General

In our article on “Risks associated with employing workers within the Gig economy” written in August 2018 reference was made to the case of Uber BV and others v Aslam and others and its effect on the classification of individuals as being self-employed or being employed as workers.

In recent developments the Court of Appeal considered this point of contention and upheld the previous decision of the Employment Tribunal that Uber drivers are to be classified as “workers” for the purpose of the Employment Rights Act 1996, and as such are entitled to certain statutory rights such as minimum wage and paid holiday.

Reference was made to the case of Autoclenz Ltd v Belcher [2011] wherein it was found that written documentation alone may not reflect the reality of the relationship between an individual and an employer, and that when looking to classify the nature of the relationship in question you must examine all of the surrounding circumstances, of which the written documentation may only be a part. The fact that there may be a signed document would most definitely be relevant but may not be conclusive. The effect of the Autoclenz case was that the court could disregard the terms of a contract created by an employer if it was not a realistic reflection of the relationship in question.

The Court of Appeal’s decision to uphold the Employment Tribunal’s decision clearly shows the trend in regards to how employment relationships are being viewed by the courts, as well as further demonstrating the need for both employers and individuals to be aware of the risks they may face when operating inside the Gig Economy.

Should you have any questions about your rights as an employee or employer please do get into contact with a member of our team.

The Equine industry is an area of numerous different relationships, for example between an employer/employee/working pupil/groom or a yard owner/horse owner or a seller/purchaser. Accordingly, there are stringent laws that apply in such different circumstances.

The particular issue with the Equine industry is that many of the relationships are built on trust, where it is almost unthinkable that people would enter into a written contract to govern the relationship between the parties.

This normally works, until something goes wrong and then a falling out occurs.

Prevention is better than a cure.

Employment Issues

Working with horses has long been considered as a vocation, rather than a profession. Having youngsters working and helping out at a riding school, with payment in kind of a free riding lesson, is fairly common place. Grooms will work significant hours, often in excess of the maximum working week of 48 hours, without ever having signed a derogation statement.

It is unlikely that a written employment contract has been provided, although an employee is entitled to a written statement of the main terms within 2 months of commencement of employment. It is also unlikely that an employee is to be paid holiday, pension and the ability to contribute towards state benefits.

For employers, it is important to consider the national minimum wage, particularly if they allow their staff to work more than their contractual hours whereby they must stipulate how overtime is paid. The Department of Works and Pensions view the equine industry as an excellent source of fines for non-payment of the national minimum wage.

There is also the question of the status of staff at a yard. It is common to take on people under the title “freelancer”, as an independent contractor, however especially in light of the recent Pimlico Plumbers Ltd case, tribunals are increasingly deciding that such a relationship is a sham and such workers are considered employees.

Care must be taken in respect of volunteers, which although will not create the employment relationship, expenses can be provided and sufficient insurance cover under the employers’ liability scheme should be obtained. However children under the age of 14 may not volunteer!

It is therefore essential for the yard owners and employers to make sure that they fully comply with their employment requirements, otherwise risk fines and potentially damaging claims from former staff. It is also prudent for those employees to understand their rights and not to “accept their lot” in respect of their working conditions.

Livery Issues

There are many types of livery – competition, working, full, part, DIY and grass. All with different levels of services involved and the respective costs per month.

For any yard owner and horse owner, it is important that such services are fully covered in an agreement and that there are no “surprises” which can lead to argument. For instance a limitation on the number of bags of shavings a horse can use per week, may cause issues if this has not been made clear from the beginning.

From a legal perspective, it is essential to clearly set out the responsibilities for the yard and horse owner.

For the yard owner, clauses in a livery agreement that you may wish to include are:

• A lien and power of sale over a horse for non-payment of fees. Whether or not this clause is actually activated, it is useful to have this option as a backup provision;
• Standard requirements such as worming, clothing and footwear, passport location;
• Termination of the agreement in the event of unreasonable behaviour of the horse owner that could cause loss, damage or injury;
• Restrictions on access and restrictions on visitors;
• Recovery of legal costs when seeking to recover unpaid fees;
• A mediation clause to attempt to seek early reconciliation in the event of a dispute.

For the horse owner, clauses such as the following may wish to be included:

• Services provided that would not be standard, for instance turnout to an individual or shared paddock, number of hours turnout, daily routine or pasture management;
• To be able to request sight of a record of the services provided;
• Confirmation that staff at the yard are sufficiently skilled, competent and experienced to handle and/or ride a particular horse;
• Insurance details of the yard owner;
• Apportionment of the livery fee upon termination.

The importance of a clear and detailed livery agreement cannot be underestimated, providing certainty to both parties at the beginning, during and when ending the relationship.

Should you have any enquiries please do not hesitate to contact Sam Major – smajor@cheyneygoulding.co.uk

What is GDPR?

The General Data Protection Regulations replace the Data Protection Act 1998 on the 25th May 2018. GDPR gives people more control over how organisations use their data and consequently imposes a burden on all organisations who control and process data.

What steps should I take in order to be compliant with GDPR?

Awareness

Make key people in your organisation aware that the law is changing surrounding the retention and processing of personal data. They need to assess the impact of the new law and identify areas where compliance problems may arise.

Data audit

You should consider how data is handled in your organisation and answer the following questions:

• What data do you hold and why?
• How do you collect the data?
• How and where is the data stored?
• What do you do with the data?
• Who owns and controls the personal data?
• How long is data retained?
• When and by what means is deleted?
• Who is responsible for the data and processors associated with data?
• Do you have adequate technology/process to adequately manage data processing?

What documents do I need to review or create?

When you collect personal data, the law as it stands requires you to give people certain information which is usually done via a privacy notice. The GDPR requires that additional information is provided, such as explaining the lawful basis for processing the data, the period you retain data for and that an individual may complain to the ICO if they believe there is a problem in the way you are handling their data.

You should initially create an internal policy document setting out how you will comply with the GDPR and base all other documents on these policies. You should review your contracts with your suppliers who are data processors to ensure they fulfil their obligations under the GDPR.

You will also need to update your website privacy policies, cookie policies and privacy notices for employees/workers where applicable.

What do I need to detail in my updated privacy notice?

Remember, you need to ensure the information is concise, transparent and easily accessible; written in clear plain language; and available free of charge. This information should be provided at the time the data is obtained.

You must set out:

• Identity and contact details of the controller (and where applicable, the controller’s representative) and the data protection officer.
• Purpose of the processing and the legal basis for the processing.
• The legitimate interests of the controller or third party, where applicable.
• Categories of personal data.
• Any recipient or categories of recipients of the personal data.
• Details of transfers to third country and safeguards.
• Retention period or criteria used to determine the retention period.
• The existence of each of data subject’s rights.
• The right to withdraw consent at any time, where relevant.
• The right to lodge a complaint with a supervisory authority.
• Whether the provision of personal data part of a statutory or contractual requirement or obligation and possible consequences of failing to provide the personal data.

The existence of automated decision making, including profiling and information about how decisions are made, the significance and the consequences.

Bear in mind that the privacy notice may come in several forms for each kind of interaction (to employees, to clients etc).

What rights do I need to provide for?

The GDPR confers the following rights on individuals:

• The right to be informed.
• The right of access.
• The right of rectification.
• The right to erasure.
• The right to restrict processing.
• The right to data portability.
• The right to object.
• The right not to be subject to automated decision-making including profiling.

These rights represent an enhancement of the rights to individuals under current legislation. It is important to consider your procedures and evaluate whether you can fulfil the rights above given the systems and processes you currently use. Changes should be made to ensure these rights are able to be actioned by individuals.

What do I need to consider regarding subject access requests?

Any requests that are made by individuals must now be free of charge in most cases and the period for compliance is now one month, rather than the existing 40 days. Any request that is refused (such as for being manifestly unfounded or excessive) must be accompanied by reasons and state their right to complain to the supervisory authority and to a judicial remedy. This must be done as a matter of priority and within one month.

What is the basis for my processing activity?

Under the GDPR, you must identify the lawful basis for processing activity and document this in your privacy notices. You should review your processing activities and identify your lawful basis for doing so.

The lawful bases are as follows:

(a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose.

(b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.

(c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations).

(d) Vital interests: the processing is necessary to protect someone’s life.

(e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.

(f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests.

You should consider which of the lawful bases best fits the circumstances and set this out in your privacy notice. Bear in mind that this depends on the specific purposes and the context of the processing. You need to keep a record of which basis you are relying on for each processing purpose, and a justification for why you believe it applies.

Why do I need to think about consent?

The GDPR sets a new, high standard for consent which involves an unambiguous and clear, affirmative action. For example, there is a specific ban on pre-ticked opt-in boxes. You will need to review your consent mechanisms to ensure they meet GDPR requirements on being specific, granular, clear, prominent, opt-in, documented and easily withdrawn. The key points are as follows:

• Unbundled – consent requests must be separate from other terms and conditions. Consent should not be a precondition of signing up to a service unless necessary for that service.
• Active opt in – pre-ticked opt-in boxes are invalid – use unticked opt-in boxes or similar active opt-in methods (eg a binary choice given equal prominence).
• Granular – give granular options to consent separately to different types of processing wherever appropriate.
• Named – name your organisation and any third parties who will be relying on consent – even precisely defined categories of third-party organisations will not be acceptable under the GDPR.
• Documented – keep records to demonstrate what the individual has consented to, including what they were told, and when and how they consented.
• Easy to withdraw – tell people they have the right to withdraw their consent at any time, and how to do this. It must be as easy to withdraw as it was to give consent. This means you will need to have simple and effective withdrawal mechanisms in place.
• No imbalance in the relationship – consent will not be freely given if there is imbalance in the relationship between the individual and the controller – this will make consent particularly difficult for public authorities and for employers, who should look for an alternative lawful basis.

There is not a requirement to refresh all existing consents for the GDPR implementation, but it is important to review these to ensure they meet the GDPR standard. Where there is non-compliance, it is imperative to seek fresh GDPR compliant consent, identify a different lawful basis for your processing (and ensure continued processing is fair), or stop the processing.

Do I need to consider preparing for data breaches?

Yes, you should ensure that the right procedures are in place to detect, report and investigate a personal data breach. The GDPR imposes a duty on all organisations to report certain types of data breach to the Information Commissioner’s Office and sometimes to individuals. You only need to report to the ICO where it is likely to result in a risk to the rights and freedoms of individuals. Procedures should be put in place to respond to such breaches.

Do I need to appoint a data protection officer?

Not necessarily. You only need to designate a DPO if you are carrying out regular and systematic monitoring of individuals on a large scale, a public authority or an organisation that carries out the large scale processing of special categories of data, such as health records. You should however designate someone in your organisation to take responsibility for data protection compliance.

What if I am operating internationally?

If your organisation operates in more than one EU member state or you have a single establishment in the EU that carries out processing which substantially affects individuals in other EU states, then you should determine your lead data protection supervisory authority. This is the location of the authority where your central administration is undertaken. You should map out where the organisation makes its most significant decisions to determine your main establishment to then lead supervisory authority.

Horses are classified as goods and when it comes to selling and purchasing them (when horses can range in price from thousands to hundreds of thousands and more), care must be taken in accurate advertisement and also asking the right questions when buying.

It may seem obvious from the situation but one of the first questions to ask is whether or not the individual is selling the horse as part of their business or whether they are a private individual. Secondly whether the purchaser themselves are acting as part of their business or as a private individual.

If both parties are trading as part of a business, then the Sale of Goods Act (as amended) will apply, as well as ordinary contract law. Should the seller be trading as a business and the purchaser a private individual or the other way around, the Consumer Rights Act 2015 will confer statutory rights to the consumer, as well as contractual common law. When both the seller and the purchaser are private individuals, then only contractual common law will apply.

In some instances the position on whether an individual is private or part of a business is clear, however in some scenarios the distinctions can become blurred.

The most common area of litigation in respect of horses is where a horse has been purchased and unfortunately does not live up to the promises made by the seller. This can be a concern over fitness for purpose or satisfactory quality (statutory provisions) or misrepresentation or breach of a term/warranty (common law).

Rights available should something go wrong will be dependent on the status of the parties. Although the Consumer Rights Act provides certain rights to return, repair or replacement and/or price reduction, there has yet to be any reported equine litigation on these points to decide whether such remedies could be made to work in the case of a sale of a horse, where matters can become complicated, not least in evidential terms but also potential injuries and/or vices that may have occurred to the horse.

The European Court of Justice has sided with a worker and his right to be compensated for untaken annual leave.

The case of King v The Sash Window Workshop Limited and another C-214/16 clarified that in circumstances where an employer has refused to recognise a worker’s right to paid annual leave, the worker has the right to be compensated for all of that leave on termination, whether or not he actually took the leave.

The case represents yet another challenge to the Government’s outdated labour laws, demonstrating a need for change in light of the gig economy. The failure of organisations for wrongly classifying their staff have created significant expense for these organisations. The payment of national minimum wage is not usually an issue in these cases as organisations frequently pay above this threshold. However, the right that workers have to paid annual leave could have greater consequences for these organisations.

The King decision increases the cost even further to those organisations that fail to recognise worker status correctly. The national minimum wage recovery period being six years, whereas King has confirmed that compensation for unpaid holiday can be claimed all the way back to 1993.

As a result of the ECJ’s decision in King, the cost of failing to recognise worker status has increased significantly, particularly for those organisations that have been operating for many years. In national minimum wage cases, the maximum period of recovery for past losses is six years. Following King, compensation for unpaid holiday can now be claimed all the way back to 1996.

The Government has announced its intention to modify the Land Registration Rules 2003 in order to facilitate the introduction of fully digital conveyancing.

The Land Registry consulted on the possible changes back in 2017, including the use of digital documents with electronic signatures, and announced on 23 January 2018 that the changes have been approved.

The amended rules, which come into effect on 6 April 2018, allow for registered transfers to be carried out using digital documents and electronic signatures. Identity checks will be carried out using the Government Digital Service in addition to the regular paper checks by the conveyancer. Although this will only be available in relation to some types of transfers initially, it is an important step in the Land Registry’s digital modernisation to make conveyancing simpler, faster and cheaper.

The amended rules have also made provision for online access to historic information about a registered property. This tool will provide a useful way to unravel issues relating to complex titles, and in tracing ownership in contentious cases.

Chief Executive and Chief Land Registrar Graham Farrant said: “Our customers are central to everything we do and we want to make dealing with us quicker and simpler by providing more services through digital technology. These changes are an important enabler for our digital transformation and I want to thank our customers for their positive responses to the consultation.”

The Land Registry advised they will meet their target to digitise and automate 95% of their daily transactions 2022 by “focusing on automating the most straightforward updates and aspects of the complex processes where possible and beneficial. This will save experienced caseworkers from needless copy typing, data entry and repeat administrative work, freeing them to focus on exercising expert judgement on registration applications”.

The Land Registry’s full press announcement can be found here: https://www.gov.uk/government/news/hm-land-registry-moves-forward-with-digital-conveyancing

Chancellor, Phillip Hammond, announced on the 22nd November that stamp duty is to be abolished for first-time buyers on properties up to £300,000 with immediate effect.

The cut will permanently raise the price at which a property becomes liable for stamp duty to £300,000 for first‑time buyers in an attempt to help young people buy their first home.

The Government says 95% of first-time buyers that pay stamp duty will benefit to some extent, and 80% of first-time buyers will pay no stamp duty at all. The Treasury says the change will save purchasers up to £5,000.

Mr Hammond said: “It takes too long to save for a deposit and rent absorbs too much of the monthly budget.”

But some experts have warned that the cut for first-time buyers could push up property prices. A spokesperson for the Office for Budget Responsibility said: “We estimate that the Stamp Duty relief will increase house prices by 0.3 per cent”.

The Supreme Court ruled on the 26^th July 2017 that the Government’s employment tribunal fees are “illegal” and preventing people access to justice.

The Supreme Court did not rule against the fees themselves, rather that they should be set at a level that everyone can reasonably afford. Access to justice will be all the more important when it comes to enforcing rights that may be at risk after Brexit

Employment tribunal fees were originally introduced in 2013 with the intention to cut out malicious and weak cases. To bring a claim it was costing claimants up to £1200 in fees.

Following the introduction of the fees four years ago, a government review found the number of cases taken to employment tribunals had fallen by 70%.

Cases sent to employment tribunals

Source: Ministry of Justice

Unison, the UK’s largest trade union, brought the claim arguing that the high fees discriminated against workers.

The Supreme Court said: “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.”

In their ruling, the court said: “A significant number of people have found the fees unaffordable.”

Unison general secretary Dave Prentis said: “It’s a major victory for employees everywhere. Unison took the case on behalf of anyone who’s ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand.”

“These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.”

The Supreme Court did not rule against the fees themselves, rather that they should be set at a level that everyone can reasonably afford. Access to justice will be all the more important when it comes to enforcing rights that may be at risk after Brexit.

What does this mean for employers?

–          Increase in employment tribunal claims:

As this is a widely publicised topic the risk of employers facing more employment tribunal will increase immediately. Employers will need to take extra care when dealing with HR/employment issues, we advise to react appropriately and quickly when complaints are initially raised.

–          Potential Legal challenges:

With the decision that employment fees are unlawful. Previous claimants that could not claim previously may attempt to bring claims now. Usually there is a time limit of employment cases however there is an argument that claimants could not pursue the claim at the time, therefore preventing them from justice. The Supreme Court did not deal with this issue, inevitably further cases will emerge.

–          Delays in the employment tribunal system:

The tribunal system will now face two issues. First, it will have to adapt the current system to a new system without the requirement of fees plus dealing with refunds from unlawful cases. Secondly, it will have to accommodate for an influx of claims. This will likely slow up the process and cause delays. Currently, the online filing service to bring a claim has been suspended whilst being amended and claims can only be filed in hard copy.