Emplaw Monthly - July 2015

New This Month

National Minimum Wage, Living Wage, National Living Wage – who gets what

Following this month’s budget, this article explores the differences and how they are calculated

Strike laws set for radical shake up

Following this month’s budget, this article explores the differences and how they are calculated

Focus on Emplaw Content

This month we have added an easy reference chart on time limits for claims. This complements the chart for qualifying period for claims and our step by step guide to tribunal procedure in the Enforcement topic.


Employment Law News

Trade Union Bill

The government has published a new Trade Union Bill 2015-2016. The Bill makes a number of proposals, including:

  • Ballot thresholds: the Bill proposes that at least 50% of all eligible trade union members should have voted in the industrial action ballot
  • There is a proposed additional threshold for workers in ‘important public services’, where 40% of eligible members must have voted in favour of industrial action
  • Information on voting paper: voting papers will need to include more detail and will have to specify what other type of industrial action is proposed if a strike is not proposed.
  • Information about ballot results: it is proposed that members should be told about the number of individuals entitled to vote; whether the number of votes cast in the ballot is at least 50% of the number of individuals entitled to vote; where the important public services threshold applies, whether the number voting ‘yes’ is at least 40% of eligible members
  • Picketing: there are proposed additional requirements for picketing to be lawful.
  • A new definition of ‘facility time’ is proposed.

Further details are available in the explanatory memorandum to the Bill: http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0058/en/16058en01.pdf

The Bill is available at: http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0058/16058.pdf

Consultations: industrial relations

To accompany the Trade Union Bill 2015/16, the government has published a consultation paper on tackling intimidation of non-striking workers, a consultation on hiring agency staff during strike action: reforming regulation and on what occupations should be included in the 40% important public services ballot threshold

https://www.gov.uk/government/consultations/tackling-intimidation-of-non-striking-workers

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445289/BIS-15-416-regulation-7.pdf

https://www.gov.uk/government/consultations/ballot-thresholds-in-important-public-services

Consultation: Closing the gender gap

The government has published a consultation on closing the gender gap, with a view to making regulations in early 2016: these will require companies with at least 250 employees to publish gender pay information.

https://www.gov.uk/government/consultations/closing-the-gender-pay-gap

The Budget: employment proposals

The Budget was delivered on 8 July 2015 and contains several proposals which have implications for employment law:

  • Introduction of a National Living Wage for workers aged 25 and over. This will be in excess of the National Minimum Wage, which remains in place. The government’s target is £9 by 2020.
  • Corporation tax rate to be cut to 19% in 2017 and 18% in 2020.
  • Increase in the number and quality of apprenticeships in England to 3 million, putting control of funding in employers’ hands. A levy will be put on large employers to fund the new apprenticeships.
  • Simplification of the tax system: from April 2016 there will be a statutory exemption for small benefits in kind costing less than £50 (Finance Bill 2016).
  • From 6 April 2016 the government will increase the National Insurance Contributions annual employment allowance from £2,000 to £3,000.

Leave to appeal in First Group v Paulley

The Supreme Court has granted leave to appeal against the Court of Appeal’s decision in FirstGroup plc v Paulley [2014] EWCA Civ 1573 that a bus operator’s policy of requesting but not requiring passengers to make way for wheelchair users did not breach the Equality Act 2010.

Acas guides on right to antenatal and adoption appointments and surrogacy

Acas has published a new guide to help explain leave rights that are available for antenatal and adoption appointments. The new includes ‘top tips’ that employers and parents should be aware of when considering leave requests. It has also published a separate guide on surrogacy to explain how potential parents could qualify for certain leave rights and pay.

http://www.acas.org.uk/index.aspx?articleid=5342

http://www.acas.org.uk/index.aspx?articleid=5343

Acas guide on staff pay

Acas has launched a new guide for small firms that covers the basics of employment law on staff pay. It is intended to help small and medium-sized businesses stay on the right side of the law and ensure that pay issues are handled correctly.http://www.acas.org.uk/index.aspx?articleid=5308

Draft Maternity Leave Directive withdrawn

The EU Commission has withdrawn the proposed revised Maternity leave Directive, first put forward in 2008. The lack of progress by the co-legislators meant the Commission decided to withdraw its proposal. The Commission intends to present a broader initiative which will continue to promote the objectives of the previous proposal and provide minimum protection.

Early conciliation: first year results

Acas has published reports on its first year of early conciliation, which show that it has dealt with over 83,000 EC cases between April 2014 and March 2015. Three out of four employers and employees agreed to try EC and eight of ten users indicated that they were satisfied with the service.

Of cases that were notified to Acas between April 2014 and December 2014: 15% resulted in a COT3; 63% did not progress to an ET claim; 22% progressed to a claim but more than half were subsequently resolved by Acas.

Further findings are available at:

http://www.acas.org.uk/index.aspx?articleid=5351

http://www.acas.org.uk/media/pdf/5/4/Evaluation-of-Acas-Early-Conciliation-2015.pdf

Employment Tribunal Fees

The Justice Committee of MPs is holding an inquiry into the effects of the introduction and levels of court fees and charges including Tribunal fees. This is separate to the Post Implementation Review covered in our June Article at https://www.emplaw.co.uk/article/tribunal-fees-review-no-imminent-changes

CASES: 

Plumb v Duncan Print Group Ltd UKEAT/2015/0071

Worker may carry forward holiday entitlement under Working Time Regulations for up to 18 months

 

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R (on the application of Hottak and anor) v Secretary of State for Foreign and Commonwealth Affairs and anor [2015] EWHC 1953

Afghan interpreters in Afghanistan not entitled to rely on Equality Act 2010

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Case Summary Tag: 

Adeshina v St George’s University Hospitals NHS Foundation Trust and others UKEAT/0293/14

Procedural flaws can be corrected on a rehearing in the disciplinary process

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E Ivor Hughes Educational Foundation v Morris and others UKEAT/0023/15

Duty to collectively consult in a redundancy situation arises when there was a fixed, provisional intention to close School

The point at which an employer is obliged to collectively consult over redundancies of 20 or more employees under section 188 Trade Union and Labour Relations (Consolidation) Act 1992 has been the source of much case law. In E Ivor Hughes Educational Foundation v Morris and others the EAT had to consider when this duty arose in the context of a school closure as a result of falling pupil numbers.

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Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677

When ET considers band of reasonable responses: distinction with substitution of its own opinion

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Case Summary Tag: 

Moyer Lee and others v Cofely Workplace Ltd UKEAT/0058/15

Threshold for consultation rights under ICE Regulations:  ‘undertaking’ means legal entity

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Case Summary Tag: 

Home Office (UK Border Agency) v Essop and others [2015] EWCA Civ 609

In a claim for indirect discrimination, employee must show PCP affects both the group with protected characteristic and claimant employee

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Hill v HMRC [2015] UKFTT 0295

Compensation paid under a settlement agreement for change in contract is taxable as emoluments from employment, not as a potentially tax free termination payment

In Hill v HMRC the First-tier tax tribunal held that £30,000 paid as compensation under a compromise agreement should be taxed as emoluments from employment rather than as a sum paid on termination of employment which benefits from the £30,000 tax exemption under section 401 Income Tax (Earnings and Pensions) Act 2003 (ITEPA).

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Case Summary Tag: 

Patterson v Castlereagh Borough Council [2015] NICA 47

Voluntary Overtime can be included in statutory Working Time holiday pay calculation

The Northern Ireland Court of Appeal heard an appeal from Mr Patterson in relation to his claim that there had been an unlawful deduction in that his holiday pay did not take into account the voluntary overtime he worked as an assistant plant engineer. A tribunal had rejected his claim that voluntary overtime should be included in the calculation.

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Northampton Regional Livestock Centre Company Ltd v Cowling and another [2015] EWCA Civ 651

Joint and several liability for partners even where breach occurred after one partner’s resignation

The duties of partners are set out in the Partnership Act 1890. Section 10 of the Partnership Act sets out the rules for joint and several liability. The firm is liable to the same extent as any partner for any wrongful act or omission of any partner acting in the ordinary course of business of the firm, or with the authority of his co-partners.

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Chief Constable of West Midlands Police and others v Harrod and others UKEAT/0189/14

No indirect discrimination where pension based on age

The EAT in West Midlands Police v Harrod held that Rule A19 of the Police Pensions Regulations 1987 (which allowed for the retirement of police officers who met certain criteria) disadvantaged officers over the age of 48; however in order to meet the Government’s requirement to make a 20% cut in budget, the use of this provision to achieve cuts was found to be justified. The claims for indirect age discrimination therefore failed: what was done was a proportionate means of achieving a legitimate aim.

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