INSIDER JULY 2018

INSIDER JULY 2018

July 2018

CARERS SLEEP RULING Clarity for care providers THE BREXIT WHITE PAPER Good news for employers? FROZEN FOOD LISTERIOSIS Frozen vegetables recal led al l over Europe HOW TO STOP ALLERGENS FALLING OFF THE AGENDA Industry experts publ ish new white paper

THE BREXIT WHITE PAPER The Government has published its long-awaited Brexit white paper laying out the plan for the way in which the UK will leave the EU on 29 March 2019. While there is still uncertainty as to how the EU will respond and the final details of any Brexit deal are far from clear, the briefing does contain good news for employers. As well as a proposed free trade area for goods, which would ensure that businesses could continue operating on their current value and supply chains and avoid a hard border with Ireland, the document also makes it clear that all current employment laws will remain in effect post-Brexit. In her introduction to the document, Prime Minister Theresa May says that it “would maintain our current high standards on consumer and employment rights.” This is made clearer in section 1.6.5 Social and employment where it states that: 121. The UK firmly believes in the importance of strong labour protections while also embracing the opportunities arising from the changing world of work. Existing workers’ rights enjoyed under EU law will continue to be available in UK law on the day of withdrawal.

Enrique Garcia is an employment law consultant for the ELAS Group. He says: “The UK has been ahead of the curve when it comes to employment law and many of our current laws already go further than many in the EU. As noted in the white paper, this includes parental leave, flexible working and equality. The Taylor Review has also prompted change within UK law and we expect to see the UK continue to lead from the front. “Dependent on the final nature of the Brexit deal, the current news is that the government do not plan to renege on any existing employment law. This is good news for employees from a rights point of view as well as employers, who will no longer have to worry about getting up to speed on a myriad of legal changes. It does, however, mean that all the unpopular laws will stay in place e.g. you’re not allowed to harmonise terms after a TUPE transfer. Discrimination and equality laws will remain unchanged, holiday pay is here to stay as well Agency Worker’s Rights (AWR). “Of course, this doesn’t mean that there won’t be any changes in the future. One of the driving factors behind Brexit was the desire to take back control over the laws and Parliament will decide which legislation is adopted in the future. For now, at least, companies can relax somewhat and know that as long as they are compliant with all existing legislation they will be ok post- Brexit.”

CARERS SLEEP RULING

The ruling in the case of Royal MenCap Society v Tomlinson-Blake finally offers some clarity in an area of employment law that has historically been troublesome and had a severe financial impact on many care providers – some of which had been facing bills of hundreds of thousands of pounds should the decision have gone the other way. They will be breathing a huge sigh of relief. Emma O’Leary is an employment law consultant for the ELAS Group. She says: “Historically the care sector has paid a flat rate for sleep-in shifts i.e. shifts where the carer is required to be present should a service user need assistance during the night but can otherwise sleep in facilities provided. Case law over the years has challenged this which lead to flat rates being unlawful and carers being entitled to the National Minimum wage, even if they were asleep. The Court of Appeal has found that carers who sleep at a client’s home, while technically being on call, are not entitled to the National Minimum Wage while they are asleep.

The care sector, which was already in crisis, suffered a huge financial burden as a result and faced the prospect of having to make back payments to carers who had been receiving flat rates of pay for years. “Last Friday’s ruling reversed this position. This means that if the carer is available for the purpose of working, at or near his/her place of work, and is provided with facilities for sleeping with the intention that they will be able to sleep, they need only to be paid NMW for the hours that they are actually awake for the purpose of working. “This lifts a significant burden from the care industry. It means that they are no longer liable for back pay and care providers can review their current rates for sleep ins. However, as a word of caution, we would not advise care providers to simply cease all sleep-in payments and revert to flat rates as there may still be contractual obligations to consider. This decision by the Court of Appeals does, however, certainly lighten the load and we can advise on how to deal with this”

FROZEN FOOD LISTERIOSIS The Food Standards Agency (FSA) has issued a warning following a Europe-wide listeriosis outbreak that has been linked to frozen vegetables. This follows an investigation by the European Food Safety Authority (EFSA) into the deaths of nine people in five countries since June 2015 which confirmed that the deaths were caused by Listeria monocytogenes. The five countries affected are the UK, Austria, Denmark, Finland and Sweden. The outbreak has been linked to a Hungarian plant and a recall has been issued on all frozen vegetable products which were produced there. Fiona Sinclair is director at leading UK food safety consultancy STS. She says: “Although there is limited information available about this outbreak, listeria monocytogenes is a bacterium which is commonly found in dust, dirt and soil so it can be present on raw vegetables. While thorough cooking would ordinarily destroy the

“As this outbreak appears to have occurred over a prolonged time frame, it could be due to the presence of biofilms in the production environment. Biofilms are where the bacteria form a protective layer on a surface; if food then comes into contact with this surface, contamination can occur. Biofilms are stubborn and can be difficult to eliminate from a food production environment as they’re often resistant to the usual cleaning process i.e. chemicals and methods of cleaning. If persistent biofilms are found in a manufacturing environment, this can be another potential source of food contamination. “Listeriosis has an unusually long incubation time compared to other food borne illnesses; it can be up to 90 days between consuming the contaminated food and developing symptoms. This means that it can be difficult to identify the source of illness sometimes, and often it’s only established through epidemiological >Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7

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