Emplaw Monthly - End of October 2015

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CPD for Solicitors- Use Emplaw Monthly

For solicitors thinking of changing to the new continuing competence regime, annual subscribers to Emplaw Online can use Emplaw Monthly to help meet the new requirements. This Article summarises what is changing and how, and explains how a subscription to Emplaw Online provides a very efficient means to satisfy specialist learning goals.

Transferring Personal Data to the USA

Following this month’s decision by the  Court of Justice of the European Union  in Schrems v Data Protection Commissioner Case C‑362/14 CJEU, which struck down the Safe Harbour framework as invalid, this article takes a look at the potential alternatives for lawful transfer.

We also report the case in Case Summaries below.

Focus on Emplaw Content

Emplaw offers a series of detailed but straightforward guides on the Equality Act 2010 and Discrimination. We are pleased to say that they have been reviewed and will now be kept up to date by Tim Wilkinson, Barrister from leading North East Chambers Parklane Plowden.

Employment Law News

Immigration Bill factsheets

The Immigration Bill will introduce new sanctions on illegal immigration. The government has published ‘overarching’ documents relating to the Bill, available at https://www.gov.uk/government/publications/immigration-bill-2015-overarching-documents.

Fact sheets on labour market enforcement and illegal working are available at: https://www.gov.uk/government/publications/immigration-bill-part-1-labour-market-and-illegal-working.

The government intends that public sector workers who have customer facing roles speak fluent English. A factsheet is available at: https://www.gov.uk/government/publications/immigration-bill-part-7-language-requirements-for-public-sector-workers.

For a brief summary of the Bill’s provisions as they relate to employment see the emplaw online article

Consultation on tackling exploitation in the labour market

In parallel with the Bill, the government has also launched a consultation seeking views on a range of proposals to improve the effectiveness of the enforcement of employment rights to protect workers from exploitation. These include:

  • Measures to support the statutory Director of Labour Market Enforcement (the role is set out in the Immigration Bill).
  • Creating a new offence of an aggravated breach of labour market legislation
  • Increasing intelligence and data sharing between the existing enforcement bodies
  • Widening the remit, increasing the powers and changing the name of the Gangmasters Licensing Authority to enable it to deal with serious exploitation.

The consultation observes that there has been a shift in the nature of non-compliance within the labour market, with a move towards more organised criminal activity rather than individual abuses of employment legislation.  The consultation closes on 10th November.

Separately, UK Visas and Immigration have published a quarterly report showing the number of fines given to employers for illegal working. More than £9m in employer fines were issued between 1 January and 31 March 2015.

Trade Union Bill

Len McCluskey, the General Secretary of Unite, has said that Unite will abandon its opposition to the 50% minimum turnout in threshold in strike ballots if ministers allow modern and secure online voting on public service strikes.

Scotland requests exemption

Meanwhile, the Cabinet Secretary for Fair Work Skills and Training has written to the UK Minister for Skills, Nick Boles, asking for Scotland to be excluded from the Trade Union Bill. She argues that the proposals have the potential to undermine the effective engagement of trade unions across Scottish workplaces and in particular across the Scottish public sector. It is their view that the Bill will affect employees’ right to strike, change the relationship between unions and organisations negatively, and lead to greater confusion amongst employees.

http://news.scotland.gov.uk/News/Trade-Union-Bill-exemption-call-1e5e.aspx

Modern Slavery Act 2015 (Transparency in Supply Chains) Regulations 2015

Part 6. section 54 of the  Modern Slavery Act came into force on 29th October 2015 by virtue of the The Modern Slavery Act 2015 (Commencement No.3, Saving and Transitional Provisions) Regulations 2015. This provision requires all commercial organisations that carry out business in the UK and are above a certain turnover threshold to disclose what steps, if any, they have taken to ensure that their own business and supply chains are slavery-free. The Regulations include a transitional position that section 54 does not have effect in respect of a financial year ending before 31st March 2016.

The government also introduced with effect from 29th October 2015 the Modern Slavery Act 2015 (Transparency in Supply Chains) Regulations 2015. The Regulations define the threshold at £36 million and specify that the total turnover of a commercial organisation should be calculated for the purposes of the provision as the turnover of that organisation and the turnover of any of its subsidiary undertakings. This means that in calculating their total turnover, parent companies will have to include the turnover of all their subsidiaries when considering whether this provision applies.

The Home Office has produced statutory guidance Transparency in supply chains: a practical guide which provides guidance on who is required to publish a statement, how to write a slavery and human trafficking statement and how to approve and publish the statement.

Consultation on regulatory framework for recruitment

The government has published a consultation seeking views on proposed changes to the Conduct of Employment Agencies and Employment Businesses Regulations. The government has decided not to replace the current legislation but instead proposes to remove some business to business regulation and simplify the legislation where possible.

The consultation also seeks views on a proposal to ban employment agencies and businesses from recruiting solely from other European Economic Area (EEA) countries without advertising in GB (those who want to recruit from outside of the EEA already need to comply with the Resident Labour Market Test).

Draft regulations, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016 are included with the consultation document. The consultation closes on 23rd November 2015.

Discussion paper on tax treatment

In response to the Office of Tax Simplification’s January 2014 report on the tax treatment of employee benefits and expenses Review of employee benefits and expenses: second report, the government announced in Budget 2014 that it intended to review the rules underlying the taxation of travel and subsistence expenses. On 31 July 2014 the government launched the first stage of that review. On 23 September HMRC published a discussion paper: https://www.gov.uk/government/consultations/travel-and-subsistence-framework-discussion-paper. The paper sets out the principles that should be reflected in the new rules and proposes a framework for modernisation. The consultation closes on 16th December 2015.

Extension of shared parental leave and pay to working grandparents

On 5 October 2015, George Osborne announced that working grandparents will be able to share parental leave. The government will bring forward legislation with the aim of implementing the policy by 2018. Consultation will take place in the first half of 2016.

Zero hours contracts guidance

The Department for Business, Innovation and Skills has published guidance on zero hours contracts: what they are, how they affect employment rights, exclusivity clauses, appropriate use and best practice.

Separately, the government has published the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 which make provision in relation to the right for eligible individuals on zero hours contracts not to be unfairly dismissed or subjected to a detriment because they have breached a provision of a zero hours contract which prohibits the individual from doing work under another contract or arrangement. Eligible employees will be able to bring tribunal proceedings and claim compensation.

Reservist employer toolkit

The Ministry of Justice has published guidance on all aspects of employing reservists. This includes details of rights and responsibilities, and financial assistance for employers and reservists; guidance for line managers on how to manage reservists; managing requests for time off for training; guidance and actions for when a reservist is mobilised. It also includes a reservist HR Policy template.

New whistleblowing rules announced by FCA and PRA

The FCA and the PRA have issued policy statements about whistleblowing in relevant firms. Both regulatory bodies are introducing a package of new whistleblowing rules which will largely come into force on 7 September 2016. The rules will apply to deposit takers with over £250m in assets although the rules will have the status of non-binding guidance for other firms. In brief, the rules will require relevant firms to appoint a ‘whistleblowers’ champion’ who will have responsibility for overseeing the effectiveness of internal whistleblowing policies; establish an independent whistleblowing channel for concerns; require wording in employment and settlement agreements not to deter staff from raising concerns. Firms will also be required to notify the relevant regulator where a whistleblowing complaint is upheld. The appointment of a whistleblowing champion must be effected by 7 March 2016; compliance with the other rules is required by 7 September 2016.

Consultation on regulatory references

The FCA and the PRA have also issued a joint consultation paper on regulatory references. The consultation closes on 7 December 2015. The consultation forms part of a wider package of reforms aimed at improving accountability in regulated authorised persons (RAPs) and insurers. The initial consultation on the introduction of the senior managers’ and certification regimes explained that firms seeking to appoint someone to either a senior manager or a certification function must request a reference from all previous employers covering the past five years’ employment. A Fair and Effective Markets Review earlier this year recommended the raising of standards in fixed income, currency and commodity markets, with the potential to extend the SMR and CR to these markets. The FCA and PRA accepted the recommendation to consult on a mandatory form for regulatory references, with a view to a template being ready by March 2016.

Ofsted Survey into Apprenticeships

Following HM Chief Inspector’s annual report 2013/14, which raised concerns about the apprenticeships on offer, he commissioned a survey to look into the quality of apprenticeships under the current frameworks so that the findings can be used to inform government reforms. Inspectors found that in a third of the 45 providers visited, apprenticeships did not provide sufficient, high-quality training that stretched the apprentices and improved their capabilities. Inspectors observed, for example, apprentices in the food production, retail and care sectors who were simply completing their apprenticeship by having existing low-level skills, such as making coffee, serving sandwiches or cleaning floors, accredited.

Employers plan to direct employees to Fit for Work (FFW) service

A survey by Jelf Employee Benefits shows that 46% of employers plan to communicate FFW to their staff within the next 12 months. Almost seven in ten of the employers responding planned to refer some or all of their long term absences to FFW.

CASES: 

O’Brien v Ministry of Justice and Walker v Innospec & others [2015] EWCA Civ 1000

Retroactivity of EU Legislation – no retroactive entitlements to pension

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Inex Home Improvements Ltd v Hodgkins and others UKEAT/0329/14

TUPE- Organised grouping can include employee who is temporarily laid off

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Case Summary Tag: 

Maximillian Schrems v Data Protection Commissioner, Case C-362/14

EU-US safe harbour framework for transfer of personal data is invalid

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EAD Solicitors LLP and others v Abrams UKEAT/0054/15

Limited company can bring direct discrimination claim

The question in EAD Solicitors LLP and others v Abrams was whether a corporate body which is a member of an LLP can claim to have suffered detriment because of the protected characteristic of an individual who happened to be its principal shareholder and member.

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Underwood v Wincanton plc UKEAT/0163/15

Whistleblowing legislation protects employee who raises contractual issue affecting a group of employees

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Case Summary Tag: 

USA v Nolan [2015] UKSC 63

Collective redundancy consultation applies to closure of US military base

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