Emplaw Monthly - End of September 2015
The Immigration Bill 2015/16 - A Heads Up for Employment Specialists
This Article provides a summary of the employment related provisions set out in the Immigration Bill 2015/16 which had its First Reading in the House of Commons on 17 September 2015
Back to school – do you know what an employee's rights are?
As the children headed back to school, an Article on the rights to flexible working and time off for parents and carers
A national occupational health service?
A brief alert about the roll out of the Fit for Work (FFW) Service now available for employers across England and Wales
Focus on Emplaw Content
With the Immigration Bill focussing employers' minds on illegal working please see our Recruitment Guides drafted by Carrie Beaumont, Partner at Ortolan Legal. As well as covering matters such as the prevention of illegal working and background checks, they also include a checklist of matters to consider in the recruitment process.
As every month it seems there are important new TUPE cases, our incisive and detailed TUPE guides prepared by Nathaniel Caiden and Sally Robertson of Cloisters Chambers are an excellent reference tool.
Our Case Summary (below) of the ECJ decsion on working time in the Tyco case considers the implications for pay.
Employment Law News
Enforcement action against city trader
In a high profile case, a former derivatives trader, Tom Hayes, was found guilty of conspiracy to defraud in connection with manipulating the Libor rate and received a prison sentence of 14 years. The Financial Conduct Authority is now flexing its muscle and showing its readiness to take enforcement action against individuals. With the new senior managers and certification regimes soon coming into force, we can expect more robust action from the FCA and PRA.
HMRC Guide to tax and national insurance contributions treatment of business travel
HMRC have published a revised guide to the tax and NICs treatment of business travel by employees. It explains what counts as ‘business travel’ and for employees other than those using their own vehicles, the kinds of expenses which qualify for tax relief: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/455952/490.pdf
Trade Union Bill: second reading
The controversial Trade Union Bill has had its second reading in the House of Commons. The Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992 in the following ways:
- requiring a minimum 50% turnout in all industrial action ballots and a higher level of support in favour of industrial action for specified important public services
- setting out information requirements relating to industrial action: the information that must be included on a ballot paper; and information given to union members and to the Certification officer following a ballot
- specifying the arrangements for the timing and duration of industrial action, requiring two weeks’ notice of any action to be given to an employer, and providing that a ballot mandate for industrial action expires after four months
- setting out requirements on unions for the supervision of picketing
- replacing the current arrangements for a union member to contribute to a union’s political fund so that positive consent is required, and places requirements on unions to include more detailed information on expenditure from political funds in the annual return to the Certification Officer
- creating regulation-making powers in respect of paid time off for trade union duties and activities in the public sector
- setting out new investigatory powers and sanctions available to the Certification Officer and new arrangements for funding the Certification Office.
Immigration Bill 2015/16
The Immigration Bill 2015/16 has now been published. Part 1 deals with labour market enforcement and cracking down on illegal working.
Clauses 1-7 provide for the appointment of a new Director who will oversee the relevant enforcement agencies. Clauses 8-11 will make it a criminal offence to work illegally, with a sanction of a fine and/or custodial sentence; seize wages of illegal working as proceeds of crime; prosecute employers who turn a blind eye to employing illegal immigrants and increasing custodial sentences; closing businesses that flout the law.
The Secretary of State will also be given the power to introduce an immigration skills charge on employers who sponsor skilled workers from outside the EEA. The Bill also requires public authorities to ensure that public sector workers in customer-facing roles speak fluent English.
For more detail see this months article The Immigration Bill 2015/16 - A Heads Up for Employment Specialists
Enterprise Bill: first reading in the House of Lords
The Enterprise Bill has had its first reading in the House of Lords. The Bill:
- establishes a Small Businesses Commissioner to empower small businesses to resolve disputes with large businesses
- expands the deregulation target to include regulators
- gives the Treasury the power to restrict public sector exit payments
- protects the term apprenticeship in law, with a view to ensuring that apprentices have access to high quality training.
Progress of the Bill is recorded at http://services.parliament.uk/bills/2015-16/enterprise.html .A series of publications relating to the Bill are posted on GOV.UK at https://www.gov.uk/government/collections/enterprise-bill
Measures to ensure fair pay
BIS has announced a package of measures to ensure workers receive fair pay. These include:
- Doubling the penalties for non-payment of the National Minimum Wage and the new National Living Wage from 100% of arrears to 200%
- Increasing the enforcement budget
- Setting up a new team in HMRC to take forward criminal prosecutions against those who do not comply
- Ensuring that anyone found guilty will be considered for disqualification from being a company director for up to 15 years
A new team of compliance officers will have the power to use all the available sanctions, including penalties, prosecutions and naming and shaming the most exploitative employers
Acas guides on recruiting staff and inductions
Acas have launched two practical guides to help employers and managers recruit and ‘settle in’ staff
Acas guide on time off during the rugby World Cup
Acas has published guidance to help employers prepare for time off demands and performance issues that might arise during the Rugby World Cup period
Quarterly tribunal statistics April-June 2015
The latest statistics on all tribunal claims has been published. The key findings during the period April-June 2015 are:
- There was a 30% increase in receipts and a 21% decrease in disposals compared to the same period last year: most of these were not ET cases
- The caseload outstanding at the end of June 2015 was 363,500, down 40% on last year
- There were 5400 ET issue fees requested. Of these 68% had the issue fee paid outright and 21% were awarded a full or partial issue fee remission. 11% of claims were not taken any further
- 100 applications were received by the Gender Recognition Panel, the highest number of applications recorded in a quarter
No particular ‘degree’ of association necessary for associative discrimination complaint
The EAT in Thompson v London Central Bus Company Limited has held that for the purposes of an associative victimisation complaint, it was not necessary to establish a particular kind of relationship between the employee and others who have done a protected act.
Permanently incapacitated employee did not transfer under TUPE
Under Regulation 3(3)(a) Transfer of Employment (Protection of Employment) Regulations 2006 there must be an organised grouping immediately before a service provision change which has as its principal purpose the carrying out of activities for the client. Regulation 4(1) transfers those employees who are assigned to the organised grouping. When determining whether an employee is assigned, a tribunal must look at all the facts and take into account all relevant circumstances.
ECJ rules that working time for workers with no fixed workplace includes travel to first and from last customers
The ECJ has delivered a preliminary ruling in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL that where workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’.
Employee’s dismissal was discriminatory where her disability had a significant influence on the unfavourable treatment
Transfer of a business including assumption of subsidiary’s obligations and assets by majority shareholder can be a TUPE transfer
Culpability should not be decided by HR
The test to establish a fair misconduct dismissal is set out in BHS v Burchell  IRLR 379 that at the time of dismissal the employer must believe that the employee is guilty of misconduct; have reasonable grounds for so believing; and have carried out as much investigation as was reasonable in the circumstances.
No right to apply for rejection of claim to be reconsidered under rule 11 ET Rules