him.  Whilst most of the UK’s larger (and many smaller) employers will already have such a licence, the onerous administrative and compliance duties deter many businesses from the sponsorship process and talented non-EU students will be turned away as a result.     

It is the case that non-EU students in the UK have around 4 months following completion of their degree during which they can work until their student visas expire but these graduates cannot fill a permanent vacancy prior to being sponsored under Tier 2 (and, in this case, ‘permanent’ is determined by the nature of the work being carried out rather than the type of employment contract issued).  In practice, this means they cannot start work during this 4 month window in an engineering (or other skilled) role which is intended to be permanent in the hope of their employer agreeing to sponsor them after a trial period in that role; they must be sponsored under Tier 2 from the outset.     But in many cases, employers will not be willing to invest in the Tier 2 process at such an early stage in the employment relationship and, faced with uncertain job prospects as a result, highly skilled non-EU students will simply choose to work elsewhere when they have finished their UK degrees.    Perhaps the Government is right to say that this is technically their choice, but it is pretty hard to criticise them for making it in those circumstances.   

The solution to the issue raised by Sir James Dyson is very simple – reinstate two visa routes which are now closed to new applicants – Tier 1 (General) and Tier 1 (Post Study Work).  These categories enabled the highly skilled and those with a recognised UK degree to obtain work visas in their own right without an employing sponsor.  And if the Home Office’s concern that ‘low quality students would take low skilled jobs just to stay in the country’ is justified, then the rules for these Tier 1 visas could easily be adjusted to ensure that they could only be used for working in skilled roles.  But the Home Office has made it very clear it has no plans to re-instate these visas. At a recent policy update, Philippa Rouse, Head of Customer Strategy and Insight at UK Visas and Immigration, suggested that non-EU students “have plenty of options” for being able to work in the UK following completion of their studies.  In reality, this just isn’t correct for the reasons set out above.    

Unfortunately for the UK, the USA, Australia and Canada have all found it possible to offer post-study work visas of at least 12 months without the need for a sponsoring employer.  Given these options, it’s no wonder that UK is now far less attractive for talented non-EU students considering where to complete a degree and join the world of work (see also our 3rd February post on this topic https://www.employmentlawworldview.com/is-britain-kicking-out-bright-foreigners/.

EAT examines apparent bias in UK Employment Tribunals

By David Whincup on Posted in Litigation

Are you neither complacent nor unduly sensitive or suspicious?  Are you fair-minded, informed and balanced?  Do you often catch buses in Clapham?  In that case, the Employment Tribunal has just the job for you, a role integral to the administration of legal justice, though sadly not paid very well, or indeed at all.   

If you have these qualities then you are officially  the sort of member of the public who can safely be relied on to decide when a particular set of facts might reasonably be said to create a public perception of the risk of bias, conscious or unconscious, in Employment Tribunal panels.  Here is a test: is there such apparent bias where the Employment Judge hearing a claim turns out afterwards to be the father of a partner in the firm representing one of the parties, in circumstances where that partner is accepted as having no actual involvement in that case?   

This was the question considered by the EAT in Martin & Others –v- South Lanarkshire Council in its decision last month.  Mr Martin was one of three employees alleging unfair dismissal by the Council.  The claims arose out of similar but not identical circumstances but while two of the Claimants were unsuccessful, Martin (represented by the firm in question) succeeded.  The Council appealed on the grounds of apparent bias by the Employment Judge as a result of his familial connection with Martin’s lawyers.   If that were upheld, the whole case would need to be reheard, no doubt at substantial cost and inconvenience to the parties.   However, that is not a relevant consideration when looking at whether there is scope for the perception of the risk of bias.  The law in that respect has not moved on much since a 1919 case which said that “The importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the Judge ……. is so grave that any small inconvenience experienced in its preservation may be cheerfully endured”.  Of course, both “small” and “cheerfully” are relative terms, and easy for the Judge to say since he’s not paying for it.   

In Martin it was accepted that the decision to uphold the claim had been unanimous, and also that the case was funded by insurers such that the lawyers would be paid the same irrespective of the outcome.  In addition, neither the other two Tribunal panel members nor the assorted legal representatives who had appeared in the initial hearing had detected any grounds for complaint of bias at that time.  The threshold for alarm bells about bias was also seen as having moved perceptibly from 1919’s “anything which can even by remote imagination infer” to a more pragmatic “real risk”.   

The EAT concluded that there had been no actual bias, since its analysis of the Tribunal’s arguments for upholding only Martin’s claim of the three showed no faults.  Applying the test of whether the informed and impartial observer would decide that there was a “real risk” of bias, the EAT concluded on balance that there was not the degree of personal interest by the Judge in the outcome of the case necessary to allow that conclusion.  However, it did nonetheless deliver a stinging clip round the ear to the Employment Judge, though in the immensely veiled way for which the EAT is justly renowned: “We did take the view that it might be best practice for any Judge to advise parties of a family connection such as offspring in the current situation”.  Ouch.

Brevity not the soul of wit for new Acas Code on Flexible Working

By David Whincup on Posted in Flexible Working, Legislation, Wage and Hour

Acas has now issued its draft Code of Practice on “Handling requests in a reasonable manner to work flexibly” (sic).  This anticipates the coming into force on 30 June this year of a general eligibility to request flexible working and the replacement of the old rigid procedures with a blanket obligation on the employer to handle those requests “in a reasonable manner”. 

The statute contains no clue as to what “a reasonable manner” might look like, hence the Code.  Unfortunately this is so sparse as to be next best thing to useless, just two pages of large-font print.  This tells the employer that it “should consider the request carefully“, though at the same time says that references to “should” mean that it is not a legal requirement.  However, since you cannot realistically handle a requirement reasonably without even considering it, that advice seems not just unnecessary but wrong – you must consider such requests and be seen to do so in an open-minded way.  I still have the scars from an early flexible working claim under the old regime in which the commendable frankness of my respondent witness led him to describe his immediate reaction to a male employee’s flexible working request as “Nice try, Sunshine”.   In consequence, even though the request was so impracticable as to border on the actively mischievous, we lost.  

The Code comes accompanied by Guidance, a more significant 18 pages containing some actually quite useful ideas for employers, together with an utterly deplorable volume of grammatical and punctuation errors.  Maybe there was simply not room enough for these in the Code.

The Guidance includes suggestions for the content of a flexible working policy, and in particular that employees should feel free to request (and employers to grant) temporary and/or trial arrangements, perhaps to cope with a bereavement or to take a study course.  This represents a welcome departure from the assumption under the old regime that a flexible working alteration to terms of employment was permanent. 

A bit of a curveball appears almost as a throwaway line in the Guidance, which is not then expanded on in the text or the Code.   Among matters which the employer might consider, it says, is “the possible impact [of granting a request] upon other employees’ requests for flexible working“.  This strikes me as misguided if it refers either to requests already made and resolved or those yet to be made.   If it is a reference to two or more requests made contemporaneously and outstanding at the same time, then of course one might make the other viable and everyone will live happily ever after.  In the much more likely scenario that one request makes the other non-viable, then you are into a whole different set of issues. 

The Guidance states that “Requests should be considered in the order in which they are received” which suggests that the earlier of two incompatible flexible arrangements should generally get the nod, with the second being decided against the changed factual context which that creates.  Brutal, but logical and clear.  In the very next paragraph, however, is the injunction that where employers receive multiple requests, they should not make value judgements about “the most deserving request”.  There should be no debate about my childcare needs trumping your religious observances and both walking all over a third party’s wish to have a work:life balance which is something more than just being at work whilst still alive.  The scope for discrimination claims if you go down that road would be colossal. 

By inference, each application must be considered so far as possible without any reference to the circumstances of the individual applicant, the employer focusing exclusively on the impact of the proposed arrangements on the business.  If that is done, then you should never reach the surreal position suggested by the Guidance where making a reasoned decision is impossible and it becomes appropriate “to consider some form of random selection…if unable to distinguish between all the requests”.  No. Just no.

Comparing the issues for employers in supporting employees after cancer and with mental health issues

By Squire Patton Boggs on Posted in Mental Health & Wellbeing

This post is a “conversation” between Barbara Wilson of Working with Cancer and Alex Tambourides, Hammersmith and Fulham MIND.

BW:  I do find it shocking though not surprising that although research shows over 80%  of those  who are working when diagnosed with cancer want to return to work, over 57% have to change their jobs or leave work altogether.

AT: There are some big similarities here with mental health. Even though 1 in 4 people in the UK will experience a mental health problem in their lives, mental health problems in the workplace seem to occupy a hidden space in modern business thinking. Research shows that as a consequence of this many people with mental health problems unnecessarily fall out of employment. Having mental health problems considerably increases the risk of leaving employment compared to other health conditions.  A report conducted by the CBI says that such problems are the most widespread cause of sickness absence (42% manual and 54% non-manual), with cancer also being in the top 5 reasons (29% in manual, and 46% in non-manual).  

BW: I think that fear, misunderstanding and poor communication are often key factors in preventing a successful return to work.   Initially many cancer survivors and their employers believe that once a return- to- work plan has been agreed and a few reasonable adjustments have been made, life will be pretty much back to normal in just a few weeks. It’s alarming that the latest research undertaken by Macmillan Cancer Support shows that 40% of cancer survivors, let alone their employers, are totally unaware of the long-term side effects – physical, emotional and psychological – of cancer treatment.

AT: Again, we’re seeing how the barriers between mental and physical health need to be broken down. There is a strong likelihood that a diagnosis of cancer will impact on a person’s mental health in one way or another. In many circumstances clinicians or OH may forget this and focus purely on diagnosis, not the wider impacts of it on someone’s wellbeing. Research conducted by the Mental Health Foundation found almost half of employees off sick with physical health problems also experienced mild to moderate depression and that they were more worried about informing their employer about their mental health issues than about their cancer or heart disease.   

Another parallel here is that the first time many people experience a mental health problem will be whilst they are working. Our experience shows that both employers and employees sometimes have unrealistic expectations around how best to proceed on the journey back to work. All too often the renewed confidence that can come as people begin to get over the worst can mean that they over-commit upon their initial return. 

BW: Yes, over-committing or just returning too soon or too quickly is a common problem for those returning to work after cancer too. The first few months after treatment has ended can be really difficult. It’s often made worse by the feeling that the support that was available during treatment isn’t there any longer.  Once you are cured or “in remission”, your boss and colleagues assume you must be thrilled and raring to go.  Admitting to depression, or to still feeling insecure and vulnerable at that stage, is often just not for fear of being seen as needy or over-dramatic.

Clinicians tend to focus on physical recovery rather than these ‘softer’ issues, and they give very little advice or guidance about when is the right time to return to work, let alone about dealing with the surrounding feelings or emotions.

AT: There is a big point here around the perception of non-physical issues. So-called ‘soft issues’ have hard impacts. Mental and emotional health can be thought of as ‘soft’ but UK businesses lose over £15bn per year due to mental health related presenteeism. How the person is feeling on their route to recovery can hugely influence outcomes on their return to work.  Line managers and support professionals need to be more adept at dealing with the emotional landscape at work. People who feel listened to and supported will do better. I have begun to wonder whether the reluctance of people to discuss these areas is down to 1) the stiff upper lip; 2) fear of litigation; 3) perceived incongruence with the competitive and macho culture that dominates much of modern industry; or 4) all the above, in varying proportions in varying environments.   

Both mental health and cancer seem to occupy a place within our culture that is fenced off by taboos. The taboo that exists around cancer is about its association with death and loss, things that we find uncomfortable to live with. Taboos around mental health are of a different kind of loss, the loss of self. Our underlying attitudes towards issues of such significance won’t change overnight but by simplifying and demystifying the way we deal we these issues in the workplace we can eventually begin to replace the fear with a more pragmatic and positive way forward.  

BW: In my last blog https://www.employmentlawworldview.com/supporting-those-affected-by-cancer-to-return-to-work/ I outlined a number of practical steps employers might take to help people affected by cancer to return to work – for example taking the initiative to improve awareness and understanding of cancer and its impact within the workplace, and providing better one-to-one support for those coming back to work.  A lot more should also be done to alert those recovering from treatment about the possible physical and psychological side effects of cancer and how they can be self-managed.

AT:  Doing the right thing for a person’s health is also doing the right thing for the business. Dealing with mental health in the workplace requires a simple but aware approach. Neither carrots nor sticks are successful ways to deal with mental health issues. All too often people are overly nurturing or cynical and dismissive.  By following some of the simple steps you outline, and doing what is reasonable to support someone it is possible to be both compassionate and commercial. Taking employee health seriously will ultimately create a more engaged workforce and a healthier and more productive business.  

BW and AT: Clearly, every person’s journey is unique- whether it’s coming to terms with a cancer diagnosis and returning to work, or struggling with a mental health issue in the workplace. Support is vital; employers should be confident and proactive in helping to remove barriers, not increasing the barriers towards returning to work.

UK Business Immigration Update on the Prevention of Illegal Working

By Squire Patton Boggs and Annabel Mace on Posted in Business Immigration

May 2014  

The Home Office has issued a draft Code of Practice on Preventing Illegal Working and the Civil Penalty Scheme for Employers which introduces a number of key changes relating to employee right to work checks.  

As most employers will be aware, the Immigration, Asylum and Nationality Act 2006 imposes a responsibility on employers to prevent illegal working by ensuring that their employees have the right to work in the UK. The Home Office also issues separate guidance on how employees’ right to work should be verified and the way in which civil penalties will be imposed if the Act is breached.  

Following the results of Government’s public consultation on “Strengthening and Simplifying the Civil Penalty Scheme to Prevent Illegal Working” published in October last year, the draft Code will be laid before Parliament and is intended to come into effect on 16 May 2014. The draft Code updates the one issued when the Act came into force in February 2008 and specifies the factors to be considered by the Home Office in calculating a civil penalty. Details of the key changes are as follows:   

  • Following the initial right to work check, employers will no longer automatically be required to conduct annual follow-up checks for those with temporary permission to be in the UK. Instead, an employer’s time-limited statutory excuse will generally continue for as long as the employee has permission to be in the UK and do the work in question, as evidenced by the documents that the employee produced for the initial right to work check. Most employers will see this as a welcome reduction in their current compliance duties.
  • The draft Code claims that there will be a reduction in the range of documents acceptable for checking the right to work but in fact the key documents are exactly the same as before (List A and List B have simply been presented in a format which makes them look shorter!).
  • For students who have a restricted right to work, employers will also need to obtain and retain a copy of evidence from the student’s education sponsor, setting out their term and vacation times over their period of study in the UK for which they will be employed. This appears to be an additional administrative burden but is already carried out by many employers as a precaution in any event.
  • The grace period for conducting right to work checks for employees acquired as a result of the Transfer of Undertakings (Protection of Employment) Regulations will be extended from 28 to 60 days. This is a significant improvement, particularly for employers which acquire a large number of staff in the course of a TUPE transfer and are therefore hard-pressed to conduct the necessary checks within the current deadline.   

We anticipate that the Home Office’s separate guidance on preventing illegal working in the UK will be updated in line with the changes outlined in the draft Code in due course. It is this guidance (rather than the Code of Practice) which will continue to provide full details on how to conduct right to work checks for employees in the UK. The current guidance can be found  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/276790/full-guide.pdf.   

Watch for details of our Immigration Seminar on 24 June 2014, covering these changes and those to Tier 2 of the Points Based System introduced in April.    

Contact

Annabel Mace, Partner

Head of UK Business Immigration Team

+44 20 7655 1487

annabel.mace@squiresanders.com

US Department of Homeland Security to Issue Immigration Rules to Benefit Highly Skilled Workers

By Squire Patton Boggs on Posted in Business Immigration

The Department of Homeland Security (“DHS”) has announced a proposal that would extend employment authorization to spouses of certain H-1B workers, as well as a proposal that would remove obstacles for certain groups of highly‑skilled workers to remain in the United States.  The new rule is the latest in a series of administrative actions President Barack Obama has announced as efforts to win broad immigration reform in Congress have failed.

The rule change is set to be published in the Federal Register sometime this week and if it survives the rulemaking process, the rule could partially satisfy requests from the tech industry for the government to make it easier to attract and keep foreign workers trained in science, technology, engineering and math, and is part of the administration’s response to the demand for increased visas for foreign professionals.  In April, the 85,000 H-1B visas available for 2015 were exhausted in just a week.  The same thing happened last year.  The proposed rule changes also acknowledge one of the key elements of the immigration debate:  the huge waiting period for “green cards.”  Currently some applicants must wait up to 11 years to get their permanent residency.

Spouses of Certain H-1B Workers

The proposed rule would allow work authorization for H-4 dependent spouses of H-1B workers with an approved Form I-140 (Immigrant Petition for Alien Worker) or who have been granted a visa extension beyond the 6-year maximum period allowed in H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) because they have begun seeking permanent residence in the U.S.

Professionals from Chile, Singapore, Australia and Northern Mariana Islands

The second proposed rule would update regulations making it easier for professionals from Chile, Singapore (H-1B1), Australia (E-3), as well as Transitional Workers from the Northern Mariana Islands (CW-1) to work and stay in the United States.  Specifically, the proposed change would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupations from Chile, Singapore and Australia in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization, and
  • Allow H-1B1, E-3 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.  Under current regulations, employers of these workers must generally file a petition requesting the extension of the employee’s status well before their authorized status expires.

EB-1 Outstanding Professors and Researchers

The proposal would also broaden and expand the type of evidence professors and researchers can present to make it easier for them to request employment-based first preference (EB-1) immigrant visas.  Specifically, the rule would allow the submission of evidence comparable to other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

The rule change is still only a proposal until it successfully makes it through the entire rulemaking process.   Department of Homeland Security officials are seeking comment on the proposal, which is expected to go into effect sometime later this year.  The proposed changes will be published in the Federal Register  this week and will be open to 60 days of public comment before the administration can implement them.  In the meantime, DHS Deputy Secretary Alejandro Mayorkas has said, and we agree, that these kinds of actions “do not replace the need” for comprehensive immigration reform which can only be enacted by Congress.

Press campaign gets into Top Gear

By David Whincup on Posted in Discrimination, Misconduct

There being only so much fun you can get out of someone breaking an egg on Nigel Farage, no wonder the Press has now turned to Jeremy Clarkson’s alleged use of a word beginning with N during the filming of Top Gear.  

Clarkson has not helped himself here, his ground shifting uneasily from (a) never having said the word because he loathes it to (b) deliberately obscuring it by mumbling, to the more than faintly unconvincing (c) having said it despite doing his best not to.  For our purposes, however, let us heed his less than glorious past record in these things (some of it real and some of it clearly desperate extrapolations by Press detractors) and assume that he did in fact mumble something recognisable as the N-word.  Let us assume also that he is your employee and that he is not (as he is for the BBC) one of your most profitable assets and for that reason, effectively bullet-proof.

What we then have is an ordinary employee who once used the N-word on a video-clip which was made some years ago and never broadcast, which generated no complaints from anyone there at the time and which he took deliberate, if not wholly successful, steps to obscure.  In the interim, many of your other employees have been filmed and broadcast in glorious digital clarity using language covering the entire spectrum of possible offence from the obscene to the profane and the ageist to the outright gynaecological, in each case without anyone so much as raising an eyebrow.   

That leads us to two possible conclusions – either this is more about Clarkson than anything else, or there is something uniquely unacceptable about the N-word, no context in which its use could be acceptable, and that any utterance of it, however muffled, must therefore justify immediate dismissal.  Like Golliwog in effect (see our post of 13th December  https://www.employmentlawworldview.com/golly-folly-gets-chef-in-a-jam-in-uk-employment-tribunal/), the very Voldermort of nouns.   What if Clarkson’s mouth had formed the word but he had made no sound, or if he had used some rhyming word which made quite clear (indeed highlighted) the omitted N-word?  Is the mere starting down the path of eenie meenie miney mo not going to bring the word to the mind of the viewer?  Or at least the viewer of an age which remembers that as an innocent nursery rhyme, not a quick ticket to a P45?  Is this not getting close to the point of saying that if you visibly think the word at work, that is gross misconduct?   

Objectively, and ignoring the baying of the crowd, could this be grounds for a fair dismissal?  It is not disputed that Clarkson took deliberate steps not to say the N-word audibly, or indeed that it takes some real effort, the volume cranked up to 11 and the services of specialist audio analysts to discern at best that the word was probably used.  This is not the unthinking causing of widespread offence (or not until the Daily Mirror got hold of it, at any rate).  It is not in the same league as the “slope” remark in Top Gear’s recent Burma Special.  The BBC admitted that it knew this to be a slang reference to individuals from certain parts of South-east Asia but even the most lightweight research would have shown that word to be viewed as actively offensive.  

No one would condone Clarkson’s use of the N-word, if that is what it was, but in these particular circumstances I would suggest that it does not get close to the level of severity required to justify the summary dismissal which some have called for.

French (dis)connection 2 – the next instalment

By Squire Patton Boggs on Posted in Wage and Hour

An amendment to the Syntec National Collective Bargaining Agreement (CBA) – the Bureau d’Etudes Techniques, Cabinets d’ingénieurs-conseils et Sociétés de Conseil – signed on 1st April 2014 received a lot of publicity in the UK, even more than in France.  See our earlier post https://www.employmentlawworldview.com/french-disconnection-have-employees-in-france-been-banned-from-checking-work-email-after-6pm/.  

The foreign press has made a big deal out of this amendment. It was variously reported that the agreement “involved a million French employees”, that working after 6pm “had become illegal” and that French employees were now “forced to switch off their phone” after this time, etc.   A great story, spoilt only slightly by the fact that none of it is true.  

The amendment on 1st April 2014 aims to amend the Syntec CBA into line with the French Supreme Court’s recent rulings.  The judges consider that the existing provisions of the Syntec CBA do not ensure the protection of employees’ health and safety because they do not ensure a reasonable workload or safe limits on working time. This ruling has led to an abundance of litigation. Employees have challenged the validity of their own agreement to the working days system and have claimed payment for any overtime performed by them in the past.  This often amounts to tens or even hundreds of thousands of euros. It was therefore urgent that the industry negotiated a new national agreement to restore legal certainty at the earliest opportunity.  

However, contrary to all the international press reports, this revised text has only very limited scope and content. First, the amendment only applies to executive-level employees (cadres autonomes) working under an annual working days system.  These executives are autonomous in the execution of their work and in the organisation of their working time. This annual working days system can therefore be justified by the nature of their duties and the extent of their responsibilities. In any event, this amendment is, for the time being, only applicable to companies which are members of employers’ organisations which have signed up to this amendment, which is far from all of them.   

The amendment makes no reference to forcing employees out of the office or to switch off their phone, tablets and laptops after 6pm. This might be a measure for an employer to consider (one among many) as a way of maintaining a decent work: life balance, but it is certainly not an obligation.  A French organisation allowing or sometimes requiring employees to look at emails after 6pm is not thereby in legal trouble.  The amendment is intended merely to help compliance with the minimum weekly and daily rest time provided by the French Labour Code (11 consecutive hours between two working days and 35 consecutive hours of weekly rest). This logically implies (but does not make express) that employees might “disconnect” over those periods. The application of these provisions is currently vague but a degree of flexibility will inevitably be left to companies to respond as they see fit.  

This agreement is in line with the Charter of 15 Commitments for Work-life Balance implemented by the Ministry of Women’s Rights last December by 16 major companies and organisations.   This Charter aims to develop best practices for work-life balance within French companies and to promote a management culture more respectful of the private life of all employees.  It includes provisions to preserve reasonable hours of work by limiting meetings after 6pm and the sending (not reading) of mails and requests beyond working hours and during the weekends.  

However, companies are not only free to decide whether they sign this Charter or not, but even having signed, they can still adapt its principles and provisions to their own business/activities.  One could easily anticipate situations where an employee’s childcare commitments, for example, compelled an early exit from work for school-run duties.   That would be easier for both the employee and the employer if the employee could pick up his/her emails again once the child was safely home, even if this were after 6pm.

Vers un « droit à la déconnexion » des salariés ?

By Squire Patton Boggs on Posted in Employee Welfare, Wage and Hour

Un avenant à la Convention collective des Bureau d’Etudes Techniques, Cabinets d’ingénieurs-conseils et Sociétés de Conseil dite « Syntec » signé le 1er avril 2014 a beaucoup fait parler de lui, notamment outre-manche.  

La presse étrangère a fait des gorges chaudes de ce texte. On a pu lire que cet accord concernait un million de salariés français, que le travail après 18 heures était devenu illégal ou encore que les salariés français étaient désormais contraints d’éteindre leur téléphone après cette heure…  

L’avenant du 1er avril 2014 a pour finalité d’adapter la Convention Collective « Syntec » à la jurisprudence de la Cour de Cassation, qui annule désormais les conventions de forfait jours conclues sur la base de ce texte. En effet, les magistrats considèrent que les dispositions de la Convention Collective « Syntec » ne permettent pas de garantir que « l’amplitude et la charge de travail restent raisonnables [ni à assurer] une bonne répartition, dans le temps, du travail de l’intéressé, et donc, à assurer la protection de la sécurité et de la santé du salarié ». Cette jurisprudence a conduit à un abondant contentieux dans le cadre desquels sont formulées des demandes de rappels d’heures supplémentaires dont les montants se chiffrent souvent en dizaines voire centaines de milliers d’euros. Il était donc urgent que la branche négocie un nouvel accord pour rétablir une certaine sécurité juridique.   

Cependant, ce texte a un contenu et une portée bien plus limités que ce qu’a pu rapporter la presse internationale. Tout d’abord, l’avenant ne s’applique qu’aux cadres dont le temps de travail fait l’objet d’une convention de forfait jours, c’est-à-dire les cadres suffisamment autonomes pour gérer librement leur agenda et dont le temps de travail est décompté non pas en heures, mais en jours travaillés sur l’année (dans la limite de 218 jours selon le Code du travail, incluant la journée dite de « solidarité »). En tout état de cause, cet avenant non étendu ne s’impose aujourd’hui qu’aux entreprises membres d’un syndicat patronal signataire de l’accord.   

Plus encore, l’avenant n’impose nullement aux employeurs de mettre leurs salariés dehors ou de leur retirer leurs téléphones, tablettes ou ordinateurs portables après 18h. Il vise uniquement à assurer le respect des durées minimales de repos imposées par le Code du travail (11h consécutives entre deux journées de travail et 35 heures consécutives de repos hebdomadaire). Ce respect implique assez logiquement que les salariés se « déconnectent des outils de communication ». Les modalités d’application de ces dispositions sont pour l’instant assez floues mais il semble qu’une certaine flexibilité soit laissée aux entreprises, chacune d’elle pouvant répondre à « l’obligation de déconnexion » comme elle l’entend.   

Cet accord s’inscrit dans la lignée de la Charte des « 15 engagements pour l’équilibre des temps de vie » mise en place par le Ministère des droits de la femme et signée en décembre dernier par 16 grandes entreprises et organisations.   

Cette charte vise à développer les « bonnes pratiques de conciliation dans les entreprises françaises » et à « soutenir et promouvoir une culture managériale plus souple, plus respectueuse de la vie privée de tous les salariés en intégrant leurs contraintes personnelles ». Elle prévoit notamment de préserver des horaires de travail raisonnables pour les collaborateurs, de limiter les réunions après 18 heures et les envois de mails et sollicitations en dehors des heures de travail et le weekend.  

Toutefois, les entreprises sont non seulement libres de signer ce document ou non, mais elles disposent également d’une marge de manœuvre pour adapter les principes qu’il édicte aux besoins de leur activité.

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