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The NHS

During the COVID-19 pandemic, our NHS has fondly become a national treasure. We have supported and clapped our wonderful key workers and been grateful for their incredible and tireless work. The thought of suing this overstretched and underfunded service that is available to all could, to some, seem like a dreadful thing to do. But what if you have been affected by a failure of the NHS that has left you or a family member with devastating and life-changing consequences?

What Is Clinical Negligence?

All medical professionals, whether in the NHS or private sector, owe a duty of care to their patients. If the care delivered falls below a reasonable standard and this causes harm, injury, or death, then the medical professional is negligent in the eyes of the law.

Can I Get Compensation?

NHS Resolution is the legal arm of the NHS and recognises that things can “go wrong” and when that happens, those involved should be properly informed and compensation should be fairly paid.

While financial compensation cannot undo damage caused to a patient or bring back a loved one who has died because of clinical negligence, it can help to ease future financial burdens. For the child who now has additional care needs, compensation can help to give them the care and the quality of life that they and the family deserve. Our expert clinical negligence team has recently secured compensation of over £26 million for one client.

How Can I Make Sure This Does Not Happen to Someone Else?

We find that one overriding theme is that people who have suffered from clinical negligence want to make sure that the same thing does not happen to someone else. The only way that mistakes can be learned from, is if they are fully investigated so that improvements to practice can be made. NHS Resolution is also keen that the NHS learns from mistakes to prevent reoccurrence.

Here at Lanyon Bowdler, we are passionate about helping to bring about change to improve healthcare services to make them safer for all. If you think that you or a member of your family may have been affected by clinical negligence, then get in touch with our specialist clinical negligence team.

Delays in Diagnosis of Bowel Cancer

This blog is written by Katie Little in our clinical negligence department.

It is a subject that many find embarrassing and would rather not talk about, however bowel cancer is the fourth most common cancer and the second biggest killer in the UK and it can affect anybody. April 2021 is Bowel Cancer Awareness Month and it is important that you are aware of the signs and symptoms and when you need to take action. If the disease is diagnosed in the early stages, prognosis is normally good but as time passes, the prospects of recovery diminish significantly.

Symptoms of Bowel Cancer

The main symptoms of bowel cancer to look out for are:

  • Blood in your poo
  • A change in your bowel habit (i.e. going to the toilet more or less often than usual)
  • Lower tummy pain, bloating or discomfort

#NoButts Campaign lead by Deborah James, 39 year old with incurable bowel cancer

If you experience any of the above it is important to visit your GP as soon as possible. They should take details of your symptoms, general health and family history. They may also carry out an examination. If the GP is concerned, you will be referred to a specialist.

However, here at Lanyon Bowdler, we are aware that sometimes things don’t go to plan and this can have a devastating outcome if it results in a delayed diagnosis. If you attended an appointment with your GP presenting with any of the symptoms above and they failed to refer you to a specialist for further investigations (or were delayed in doing so), they did not carry out the correct testing or screening, or if they misdiagnosed you with irritable bowel syndrome (IBS) or colitis (for example) then you may have a claim for the harm suffered as a result.

Remember, early detection is key. Be aware of the symptoms and note that the NHS also offers a bowel screening system to all of those aged between 60 and 74. Every two years you will be sent a home test kit which simply involves collecting a small sample of poo to send for testing. If you are eligible for a home test kit, take up this offer.

The below links provide helpful information and support if you or somebody you know has been impacted by bowel cancer:

For more information and advice, please contact a member of our clinical negligence team.

Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020

On 04 May 2021 the government’s Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 will come into force, giving individuals with problem debt legal protections from their creditors.

What Is a Breathing Space?

A debt adviser authorised by the FCA can offer an individual breathing space on problem debts. Under the new regulations, there are two types of breathing space.

  • A standard breathing space will pause all action to recover the debts for up to 60 days with a review date set at around day 23.
  • A mental health crisis breathing space will pause action to recover the debt for the duration of the individuals’ crisis treatment, plus an additional 30 days. An authorised mental health practitioner will provide evidence to a debt adviser showing that the individual is receiving treatment.

What Does This Mean for Creditors?

The new regulations do offer further support to debtors; however, the debtor is not absolved of liability for the debt and they will eventually be required to pay. While there is a pause on action to recover the debt, it is not a repayment holiday. If the debtor is already making payments under an agreement, they are advised to continue to make those payments. The debt adviser will also check to see if there is not a better course of action available to the debtor, this includes selling assets that are readily available, entry into a DRO, or entry into an IVA.

The insolvency service will send out the breathing space notifications to creditors and maintain its register of persons who have entered a breathing space within the last 15 months. Notifications will be sent electronically, or by post. It is important that any notification received is acted on upon receipt of the notification. Once received you must apply the following protections:

  • Identify the individuals’ debts and inform the debt adviser of any that have not been included on the notification.
  • Stop all interest and charges on the debt for the duration of the breathing space.
  • Stop any recovery efforts or enforcement actions in relation to the debt.
  • Cease communications with the debtor, including communications from your solicitors. (You can write to the debtor to let them know that the interest on the debt has been stopped for the duration of the breathing space, but this is not required.)
  • If you have issued proceedings, you must write to the courts to inform them that you have received a breathing space notification

If these protections are not put into place or are broken, a debtor can make a claim for costs associated with defending a claim made during the moratorium.

Can a Creditor Challenge the Moratorium

A debtor that has cash readily available to pay the debt will not be permitted to enter into a breathing space period. If a creditor can prove the debtor does have cash available to pay their debt, they have 20 days to appeal the moratorium, however evidence of this will need to be provided to the debt adviser. If the debt adviser does not make a cancellation of the moratorium after receiving the evidence, an application to review the moratorium can be made to the county court.

It is vital that the new regulations be incorporated into the processes and procedures of any business that recovers debts from individuals and sole traders before 04 May 2021.

For further information about our debt recovery services, please contact our debt recovery team.

Misreporting of Cervical Smears & Delayed Diagnosis of Cervical Cancer

All women in the UK from the ages of 25 to 65 are invited for routine cervical smear tests. For women aged 25 to 49, this invitation arrives every 3 years; for women aged 50 to 65 it arrives every 5. In 2019 - 2020, 4.63 million women were invited for a cervical smear but only 3.20 million accepted the invitation.

What is a Smear Test?

A smear test is a generally painless procedure used to check the heath of the cervix. The test involves collecting cervical cells using a swab (soft brush) which are then tested for the presence of the Human Papilloma Virus (HPV). If this is negative, no further action is required. If this is positive, a cytology screen is carried out to check for the presence of abnormal cells. If these are identified, an invitation for a colposcopy is sent for further testing to be carried out and if necessary, treatment of the abnormal cells. If identified at an early stage, this usually involves a LLETZ or similar procedure to remove the affected cells completely.

Reporting Errors

It is therefore important that as many women as possible attend for their cervical smear. It is also important to be aware that whilst the vast majority of cervical smear results are correctly reported, smear tests are studied and reported by humans and humans can make mistakes.

Sometimes negative smears are reported as positive and positive smears are reported as negative. Where a negative smear is erroneously reported as positive, this can result in women undergoing further invasive investigations that were not necessary. Where a positive smear is reported as negative, the consequences can be devastating. This is because if abnormal cells are left untreated, they can continue to develop and can turn into cervical cancer. Once a patient has cervical cancer, they are likely to need radical treatment such as a hysterectomy, chemotherapy and/or radiotherapy with life altering results. In some cases, the cancer proves fatal.

Should I Be Worried?

The vast majority of cervical smears are correctly reported as negative and fortunately, mistakes are few and far between. However, any woman presenting with any of the following symptoms following a negative cervical smear is encouraged to contact their GP for advice:-.

  • Unusual bleeding between periods, after intercourse or after menopause;
  • Unusual or unpleasant discharge;
  • Pain during intercourse;
  • Lower back pain/pelvic pain.

At Lanyon Bowdler, we have extensive experience in representing women whose cervical smears have been misreported or whose diagnosis of cervical cancer has been delayed. If you have been affected in the same way, please do not hesitate to contact us.

Using Restrictive Covenants to Protect Your Business

Post-termination restrictive covenants are clauses in employment contracts designed to prohibit employees from taking certain steps after their employment has come to an end. The aim of such provisions is to prevent or limit the damage that an existing employee could do to the employer’s business with the knowledge they have gained and the relationships they have made during their employment.

How Do Restrictive Covenants Benefit Employers?

Departing employees may attempt to use confidential information, strategic plans, customer/client details or other information about their employer’s business to set up in competition or benefit their new employer. Restrictive covenants in employment contracts are beneficial to employers as they impede this and, indeed, often prevent it altogether.

In the event that an employer believes that a former employee has breached a post-termination restrictive covenant, they can take enforcement action by way of threatening, and if necessary commencing court proceedings for, an injunction and/or damages against the employee and/or their new employer or, if applicable, their new business entity.

Types of Restrictive Covenants

The standard types of restrictive covenants found in contracts of employment are:

  • Non-solicitation covenants – to prevent the employee approaching the clients, customers or suppliers of the former employer.

  • Non-dealing covenants – to prevent the employee dealing with clients, customers or suppliers of the former employer, irrespective of which party approached the other.

  • Non-poaching covenants – to prevent the employee poaching former colleagues.

  • Non-competition covenants – to restrict the employee from competing with the former employer i.e. by working for a competitor or setting up their own competing business.

The Importance of Carefully Drafted Restrictive Covenants

For a restrictive covenant to be enforceable, an employer must show that it is no wider than is reasonably necessary to protect its legitimate business interests. Legitimate business interests include:

  • protecting trade secrets and/or confidential information;
  • protecting trade connections with customers, clients or suppliers; and
  • maintaining the stability of the workforce.

When assessing the enforceability of post-termination restrictive covenants, the court will consider if they are reasonable, having regard to the interests of the parties and the public interest. It is not unusual for us to come across restrictive covenants which are drafted in such a way that there is little to no chance that a court would enforce them. To avoid the risk of unenforceable restrictive covenants, employers should tailor the covenant to the individual employee and take legal advice accordingly.

Further to the above, the question of reasonableness of a restrictive covenant will be considered at the time the covenant was entered into, so it is important to review them from time to time. For example, if an employee is promoted or otherwise changes role, their original restrictive covenants may no longer be appropriate or enforceable, and employers should review and update them as necessary.

The Importance of Incorporation

Even well-drafted restrictive covenants will not be enforceable if they are not properly incorporated within the employment contract.

It is common for employers to:-

  • enter into a binding agreement to appoint a new employee (often verbally), but to only issue a written contract containing restrictive covenants, and other terms and conditions which were not communicated prior to the appointment being agreed, afterwards; or
  • issue a first written contract, or perhaps an amended one, containing restrictions well into the employment

without the employee receiving any “fresh consideration”, i.e. anything in return for the new terms and conditions that they would not otherwise have received.

It is therefore also important to obtain appropriate advice and guidance in relation to the incorporation of restrictions, as well as their drafting.

Strategy

Last but by no means least, employers should be mindful that, if not handled correctly, to impose restrictive covenants, or any other new terms, on an existing employee can have implications for employment relations and, worse, can result in claims for breach of contract and, if the employee has more than 2 years’ continuous service, unfair dismissal; whilst collective consultation can be required where it is proposed to force contractual changes on 20 or more employees at one establishment. Strategy considerations are therefore another important aspect for specialist advice.

For further information, contact a member of Lanyon Bowdler’s employment team.

E’ is for Easter and for Use Class E

Easter this year not only represents arguably the most important date on the Christian calendar but also society as a whole stumbling into the light as we approach (hopefully!) the end of the restrictions on movement that we have learnt to live with over the last 12 months. In the world of planning, the government has, for the last year, rolled out several pieces of legislation – some to ease the economic and social impact of lockdown and others to make the planning system more flexible in general. On 31 March 2021, right before Easter, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, which grants permitted development rights to convert use class E buildings into dwellinghouses, was added to the group.

Use classes were created to allow the change of uses within a group of uses without the need to engage the planning system. The Use Class Order 1987 sets out what those the use classes are. The Permitted Development Order creates further flexibility by granting permitted development rights for changes between certain use classes. These changes do not require planning permission but may be subject to a less detailed prior approval process as well as limitations and conditions.

Use class E was created in September 2020 by regulations which reconfigured and changed the use class system. The following uses have been subsumed in the new use class E:

  • Display or retail sale of goods, other than hot food (shops)

  • Sale of food and drink for consumption (mostly) on the premises (restaurant and cafés)

  • Provision of financial services, professional services (other than health or medical services), or other appropriate services in a commercial, business or service locality

  • Indoor sport, recreation or fitness (not involving motorised vehicles or firearms)

  • Provision of medical or health services (except the use of premises attached to the residence of the consultant or practitioner)

  • Crèche, day nursery or day centre (not including a residential use)

  • Uses which can be carried out in a residential area without detriment to its amenity comprising offices to carry out any operational or administrative functions, research and development of products or processes and industrial processes - use classes: planning portal

  1. switching the use of buildings and land between the above uses does not require any consent under the planning system. The permitted development rights for changes between certain use classes will remain based on the old use classes until 31 July 2021, pending new legislation from the government.

In December 2020 the government consulted on a number of proposals including a proposed new permitted development right for the change of use from use class E use to houses stating:

Where there is a surplus of retail floorspace, quality residential development will help diversify and support the high street. It will create new housing opportunities including for those who will benefit from close proximity to services, such as the elderly and those living with disabilities. It will also make effective use of existing commercial buildings, bring additional footfall from new residents, and assist in the wider regeneration of town centre and other locations.”

As stated, on 31 March 2021, the latest amended order for permitted development rights was enacted. The order applies to England and Wales according to regulation 1(2) and despite the title of the order and the scope of the consultation in December.

It grants permitted development rights (Class MA of Part 3 rights in the permitted development order) for the change of use from use class E buildings to dwellinghouses. Before development is started, an application must be made to the local authority so that they may determine if prior approval is required as to the transport impact and flooding and contamination risks of the development, the impact on the intended occupiers of noise from a commercial area or effects from an industrial area, the impact on the characteristics and sustainability of a conservation area (if relevant) and the impact of the loss of certain services. Prior approval applications for this new right can be made from 1 August 2021.

The new use class is a significant step in simplifying the planning system and is something, along with the raft of legislation enacted in 2020 and 2021, on which lawyers and planners as well members of the public, whether applicants or objectors, will continue to need education and clarification. At Lanyon Bowdler, our planning team can assist in navigating through the use classes and linked permitted development rights. Please contact us for more information.

Losing Capacity Doesn’t Have to Mean Losing Control

Around 40% of people have a Will, even fewer have a Lasting Power of Attorney (“LPA”). A lot more people consider what will happen after they pass away but very few consider what will happen should they or a loved one lose capacity, or otherwise require assistance. Unfortunately, sometimes it takes a high profile story to remind us of the potential gaps in our own planning. Recently, many of us will have seen the devastating story of Good Morning Britain host, Kate Garraway.

Kate found herself in the unfortunate position where her husband, Derek Draper, fell ill with coronavirus. On top of the stresses involved with having a family member fall seriously ill, Kate has had to deal with the complicated legal obstacles in place that prevent her from managing her husband’s care or finances.

What is an LPA?

An LPA is the successor to what many will know as an Enduring Power of Attorney (“EPA”) and replaced it in October 2007.

As with its predecessor, it is a legal document that allows you to appoint one or more individuals, who unsurprisingly become known as your attorneys. These people can then assist you in making decisions or, if necessary, they can make decisions on your behalf.

With a carefully drafted LPA, losing capacity doesn’t mean losing control, you can give your attorneys the power to deal with all your affairs or you can limit their powers. You can define the attorneys’ authority.

A key difference between an EPA and an LPA, is that there are two main types of LPA:

  • property and financial affairs; and

  • health and welfare.

Property and Financial Affairs LPA

A property and financial affairs LPA gives your attorneys the power to make decisions about your finances, this can include:

  • paying bills;

  • buying or selling property;

  • collecting benefits or a pension; and

  • managing bank accounts.

As mentioned previously, you can give your attorneys the power to deal with some of your financial affairs, or only certain things. So, for example, this could be all of the things listed above or just two or three of them.

In Kate’s situation, this LPA could have assisted her in managing her mortgage or any accounts in Derek’s sole name.

It’s important to seek advice and to have your LPA worded very carefully to ensure that you give your attorneys the powers you want them to have and it is clear to them what authority they have to deal with your affairs.

This LPA can be used as soon as it is registered, and, if you elect for it to do so, before you lose capacity, with your permission of course. This means your attorneys can assist you with your financial affairs even when you are still capable. You might not think that this would appeal to you, and it is a personal choice to make, however, many people would have found this quite useful during the coronavirus pandemic where they have needed to shield or isolate.

Health and Welfare LPA

A health and welfare LPA offers something its predecessor doesn’t, it can allow your attorneys to make decisions on things like:

  • where you live;

  • your daily routine, including what you wear and what you eat;

  • medical care; and

  • moving into a care home.

As with the property and financial affairs LPA, you can make a health and welfare LPA which deals with all aspects of your personal welfare or just certain things.

For Kate, this would have given her legal authority to make decisions and manage Derek’s care.

Again, it’s important to seek advice and to have your LPA worded very carefully. There is also some overlap with what is called a Living Will and you should consider how one may have an effect on the other. It is therefore important to consult a specialist to ensure that your wishes are enacted as you intended.

This LPA can be used as soon as it is registered, but it is not possible to use it until you have lost capacity.

Do I really need one?

There are common misconceptions with what you can do in the absence of a power of attorney, many people believe that their next of kin will always get the final say when they are unable to make decisions for themselves, or that a couple with a joint bank account or a home in joint names can act for the other.

However, whether or not you will actually ever need an LPA is a very difficult question to answer and no one can say for sure. What we do know is that the unexpected can happen and I like to think of an LPA as an insurance policy, you never take insurance out planning to use it but you’re happy you have it when you do need it.

There are many reasons we might lose capacity over our lifetime, one in three of us will develop dementia and every ninety seconds in the UK someone is admitted to hospital with an acquired brain injury.

Having an LPA has the benefit of not only allowing you to choose the person in charge of making decisions for you, it makes it easier for your loved ones. Without one, your loved ones may need to apply to the Court of Protection and a deputy may need to be appointed. This can be a long and onerous process in a time of uncertainty.

What Can Lanyon Bowdler Do to Help?

With nearly twenty-two thousand applications for LPAs in 2019/20 being rejected by the Office of the Public Guardian, it can be important to consider legal advice when drafting the necessary documentation.

Our private client team has decades of combined experience in helping clients deal with their affairs.

We can assist in preparing your LPA or any side letters you may wish to accompany your documentation.

Contact a member of our team today to see how we can help you.

Do Workers have the Right to Carry-Over Payment where Annual Leave has been Taken but they have not been Paid for it?

In Smith v Pimlico Plumber Ltd, the Employment Appeal Tribunal has confirmed that any worker who has been permitted to take annual leave, but has not been paid for it, cannot carry-over a right to payment for that annual leave.

Mr Smith worked for Pimlico Plumbers Limited from August 2005 to May 2011. During this time, Mr Smith actually took periods of unpaid annual leave, Pimlico regarding Mr Smith as a self-employed independent contractor with no entitlement to paid annual leave. Following a dispute with Pimlico, Mr Smith terminated his contract with Pimlico claiming they had acted so as to fundamentally breach his contract with them.

On 1 August 2011, Mr Smith commenced a claim for holiday pay, amongst other things. Pimlico argued that Mr Smith was not an employee or a worker and therefore had no entitlement to paid annual leave, but they were unsuccessful in this argument when tested before the Supreme Court.

However, notwithstanding the ruling that Mr Smith was a worker and entitled to paid annual leave, the Employment Tribunal dismissed Mr Smith’s holiday pay claim on the basis that Mr Smith could not correctly claim for carried over accumulated holiday pay as he had, as a matter of fact, been permitted to take holiday but had not received payment for it. The Tribunal made the distinction between Mr Smith’s case and the facts in King v Sash Window Workshop, where the claimant had accrued leave but had not taken it during his employment.

Mr Smith appealed, but the Employment Appeal Tribunal upheld the decision and confirmed that the Employment Tribunal was not mistaken in its interpretation of King. It was noted that Mr Smith had not been prevented from exercising his right to take leave and was not deterred from taking annual leave because he knew he was not going to be paid. Unlike the claimant in King, Mr Smith took leave and benefited from periods of rest.

This is a very significant case for employers seeking to rectify historic paid annual leave deficiencies.

When are workers entitled to carry-over payment for paid annual leave?

King v Sash Window Workshop established that where an employer has told the worker that leave will be unpaid, and this has dissuaded the worker from taking leave, the right to any untaken Working Time Directive leave (4 weeks) will carry over, potentially until termination.

Workers must be given an effective opportunity to take their statutory holiday and employers must be able to show they have enabled workers to take their holiday.

For further information, contact a member of Lanyon Bowdler’s employment team.

Testing Times for Separated Families

The pandemic has raised significant issues for separated parents who have had to struggle with making decisions for their children, often in the face of objection or disagreement from their ex-partner.

Under the Children Act 1989 the holders of parental responsibility cannot make unilateral decisions for their children. That is to say, they should not make decisions without the other parents’ consent.

The pandemic has meant parents have had to consider;

  • Can a child move between two households during lockdown?
  • If the child is home schooling, which parent should be responsible for that and can normal contact arrangements continue?
  • If the parents live a significant distance from one another, should the parent travel to the child’s’ local area for contact to avoid the child having to travel unnecessarily, if so what happens if the hotels and local amenities are closed?
  • If vaccination is extended for children, can the parents agree the child should receive the vaccination?
  • Now the most pressing decision is what should happen during the school holidays, can the children travel abroad?

Most families share the school holidays and often the only factor they have to consider is that the time falls within their allocated time with their child, so as not to fetter the other parents time. Or whether sufficient information has been shared with the other parent about hotel details, travel arrangements etc.

Now the government task force is due to report on 17 May and only then will parents know the exact rules for overseas travel regarding tests and jabs.

If all goes to plan parents will be able to go abroad from 17 May but that will not be the end of the matter.

COVID-19 tests with a negative result taken hours before travel will almost certainly be required for all those returning to the UK.

What happens, therefore, if you are returning at the end of a half term week or the end of the summer holidays, when the child has to go back to school? Should you run the risk of being stuck in a foreign country, unable to return if you or your child has a positive test result? A decision that will impact the child’s education.

What happens if one parent plans to go on their holiday the day after the other parent returns from their summer holiday? The second parent will be unable to go if the child is stuck and cannot return to the UK, or is having to quarantine.

Self-employed or Workers? Supreme Court Unanimous Decision in Favour of Uber Drivers

From 17 March 2021, Uber has agreed to give its UK drivers a guaranteed minimum wage, holiday pay and a pension. This decision is a direct result of the Supreme Court’s decision that Uber drivers are considered “workers” and not “self-employed”, after they dismissed Uber’s appeal.

The judgment had been eagerly awaited since the initial Supreme Court hearing in 2020. However, the outcome was no great surprise, considering that it was the fourth time the courts had reached the same conclusion. The significance of this decision is that there is no further right of appeal and therefore Uber must now finally contend with a definitive ruling that their drivers are workers under UK employment legislation.

From 17 March 2021, Uber has made the following changes:

  • They will pay at least the National Living Wage for over 25s, irrespective of a driver's age.
  • All drivers will be paid holiday time based on 12.07% of their earnings, paid out on a fortnightly basis.
  • Drivers will automatically be enrolled into a pension plan with contributions from Uber alongside driver contributions.
  • Uber will continue to offer free insurance in case of sickness or injury as well as parental payments, which have been in place for all drivers since 2018.
  • All drivers will retain the freedom to choose if, when and where they drive.

The judgement comes after a long-running battle in the UK courts, led by two former Uber drivers, who won an employment tribunal claim in October 2016. Uber unsuccessfully appealed the decision four times, taking it all the way up to UK’s highest court.

In reaching their decision on establishing ‘worker status’, the Supreme Court emphasised five factors, previously highlighted by the Employment Tribunal, which they found were particularly indicative of a worker relationship:

  • Uber dictated how much drivers were paid and whether to refund passengers.
  • Drivers had no ability to negotiate the terms in relation to their contract with Uber.
  • Once a driver logged into the Uber app, they were constrained in rejecting trips as the rate of acceptance and cancellation was monitored.
  • Uber monitors a driver’s service through a rating system, and had the capacity to terminate a driver if the service did not improve after repeated warnings.
  • The relationship between the driver and the passenger was restricted to a minimum, preventing the driver from establishing a relationship with a passenger capable of extending beyond an individual ride.

Further implications for Uber

We have not seen the end of this particular case, since the worker status issue was only preliminary. It will now return to the Employment Tribunal to determine the compensation due to the drivers in respect of their claims for holiday pay and unlawful deductions from wages.

Further, there has been no mention by Uber of volunteering compensation to its drivers generally for past entitlements, and the minimum payments that Uber has said it will apply going forward will not be paid when drivers are logged on but not carrying out trips. The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto their app, not only when they are carrying out trips.

Numerous linked cases in the UK have been stayed pending the outcome in the Supreme Court and will now be recommenced, and the floodgates may now be open for many more.

If you are unsure of your employment status or work with contractors, it is best that you receive legal advice to ensure the validity of your agreement. Please contact our team.

Police, Crime, Sentencing and Courts Bill

Following the controversial scenes in Bristol over the weekend, the following are some of the ‘highlights’ of the Police, Crime, Sentencing and Courts Bill that the government is hoping to enshrine in law in due course.

Police Powers

The bill proposes amendments to the Public Order Act 1986, which civil liberty groups fear could significantly increase police powers to restrict people’s rights to assemble or congregate in public places, for example. It will also increase police powers to stop and search those suspected of carrying a blade, a controversial step given the current racial disparity in how searches are presently carried out.

Criminal Records

The government is proposing to reduce the time that previous convictions have to be disclosed to future employers for sentences under four years’ imprisonment and community orders. There are also plans to introduce a rehabilitation period for certain jobs where the sentence exceeds four years.

Out of Court Disposals

As there is significant evidence that diverting people from the criminal justice system reduces the likelihood of future reoffending, greater powers are proposed, such as diversion to address, for example, addiction or mental health issues.

Problem Solving Courts

There will be greater emphasis on courts to offer more intensive and structured support with rewards and incentives for progress but sanctions for disengagement. The aim is that such orders will be more responsive to the individual’s need and reduce reoffending in the process.

Increased Sentencing Powers

The maximum sentence for assault on an emergency worker will double from 12 months to two years.

  • Whole life orders (life imprisonment) will be imposed for child killers.
  • Causing death by dangerous driving will be increased to a maximum of life imprisonment.
  • Offenders sentenced for serious violent or sexual offences will no longer be automatically released at the halfway point of their sentence.

It will be interesting to see how much opposition the government faces in trying to enact the bill. If all of the proposals are passed, it will inevitably lead to more prison sentences being imposed for longer periods at a time when the prison estate is already under immense pressure due to numbers and underfunding. Please contact our crime team for more information.

Sleep-in Workers and the Minimum Wage

In Royal Mencap Society v Tomlinson-Blake and another case, the Supreme Court has held that care workers who were required to sleep at, or near, their workplace, and be available to be called on during the night, were not entitled to the national minimum wage (“NMW”) for the entirety of their sleep-in shifts. During this time, the workers were not working but merely ‘available for work’, meaning that they were entitled to the NMW only for time during which they were awake for the purpose of working.

This case puts to an end a long-held belief that sleep-in shifts could qualify for the NMW following British Nursing Association v Inland Revenue, where the Court of Appeal upheld an employment tribunal’s finding that employees were working throughout their night shifts even during the periods when they were expected to be sleeping.

This case will come as a relief to employers in the care sector, but will be a disappointment to unions who have been campaigning for improved pay and conditions in this already low-paid sector.

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