Emplaw Monthly - Summer 2015

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Feature - Settlement Agreements - to tax or not

This article provides a useful summary of the principles that apply to the taxation of sums paid under a settlement agreement and the ambitions of the current HMRC Consultation on reform. It also examines the issues involved in the recent case of A v HMRC. The topic is covered in further detail in the updated law card Tax - Post Termination Issues

Focus on Emplaw Content

On the subject of settlement, do take a look at the topic Settlement of Disputes which includes guides to protected conversations, the  without prejudice rule and settlement agreements, all drafted by barrister Declan O'Dempsey from Cloisters.

Following the publication of Acas guides on ante natal and adoption appointments, do take a look at our detailed guides under the topic Maternity and Parental Rights, Flexible Working, drafted by us and barrister Lucy Boyle from 12 King's Bench Walk.

Emplaw on line - up to date, easy to search with information you can trust

Employment Law News

Equality and Diversity Guides

Acas has launched a series of equality guides to help employers and managers identify, tackle and prevent discrimination in the workplace. It has published three guides offering practical advice:

Employment Tribunal Fees

The Court of Appeal has dismissed Unison’s challenge to the ET fees system (reported in Cases below) but the union has applied for leave to appeal to the Supreme Court .

Meanwhile the Scottish government has announced its intention to abolish tribunal fees in the Foreward to its Programme for Government 2015-16

CAB report on bogus self-employment

The CAB has published a report on what it terms ‘bogus’ self-employment, where employees are led to believe that they are self-employed when in fact they satisfy the tests of employee status. The CAB criticises the complexity of the rules governing employee status, citing a respondent to its survey who comments ‘I find it absolutely unbelievable because they have made this legislation so complicated that unless you are a lawyer or a judge, you cannot tell’. The report urges coherent simplification and better support to businesses and workers.

https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/work-policy-research/neither-one-thing-nor-the-other/

Capping public sector exit payments

On 31st July HM Treasury published a consultation on proposals to cap the value of exit payments at £95,000. The consultation closed on 27 August 2015.

https://www.gov.uk/government/consultations/consultation-on-a-public-sector-exit-payment-cap/consultation-on-a-public-sector-exit-payment-cap

Meanwhile draft Regulations have been published to implement Sections 154-157 SBEEA which gives HM Treasury (and the Scottish Ministers in Scotland) the power to require certain public sector workers to repay exit payments where an individual is re-employed in the same part of the public sector after a period of less than one year. The Regulations are intended to come into force on 1 April 2016. 

Fluent English requirement for public sector workers

New legislation will require all public sector workers with public facing roles to speak fluent English. This requirement will be brought in as part of the new Immigration Bill.

https://www.gov.uk/government/news/all-public-sector-employees-who-work-directly-with-the-public-to-have-fluent-english

Whistleblowing Report

The whistleblowing organisation Public Concern at Work has published research on whistleblowing. Headlines from the report are:

  • the top issue raised in 2014 was financial malpractice (18%)
  • the number of ethical concerns has risen by 50%
  • 22% of calls to the advice line were from the education sector
  • in most cases (52%) the employer’s response was to deny or ignore whistleblowing concerns
  • half of the whistleblowers who contacted PCAW were dismissed or resigned after raising their concern. Eight out of ten whistleblowers suffered some form of reprisal.

http://www.pcaw.org.uk/files/2014%20Whistleblowing%20Report.pdf

Improved fit note training required for employers

A study by Nottingham University and commissioned by the Institute of Occupational Safety and Health has shown that fit notes have not been used as intended. The research indicated that fit notes have not been used to their full potential by doctors, patients and employers to manage sick leave.  The report recommends that there should be better education and training in fit note use as well as tighter management of the process. http://www.iosh.co.uk/fitnote

Meanwhile the Fit for Work (FFW) Service is now available for GP referral in all of England, Scotland and Wales. http://fitforwork.org/

FCA Handbook

The new Financial Conduct Authority Handbook and Prudential Regulation Authority Rulebook websites launched on 29 August 2015.https://www.handbook.fca.org.uk

Crackdown on employing illegal immigrants

The government has announced another crackdown on illegal immigration, with a particular focus on care homes, building sites and cleaning firms. The government also announced on 25 August 2015 that the Immigration Bill will create a new criminal offence of illegal working which will carry a custodial sentence of six months and give the authorities power to seize earnings from illegal migrants. Businesses who are discovered to use illegal workers will no longer be able to claim lack of knowledge: they will have to show that they carried out the necessary checks before recruiting staff.

Home Office consultation on modern slavery in the supply chain

The Home Office has published the results of its consultation seeking views about the transparency in supply chains provisions found in the Modern Slavery Act 2015. Part 6, section 54 (Transparency in Supply Chains etc) of the Act introduces a requirement for commercial organisations over a certain size to disclose, on an annual basis, the steps taken to ensure that slavery and human trafficking is not taking place in their organisation or associated supply chains.

The Government has announced its intention that Part 6 should come into force in October 2015 and it clear from the consultation outcome that businesses with a turnover of £36 million will need to have some form of risk analysis and supply chain mapping in order to meet their obligations under the Act.

National Minimum Wage

The Government has launched a National Minimum Wage Campaign to gives employers the chance to catch up and pay the correct National Minimum Wage. It includes the publication of guidance, forms and case studies found at  https://www.gov.uk/government/collections/national-minimum-wage-campaign#campaign-guidance

Cases

 

 

CASES: 

British Waterways Board v Smith UKEAT/004/15

Bad mouthing the boss: the perils of social media

The EAT decision in British Waterways Board v Smith involves the use of Facebook and the issue of how long an employer can wait before acting after the commission of misconduct.

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Case Summary Tag: 

Coles v Ministry of Defence UKEAT/0403/14

Agency workers are entitled to be informed of job vacancies but not to be considered equally with permanent staff

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Ibarz v University of Sheffield UKEAT/0018/15

Fees repayable by losing party where fees were originally paid by claimant’s union

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R (Unison) v Lord Chancellor and another [2015] EWCA Civ 935

Court of Appeal dismisses Unison’s challenge to ET fees system

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Grisanti v NBC News Worldwide Inc ET/2200964/15

Breach of contract claim in ET must be brought within three months of termination and six year cut-off for contract claims does not apply

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Case Summary Tag: 

Services for Education (S4E Limited) v White and Birmingham City Council UKEAT/0024/15

Continuity of service for TUPE purposes

The EAT upheld an ET’s decision that a music teacher who worked for Birmingham Council on a succession of fixed term contracts each lasting for the academic year 1 September – 31 July and who was transferred to a new provider, S4E, pursuant to TUPE could rely on past continuity of service when the transfer took effect on 1 September.

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Case Summary Tag: 

Dawson-Damer and others v Taylor Wessing LLP and others [2015] EWHC 2366

Disproportionate to order compliance with subject access request

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