Emplaw Monthly - March 2015

Employment Law News

April Changes

April will be a busy month for advisors and HR departments with a number of legislative changes coming into force which will require policy updates and advice:
 
From 5 April 2015


Unpaid Parental leave

The Maternity and Parental Leave etc. (Amendment) Regulations 2014 come into force on 5 April 2015 removing a limitation on parental leave so as to permit the leave to be taken at any time before a child’s eighteenth birthday. In addition the Regulations amend the provision on the right to return after maternity and parental leave.

http://www.legislation.gov.uk/uksi/2014/3221/contents/made 

Right to attend adoption appointments

Section 128 Children and Families Act 2014 introduces new sections 57ZJ – 57ZS into the Employment Rights Act 1996 to provide for the right to paid time off work to attend adoption appointments with effect from 5th April, As a result employees and qualifying agency workers who are proposing to adopt will be entitled to take paid time off work to attend to attend five adoption appointments. Where there are joint adopters, one of them may take paid time off to attend up to five appointments while the other may take unpaid time off to attend up to two. The time off which can be taken for each appointment is a maximum of six and a half hours.

http://www.legislation.gov.uk/ukpga/2014/6/section/128 

Shared Parental Leave

The right to shared parental leave arises under section 117 of the Children and Families Act 2014 which amends Part 8 Employment Rights Act 1996 and provides that the Secretary of State may make Regulations entitling qualifying employees to take shared parental leave.
http://www.legislation.gov.uk/ukpga/2014/6/part/7/crossheading/shared-parental-leave

The Shared Parental Leave Regulations 2014 apply to children whose expected week of birth begins on or after 5 April 2015. The Shared Parental Leave Regulations 2014 (“the Leave Regulations”) and the Statutory Shared Parental Pay (General) Regulations 2014 (“the Pay Regulations”) provide an entitlement for a mother/adopter and a child’s father/adoptive parent or a mother’s or adopter’s partner to take shared parental leave and pay. The right to shared parental leave and statutory shared parental pay are new statutory rights for employees with a partner who is working, or has recently been working (whether employed or self- employed). Eligible employees will be able to share up to 50 weeks of shared parental leave and up to 37 weeks of statutory shared parental pay.
http://www.legislation.gov.uk/ukdsi/2014/9780111118856
http://www.legislation.gov.uk/ukdsi/2014/9780111118832


The Shared Parental Leave and Paternity and Adoption Leave (Adoptions from Overseas) Regulations 2014 and the Statutory Shared Parental Pay (Adoption from Overseas) Regulations 2014 come into force entitling couples who adopt a child from overseas to adoption leave and pay.

http://www.legislation.gov.uk/ukdsi/2014/9780111121542/contents

Adoption leave extended to fostering

The Paternity and Adoption Leave (Amendment) (No2) Regulations 2014 amend the Paternity and Adoption Leave Regulations 2002 with effect from 5 April 2015 .The Regulations confer a right to take paternity leave and adoption leave in connection with the adoption of a child. These Regulations amend the definition of matched for adoption and introduce a definition of “placed for adoption” in the Leave Regulations to include placement under section 22C of the Children Act 1989. They provide new rights to adoption leave to local authority foster parents who are prospective adopters if they have been notified that a child is to be placed with them under section 22C of the Children Act 1989 following consideration in accordance with section 22C(9B)(c) of that Act. The Regulations also provide new rights to paternity leave to the spouses, civil partners and partners of these prospective adopters.

http://www.legislation.gov.uk/ukdsi/2014/9780111121634/contents

From 6 April 2015

National Minimum Wage

The National Minimum Wage Regulations 2015 S.I. No 2015/621 come into force on 6 April 2015.

They are found at http://www.legislation.gov.uk/ukdsi/2015/9780111127964 and consolidate existing regulations with the result that over 20 individual sets of regulations are revoked

The government has adopted the recommendations of the Low Pay Commission and the rates will be as follows from October 2015:
The national minimum wage is the single hourly rate of:
(a) £6.70 for a worker who is aged 21 years or over;
(b) £5.30 for a worker who is aged 18 years or over (but is not yet aged 21 years);
(c) £3.87 for a worker who is aged under 18 years;
(d) £3.30 for a worker to whom the apprenticeship rate applies

http://www.legislation.gov.uk/uksi/2015/621/contents/made

Separately, the Chancellor announced in the Budget that National Insurance Contributions will be abolished for workers aged under 21 from April 2015.

Increase in a week’s pay 

The Employment Rights (Increase of Limits) Order 2015 (SI 2015/226) increases the cap on a gross ‘week’s pay’ which is used in calculating certain statutory entitlements including the basic award in an unfair dismissal claim and statutory redundancy payments. The cap increases from £464 to £475 and consequently the maximum basic award that can be awarded will increase from £13,920 to £14,250.
 
Similarly the maximum compensatory award for unfair dismissal will be increased from £76,574 to £78,335. As such, for any dismissals which take effect on or after 6 April 2015 the cap on the compensatory award is the lower of £78,335 or 52 weeks' pay.

Increase in statutory payments

Statutory pay for maternity, shared parental leave, adoption and paternity will increase from £138.18 to £139.58 per week. The weekly rate of statutory sick pay will increase from £87.55 to 88.45 per week. 

Driving while under the influence of drugs

The Crime and Courts Act 2013 (Commencement No1)(England and Wales) Order 2014 SI 2014/3268 (which amends the Road Traffic Act 1988) made it illegal from 2 March 2015 to drive when over certain limits for certain drugs. Employers may wish to amend their disciplinary policies to reflect these changes.

Tribunal Quarterly Statistics

The Ministry of Justice has published the last quarter’s tribunal statistics that indicate a slight increase in tribunal claims although the figure generally remains low. Separately the Employment Law Bar Association has written an open letter to the Justice Secretary stating that tribunal fees are a bar to access to justice and calling for an urgent review of the system. In addition, His Honour Judge Brian Doyle, President of Employment Tribunals, has given a speech at the Sweet & Maxwell Employment Law Conference at which he stated that the introduction of fees has not led to better funding of tribunals but the review of the system has unsurprisingly been postponed until after the general election. 


Acas shared parental leave materials

Acas has published a set of guidance and other materials to assist employers and employees with the introduction of shared parental leave. The materials include useful template letters.

http://www.acas.org.uk/index.aspx?articleid=4911


Revised Acas Code on Disciplinary and Grievance Procedures 

The revised Acas Code of Practice on Disciplinary and Grievance procedures has been approved and took effect on 11 March 2015..The changes relate specifically to the right to be accompanied as covered in paragraphs 14-16 and 36-38 of the Code and follow on from the judgement in Toal & Anor v GB Oils Ltd  [2013] UKEAT. The amendments confirm that an employer must agree to a worker's request to be accompanied by any chosen companion from one of the statutory categories, namely a fellow worker, trade union representative or official. The revised Code sets out that the statutory requirement for a request by a worker to be accompanied at a disciplinary or grievance meeting to be "reasonable" applies to the making of the request, not to the worker's choice of companion.

Acas has also published updated non-statutory guidance.
http://www.acas.org.uk/media/pdf/l/s/Acas-response-to-the-public-consultation-on-the-revised-paragraphs-of-Acas-code-of-practice-discipli.pdf


Small Business, Enterprise and Employment Act 2015

The Small Business Enterprise and Employment Act  2015  received Royal Assent on 26th March 2015. Its provisions include requiring the government to make regulations concerning mandatory gender pay reporting under section 78 of the Equality Act 2010 ‘as soon as possible’ and in any event within 12 months.  

The Act also amends the ERA1996 to make exclusivity terms unenforceable in zero hours contracts. 

CASES: 

Lock and others v British Gas Trading Ltd [2012] ET

Commission earned on sales achieved to be included as part of holiday pay

An employment tribunal has ruled in the long running case of Lock and ors v British Gas Trading Ltd that commission payments earned on sales achieved by an energy trader must be taken into account when calculating holiday pay and that the Working Time Regulations (Regulation 16(2) is the relevant provision) were capable of being interpreted in this way. 

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General Municipal and Boilmakers Union v Henderson/Henderson v GMB [2015] EAT

Discrimination on grounds of ‘left wing social democratic beliefs’

 

The EAT in GMB v Henderson/ Henderson v GMB has overturned a tribunal decision that Mr Henderson had suffered unlawful direct discrimination and harassment on the basis of his ‘left wing social democratic beliefs’. Mr Henderson was a regional organiser for the GMB whose job included undertaking political work as part of the region’s political efforts on behalf of the Labour Party. He was suspended in connection with a number of matters including challenging the authority of line management and the regional secretary and making serious allegations of collusion between the GMB and the Labour party in respect of suspension from the Labour party. 

 

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McGrath v Ministry of Justice [2015] EAT

ET lay member could not compare himself to an ET judge for purposes Part Time Workers Regulations.

The choice of a comparator in discrimination cases is often a very difficult one. In McGrath v Ministry of Justice, Mr McGrath, an employment tribunal lay member complained that as a part time judicial officer the MoJ excluded him from the judicial pension scheme. He brought a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations and identified as his actual comparator a full time salaried employment judge. 

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Goldwater and others v Sellafield Ltd [2015] EAT

ET does not have power to make costs order for issue and hearing fee where they have been paid by the union.

The EAT in Goldwater v Sellafield Ltd has made a costs ruling that where the issue fee and hearing fee were paid by the union GMB, under Rule 34A(2A), no costs order can be made. The wording of Rule 32A(2A) provides, ‘”costs” includes fees… incurred by or on behalf of a party…in relation to the proceedings’. 

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Ottimo Property Services Ltd v Duncan and Warwick Estate Properties Ltd [2015] EAT

TUPE can apply where services are provided to a group of persons.

A service provision transfer under TUPE 2006 occurs where there is a relevant transfer. In the context of a service provision change, this is where a person ceases to carry out activities on its own behalf and assigns them to another person to carry out; the activities cease to be carried out by a contractor on a person’s behalf and are reassigned; or where the activities are taken in-house. 

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Case Summary Tag: 

Metroline Travel Ltd v Stoute [2015] EAT

Bus driver with Type 2 diabetes was not disabled.

The EAT in Metroline v Stoute has ruled that a bus driver who suffered from Type 2 diabetes and who was dismissed for gross misconduct, was not disabled. Mr Stoute claimed unfair dismissal, discrimination arising from a disability and failure to make reasonable adjustments. This appeal was on the sole issue of whether Mr Stoute was disabled for the purposes of the Equality Act 2010. 

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CRO Ports London Ltd v Wiltshire [2015] EAT

Admissions during disciplinary process.

In CRO Ports London Ltd v Wiltshire, the EAT held that a tribunal was wrong to find that a summary dismissal for gross misconduct was unfair because the employer should have undertaken further investigations even though during a disciplinary interview Mr Wiltshire admitted that a practice he carried out was a dangerous act. The ET was not entitled to have regard to its own findings as to what had happened on the evidence it had heard.  It was obliged only to test the employer’s decisions, including the decision to dismiss itself, against the range of reasonable responses of the reasonable employer, not by applying its own view as to the respective culpability of the parties on the facts that it, the ET, had found.

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Case Summary Tag: 

Timothy James Consulting Ltd v Wilton [2015] EAT

Constructive dismissal is not an act of harassment in itself.

The background to Timothy James Consulting Ltd v Wilton was that an employee who had been in a relationship with one of the company owners (who then entered into a relationship with another employee) resigned after the working relationship became untenable and claimed constructive unfair dismissal, harassment and victimisation. 

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Chawla v Hewlett Packard Ltd [2015] EAT

10% uplift does not apply to injury to feelings awards.

In Chawla v Hewlett Packard, the employer had a provision criterion or practice of shutting down access to email and internet for employees on long-term sickness absence.  The ET held that this substantially disadvantaged Mr Chawla who was disabled in that he was not informed about important developments to his terms and conditions of employment and his benefits.  

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Abi Babitu Kololo and Commissioner of Police for the Metropolis [2015] EWHC

Subject access request was proportionate.

The High Court has ordered that a data subject access request made by Mr Kololo who was facing the death sentence in Kenya to, among others, the Metropolitan Police Service (MPS) should be granted.

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R (Catt and T) v Commissioner of Police for the Metropolis [2015] UKSC

No breach of Article 8 where individuals’ personal details were retained on police database.

The Supreme Court in R (Catt and T) v Commissioner of Police for the Metropolis has considered an appeal concerning the systematic collection and retention by police authorities of electronic data about individuals. The issue was whether the practice was lawful or contrary to article 8 of the European Convention on Human Rights (respect for private and family life, home and correspondence). Mr Catt objected to the retention of police data concerning his involvement in political demonstrations going back as far as 2005.

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Case Summary Tag: 

Donelien v Liberata UK Ltd [2014] EAT

Constructive knowledge of a disability.

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