Emplaw Monthly - January 2016

NEW THIS MONTH AT EMPLAW.CO.UK

Employment Law 2016 - Checklist is a comprehensive checklist of the main legislative developments and judicial decisions expected in 2016.

For speedy reference, Employment In 2016 –Six Things to Watch is an article summarising 6 key developments to look out for in 2016 and what employers should do in anticipation.

In the same vein, in our Contributor News section we link to the article Pensions 2016 – Six Things to Watch which was published by Ian Curry from Wragge Lawrence Graham who is one of the authors of the Pension cards at emplaw.co.uk

Our article Government Response to Consultation on tackling exploitation in the labour market summarises the aims and outcome of the consultation.

FOCUS ON EMPLAW ONLINE CONTENT

Bearing in mind the widely reported ECHR decision in Bārbulescu v Romania  that an employee's emails were not protected under Article 8, please see our incisive and detailed guides on Data Protection written by barrister Catherine Richmond from Cloisters and which include a specifc card on Monitoring Workers.

EMPLOYMENT LAW NEWS

Women and Equalities Committee report on trans people

A report published by the House of Commons Women & Equalities Committee on 14 January states that there is still a long way to go to ensure equality for transgender people. The committee’s first inquiry makes over 30 recommendations in a wide range of policy areas. It calls on the Government to take action to ensure full equality for trans people, emphasising the need to update existing legislation; provide better services, especially in the NHS; and improve confidence in the criminal justice system.

http://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2015/transgender-inquiry-report-published-15-16/

Government response to consultation on tackling exploitation

The government has published its response to consultation on tackling exploitation in the labour market. Going forward it will:

  • Create the role of Director of Labour Market Enforcement to set the strategic priorities for labour market enforcement bodies
  • Allow data sharing between the Director, the Intelligence Hub, labour market enforcement bodies and other bodies with intelligence
  • Create a new labour market undertaking and enforcement order regime to allow the government to deal with repeat labour market offenders and rogue businesses
  • Reform the Gangmasters Licensing Authority to become the Gangmasters and Labour Abuse Authority, with stronger powers to deal with labour exploitation across the economy.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/491260/BIS-16-11-government-response-to-tackling-exploitation-in-the-labour-market.pdf

Impact Assessments – Trade Union Bill

The second reading of the Trade Union Bill took place on 11th January 2016 and the government has published impact assessments on key aspects of the controversial Bill including on union subscription wage deductions; reporting trade union facility time in the public sector and effect on business, public sector and individuals of measures in the Bill. It has also published a news story on strike thresholds for important public services and a consultation outcome on ballot thresholds in important public services.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/493636/BIS-16-70-trade-union-bill-impact-assessment.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/494133/BIS-16-83-trade-union-bill-impact-assessment-prohibition-on-deduction-of-union-subscriptions-from-wages-in-public-sector.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil...

https://www.gov.uk/government/news/new-strike-thresholds-for-important-public-services

https://www.gov.uk/government/consultations/ballot-thresholds-in-important-public-services

Financial Reporting Council: annual report

On 14 January 2016 the Financial Reporting Council (FRC) published its annual report into corporate governance and stewardship. The FRC stated that it does not intend to make substantial revisions to the UK Corporate Governance Code for the next three years and the minor revisions currently proposed are as a result of implementing the EU Audit Regulation and Directive. Future work on Corporate Governance will be taken through market-led and collaborative initiatives and in 2016 the FRC will focus on corporate culture. The aim is to carry out research which will be helpful to boards.

The FRC also notes that the UK Stewardship Code has helped to raise the profile of stewardship and led to improvements in engagement between investors and companies. It intends to scrutinize the Code signatory statements to distinguish those whose reporting is of high quality and those where improvement is required.

https://www.frc.org.uk/Our-Work/Publications/Corporate-Governance/Developments-in-Corporate-Governance-and-Stewa-(1).pdf

EDPS Guidelines on personal data and electronic communications/ mobile devices in EU institutions

On 17 December 2015, the European Data Protection Supervisor published two new sets of guidelines on ‘personal data and electronic communications’ and ‘personal data in mobile devices’. These guidelines are aimed at EU institutions and bodies but, as the executive summaries make clear, they can be adapted for use for all organisations with an interest in data protection, electronic communications and mobile devices as Data Protection Regulation 45/2001 is similar to the Data Protection Directive with which EU member states must comply.

https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/PressNews/Press/2016/EDPS-2016-01-EDPS_eComms_EN.pdf

The Small Business, Enterprise and Employment Act 2015 (Commencement No. 3) Regulations 2015

The Small Business, Enterprise and Employment Act 2015 (Commencement No. 3) Regulations 2015 were made on 9 December 2015, bringing into force specified sections of the Small Business, Enterprise and Employment Act 2015. Regulation 2 inserts a power in the Employment Rights Act 1996 giving the Secretary of State power to require prescribed persons to report on disclosures of information. It also commences a power in the Act to make regulations concerning public sector exit payments.

http://www.legislation.gov.uk/uksi/2015/2029/made

Restrictions placed on public-sector exit payments

Meanwhile, the Public Sector Exit Payment Regulations 2016  are planned to come into force from April 2016 which will impose a cap of £95,000 on the total aggregate value of exit payments made to public sector workers.

And consultation on the draft Repayment of Public Sector Exit Payments Regulations has now closed. These are also intended to be in force from April 2016 and allow the recovery of exit payments made to public sector employees who return to the public sector. The Regulations now provide that the minimum earnings threshold for individuals subject to the recovery provisions should be £80,000 (not £100,000 as originally proposed) and the policy is to apply to qualifying returns to any part of the public sector (not just returns to the same part of the public sector as originally proposed).

Financial penalties on employers who do not pay tribunal awards

In response to a parliamentary question, Nick Boles MP on 12 January 2016 stated that the financial penalty provision in section 150 Small Business, Enterprise and Employment Act 2015 will commence from April 2016.

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-01-04/20860/

Civil courts structure review (Briggs LJ) interim report published

On 12 January 2016, Briggs LJ's Civil Courts structure review interim report was published. It is clear that the ET and the EAT which are not part of are not part of the main Tribunal Structure or the civil court structure are within the remit for reform. The report list the following current options:.

(a)To leave the ET (and the EAT) where they are, ‘uncomfortably stranded between the civil courts and the main Tribunal Structure’.

(b) To bring both tribunals broadly under the wing of the structure of the civil courts.

(c) To make both tribunals part of the Tribunal Structure, as First Tier and Upper Tribunals respectively.

The report does not consider the proposals in details (but see Chapters 3 and 11) but comments that option A is the least favourable option

It has been provisionally decided that Briggs LJ should complete the review by the end of July 2016 and he therefore invites written responses to the interim report by not later than the end of February 2016. 

CASES: 

Patural v DB Services (UK) Ltd [2015] EWHC 3659

Award of smaller bonus was not in breach of implied or express terms

In Patural v DB Services Ltd the High Court allowed an application for summary judgment against Mr Patural’s claim that the award of a low bonus was in breach of express and implied terms of his contract of employment. The court held that there was no real prospect of Mr Patural’s claim succeeding.

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Case Summary Tag: 

Bārbulescu v Romania ECHR 61496/08

Employee’s emails were not protected under Article 8 ECHR

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Kelly v Covance Laboratories Ltd UKEAT/0186/ 15

Instruction not to speak Russian at work

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Donkor v Royal Bank of Scotland UKEAT/0162/15

Direct discrimination when employee over 50 refused voluntary redundancy

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Cherry v Police and Crime Commissioner for South Wales (PO-7096)

Employer had duty of care to warn employee of tax implications of re-employment on retirement benefits

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The Queen on the application of Fleet Maritime Services (Bermuda) Ltd v the Pensions Regulator

Guidance on ‘ordinarily working in Great Britain’ for purposes of Pensions Act 2008

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Camacho v Securitas Seguridad España SA C-407/14

ECJ rules that punitive damages are allowed but not required under Equal Treatment Directive

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