The Modern Slavery Act clamps down on big business

No precise date has yet been published
of its enforcement, but earlier this year the government announced that from October it will force commercial companies with
a turnover of £36m or more to publish an annual slavery and human trafficking statement.
Section 54 of the Modern Slavery Act 2015 provides that commercial organisations
must prepare a statement for each financial
year of the organisation.

A commercial organisation includes a
body incorporate (wherever incorporated) or a partnership (wherever formed), which carries on a business in any part of the UK. The statement should contain the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains and in any part of its business, or a statement that the organisation has taken no such steps.

The statement may include information about:

• The organisation's structure;

• Its business and its supply chains;

• Its policies in relation to slavery and human trafficking;

• Its due diligence processes in relation to slavery and human trafficking in its business and supply chains;

• The parts of its business and supply chains where there is a risk of slavery and human trafficking taking place and the steps it has taken to assess and manage that risk;

• Its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate; and

• The training about slavery and human trafficking available to its staff.

Further, if the organisation has a website, it must publish the statement on that website and include
a link to it in a prominent place on the homepage.

Definition of 'working time'

Unless an express term in one's contract defines 'working time' as commencing from the moment one leaves home for their first appointment and includes their journey home from their last appointment, most would assume that those journey's are made in one's own time. Otherwise, some sceptics may ask what incentive a worker has for leaving home, say, at 7.30am for a 9am appointment, when they could leave at 7am and be paid for an extra 30 minutes.

If employers bill, or can only bill, for the actual time spent with a client by a worker, then the CJEU's judgment in Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA (Case C-266/14)
is one of which to take particular note, as there
is the chance of an increase in costs along the chain.

The court declared that, where workers do not have a fixed or habitual place of work, the time they spend travelling each day between their homes and their premises of the first and last clients designated by the employer constitutes working time within the meaning of the Working Time Directive (2003/88/EC). The court considered workers to be carrying out their activity or duties over the whole duration of those journeys.

Some sectors could be more affected by the judgment than others, such as in the caring field. Also, at first glance, this judgment appears to open the floodgates for those workers on the national minimum wage where, for example, time spent travelling for the purpose of work are treated as hours of time work. 

However, regulation 34(1) of the National Minimum Wage Regulations 2015 excludes such time if, among other things, the travel time in question is between the worker's home and place of work, or a place of work or a place where an assignment is carried out. Time for an amendment, perhaps?

Employee while 'temporarily' laid off

Can a claimant be part of 'an organised grouping of employees' under regulation 3(3)(a) of TUPE who, at the material time, was, 'temporarily' laid off? The EAT considered this question in Inex Home Improvements Ltd v Hodgkins & Ors UKEAT/0329/14/JOJ.

The claimants worked on contracts that had been subcontracted to the respondent by another organisation. They were temporarily laid off in anticipation that a contract would be won. However, the contract was provided to another subcontractor. An employment tribunal found that the claimants did not transfer under TUPE because, immediately prior to the date of the service provision change, as they were not working due to their being temporarily laid off, they were no longer 'an organised grouping of employees.'

Allowing the appeal, the EAT held that a temporary absence or a cessation from work did not deprive employees who had been involved in relevant activities of their status as an organised grouping of employees, which, in itself was a straightforward question of fact.

Statutory apprenticeships

On 16 September the Enterprise Bill 2015-16 had its first reading in the House of Lords. Although the substantive work on the Bill is not scheduled to take place until the second on 12 October, it is worth taking note of one proposal in particular: clause 19 makes it a criminal offence to offer an apprenticeship or training course that is not a statutory apprenticeship.

Employing illegal workers

Staying on the criminal offence theme, on 17 September the Immigration Bill 2015-16 had its first reading in the House of Commons. The second reading is scheduled to take place on 13 October. However, among other things, the Bill proposes to 'widen' the criminal offence of employing an illegal worker by amending section 21 of the Immigration, Asylum and Nationality Act 2006. The legislation would read (amends in italics): A person commits an offence if he employs another (the employee) knowing or having reasonable cause to believe that the employee is an adult subject to immigration control.

Also, a person guilty of the said offence shall be liable on conviction on indictment from the current maximum term of imprisonment of two to five years.

Tribunal fees review

Finally, the Court of Appeal's rejection of Unison's appeal on 26 August, the decline in cases heard at employment tribunals, and the introduction of fees have been widely reported. However, some may take heart from the House of Lords's research briefing published on Tuesday 15 September, 'Employment tribunal fees.'

On 11 June 2015, the government announced the start of the review to be carried out by the Ministry of Justice. The review will include, among other things:

• The effectiveness of the new fee remission scheme;

• The general trend of the number of cases appearing at the tribunals before the fees were introduced;

• To what extent there has been iscouragement of weak or unmeritorious case;

• Whether there has been any impact because of changes in employment law; and

• Other reasons for changes in user behaviour. SJ

Ryan Clement is a barrister practising from Conference Chambers

@ryanwclement

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