Emplaw Monthly - End of November 2015

New This Month

Emplaw Online provides L& D page for solicitor subscribers

Subscribers now have a personal Leaning and Development page where, each month, they can create an L &D Record and Evaluation sheet  as part of their training record. The article also recaps the changes to the cpd regime.

The article also recaps how cpd is changing and explains how subscription to Emplaw Online provides a very efficient means to satisfy specialist learning goals.

Click here to create your Learning & Development record for this month's edition and click the new L & D link (near the top on every page, next to 'My Bookmarks') to see more information.

The 2015 Autumn Statement

A summary of the key points for employment specialists,

Working Time and Contractual Holiday

An excellent, straight forward summary of holiday entitlements including the cases involving long term sickness and family leave and also how holiday pay is calculated

Focus on Emplaw Online content

Coming soon.. We are delighted to report that new and additional content on Restrictive Covenants and their enforcement has been written by Jacques Algazy QC, Tom Coghlin, and Nathaniel Caiden from Cloisters chambers and this will be posted during December.

Meanwhile further to our article on holiday pay, please see our incisive and detailed guides on Working Time, Holidays and Time off Work written by barrister Heather Platt from Pump Court Chambers and the emplaw online team, 

Employment Law News

Government response to consultation on intimidation of non-striking workers

The government has published its response to the consultation on tackling intimidation of non-striking workers. The government states that it will improve and update the code of practice on picketing to set out the rights and responsibilities of parties involved or affected by industrial disputes. This includes the use of social media and protests. The Trade Union Bill requires unions to issue a letter of authorisation to the picket supervisor. The government will table an amendment to the bill to clarify who is entitled to ask for details about this letter. This amendment will clarify that the union’s letter approves the picketing, not the picket supervisor.https://www.gov.uk/government/consultations/tackling-intimidation-of-non-striking-workers

Separately, The Trade Union Bill has now passed to the House of Lords where it had its first reading on 11 November.

NB Emplaw Online sumarises and tracks Bills in our reference Law Cards on Statutes and Regulations

Government response to consultation on public sector exit payments

The government has also published its response to the consultation on the proposal to cap public sector exit payments. Despite a number of respondents opposing the proposals, the government has announced its intention to proceed with the intention to legislate to introduce a cap on exit payments. It will take forward the proposals by taking powers in primary legislation as part of the enterprise Bill and detail will be implemented through secondary legislation. The draft Public Sector Exit Payment Regulations 2016 have now been published, which will impose a cap of £95,000 on the total aggregate value of exit payments made to public sector workers.

Acas research indicates rise in workplace bullying

A new Acas study has revealed that workplace bullying is on the increase. The paper sets out ways to identify and tackle bullying. The Acas helpline has received around 20,000 calls related to bullying and harassment and estimates the annual economic impact of bullying related absences, staff turnover and lost productivity to be almost £18 billion.

http://www.acas.org.uk/index.aspx?articleid=5543

Acas guides on Investigations

Acas has published an information page on carrying out workplace investigations with links to a guide on conducting workplace investigations and  templates for an investigation plan, an investigation report, letter informing an employee that they are subject to an investigation and a letter inviting an employee to an investigation meeting.

Government Guide: Transgender Staff

The Government Equalities Office has published a new guide for employers on Recruitment and Retention of Transgender Staff. intended as a practical guide for the managers and employees.

98% of junior doctors in favour of strike action

Junior doctors have overwhelmingly voted in favour of strike action in response to the government’s proposals to impose a new contract on them.

EC Consultation on work/life balance

The European Commission has launched a public consultation on ways to address the challenges of the work/life balance faced by working parents. In particular, the consultation notes that despite women being increasingly well-qualified and outperforming men in educational attainment they continue to be under-represented in the labour market.

http://ec.europa.eu/justice/newsroom/gender-equality/opinion/1511_roadmap_reconciliation_en.htm

Gender pay inequality

The Prime Minister and Women and Equalities Minister Nicky Morgan have announced new measures to eradicate gender inequality in the workplace and remove barriers to women’s success. The government is pledging to:

  • Force larger employers to publish information about their bonuses for men and women as part of their gender pay gap reporting
  • Extend government plans for gender pay gap reporting beyond private and voluntary sector employers to include the public sector
  • Work with business to eliminate all-male boards in the FTSE 350.

A few days later, Lord Davies published his final report on improving the gender balance on British boards. His report notes that women’s representation on the FTSE 100 has more than doubled to 26% in less than five years. It notes that the setting of realistic, achievable and stretching targets for business has been a key driver of progress. Further targets will be

  • increasing the voluntary target for women’s representation on Boards of FTSE 350 companies, to a minimum of 33% over five years;
  • all stakeholders to work together to ensure increasing numbers of women are appointed to the roles of Chair, Senior Independent Director and into Executive Director positions on boards of FTSE 350 companies;
  • all FTSE listed companies to assess the gender balance on boards and to take prompt action to address any shortfall.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/471951/BIS-15-585-women-on-boards-davies-review-5-year-summary-october-2015.pdf

Women in Financial Services Survey

Jayne-Anne Ghadia, CEO of Virgin Money, has been asked to lead a Government Review into the representation of women in senior managerial roles in the financial services industry. Her research has found that organisations that address the issue of diversity head on tend to be the ones making most progress.

Her initial recommendations are that organisations should be required to measure, report and publish their progress on the advancement of women in senior positions in Financial Services; a senior member of the Executive team should be accountable for setting the agenda, setting targets, measuring them and reporting on them publicly. Finally, she proposes that the bonuses of senior managers and executives are explicitly tied into success in this area.

http://uk.virginmoney.com/virgin/women-in-finance/

Separately, the UK Commission for Employment and Skills has published research that shows that women are paid less than men in 90% of sectors, with women working in the financial and insurance sectors are amongst the worst affected.

https://www.gov.uk/government/news/research-finds-women-paid-less-than-men-in-90-of-sectors

Updated DBS Code of Practice

The DBS has published an updated code of practice for registered persons and other recipients of disclosure information.

https://www.gov.uk/government/publications/dbs-code-of-practice

Evidence on impact of tribunal fees

The Justice Committee has heard evidence relating to the impact of the introduction of tribunal fees. Most respondents expressed concerns about access to justice.

http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2015/courts-and-tribunals-fees-and-charges/publications/

Separately, HMCTS has made some changes to the fee remission system to simplify it. From 28 October 2015, the fees remission process is called ‘Help with Fees’ and a new ‘Help with Fees’ form, EX160, is available online.

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160a-eng-2015.10.pdf

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160-eng-2015.10.pdf

http://www.fbu.org.uk/wp-content/uploads/2014/04/HM-Court-and-Tribunal-fees.pdf

 

 

CASES: 

Chez Razpredelenie Bulgaria C-83/14

Claimant without the protected characteristic can bring indirect discrimination claim

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Hyde Housing Association Ltd v Layton UKEAT/0124/15

No TUPE transfer where the transfer is to several employers, including the original employer who remains liable for employee’s employment

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Case Summary Tag: 

MBNA Limited v Jones UKEAT/0120/15

Inconsistency of treatment did not make dismissal unfair

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Schwarzenbach and another v Jones [2015] UKEAT 0100_15_0409

ET wrong to consider that presumption of continuity applied where there was change of employer

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Greenfield v the Care Bureau Ltd C-219/14

Accrued statutory annual leave should not be recalculated after worker changes work pattern but a new calculation required for the period of increased hours

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Shannon v Rampersad t/a Clifton House Residential Home [2015] UKEAT 0050_15_2409

On-call night worker only entitled to NMW for hours of night shift when he was actually working and no entitlement to accrued unused holiday

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Pujante Rivera Gestora Clubs Dir SL and another C-422/14

‘Redundancy’ under the Collective Redundancies Directive 98/59/EC can include resignations

In Pujante Rivera Gestora Clubs Dir SL and another the ECJ considered whether the Collective Redundancies Directive 98/59/EC, which requires employers who contemplate collective redundancies to consult with workers’ representatives, would include the termination of employment of an employee in response to the employer’s pay cut for economic reasons. In this case, the Spanish employer dismissed 10 employees for economic reasons.

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Case Summary Tag: 

Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67

Contractual clauses were not penalty clauses - important SC guidance on how penalty clauses should be applied

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Science Warehouse Ltd v Mills UKEAT/0224/15

No need for early conciliation certificate for additional claim

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