Emplaw Monthly - End of February 2016

New this month at Emplaw.co.uk

Mind The Gap: A Guide To Gender Pay Gap Reporting For Employers
Emplaw Online contributors Gowling WLG have published an excellent guide which unpacks the 'who, when, where and what' of the draft regulations including what employers should do now.

Working Time and Contractual Holiday - the cases and the law in a nutshell
Updated following this months’ EAT decision in Lock v British Gas (reported in this month’s cases), this article summarises holiday entitlements such as carry-over of holiday and the calculation of holiday pay, and looks at the issues that arise as a consequence of sickness absence and taking family leave.

Early conciliation: the tide is turning towards a liberal interpretation
An incisive blog posted by Emplaw Online contributor, Nathaniel Caiden from Cloisters. He considers the recent case of Mist v Derby Community Health Services NHS Trust UKEAT/0170/15 (reported in this month’s cases) and analyses the approach that ETs are likely to take going forward.
 

Focus On Emplaw Online Content

Legislation Update 

Finding it tricky to keep track of which new provisions are in force and which are not and the progress of upcoming legislation? Our concise and up to date Reference Law Cards in the Law Guide under Statutes and Regulations cover  the Immigration Bill 2015-16, Enterprise Bill 2015-16, Trade Union Bill 2015-2016, Modern Slavery Act 2015, Deregulation Act 2015, The Small Business, Enterprise and Employment Act 2015 (SBEEA)

Employment Law News

National Minimum Wage (Amendment) Regulations 2016

The National Minimum Wage (Amendment) Regulations 2016 will come into force on 1 April 2016 and will add the National Living Wage at the rate of £7.20 per hour for workers aged 25 and over. The financial penalty on an employer who underpays a worker is increased from 100% to 200% for each underpaid worker.

http://www.legislation.gov.uk/uksi/2016/68/introduction/made

BIS responds to Posted Workers Enforcement Directive Consultation

The Department for Business Innovation and Skills has published its response to consultation on the Posted Workers Enforcement Directive.

The Enforcement Directive establishes a framework for a better and more uniform application and enforcement of the rights that posted workers are entitled to under the original Posted Workers Directive. In particular, the Enforcement Directive introduces the concept of subcontracting liability so that where a posted worker in the construction sector is not paid the minimum rates of pay by their direct employer (the subcontractor) the contractor one up the supply chain, can be held responsible either in addition to or in place of the employer. Member states are able to introduce a legal defence of due diligence to contractors.

The government will now lay regulations before Parliament to implement the Enforcement Directive by 18 June 2016.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/495964/BIS-16-26-government-response-posted-workers.pdf

Name blind recruitment across public sector

The Minister for the Cabinet Office has outlined plans to end inequality across the public sector. Measures will include rolling out name blind recruitment across the public sector to make sure that jobs awarded on merit alone; publishing the pay ratio of the salaries between the median and highest paid employees; creating over 200,000 apprenticeships in the public sector by 2020. The government will also urge Britain’s major employers to adopt the same approach.

https://www.gov.uk/government/news/plan-to-end-inequality-in-the-public-sector

Independent Review into increasing representation of women on FTSE 350 companies

Sir Philip Hampton has been appointed to lead an independent review on increasing representation of women in the executive level of FTSE 350 companies. The new review will continue on from Lord Davies’s Women on Boards Review, a voluntary led initiative, which saw female representation on boards in the FTSE 100 rise from 12.5% to beyond the target of 25%. The next phase will focus on building the pipeline for female executives and emerging non-executive directors, to increase the work already done on increasing board representation.

https://www.gov.uk/government/news/new-chair-and-deputy-chair-of-women-on-boards-review-will-champion-female-executives

Developing black and minority ethnic talent

The Business Secretary has asked Baroness McGregor-Smith to lead a review looking at the issues faced by businesses in developing black and minority ethnic talent from when they start work through to executive level. The review will also

consider the obstacles faced and the impacts these have on the individuals and the businesses themselves.

https://www.gov.uk/government/news/business-secretary-steps-up-fight-to-end-discrimination

Government response to consultation on amending ET postponement procedures

The government proposes to amend the ET Rules of Procedure in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to:

  • Limit the number of postponements that can be granted to a party, in a single case, other than in exceptional circumstances
  • Introduce a deadline after which applications for the postponement of a hearing would only be allowed in exceptional circumstances
  • Place an obligation on tribunals to consider granting costs orders where late notice postponements are granted.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/499533/bis-16-21-employment-tribunal-government-response.pdf

Consultation on reforms to public sector exit payments

The government is consulting on options to reform public sector exit payment terms to ensure greater consistency, fairness and sustainability in the provision of public sector compensation. Proposals include setting the maximum tariff for calculating exit payments at three weeks’ pay per year of service. Consultation closes on 3 May 2016.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/498106/FINAL_Consultation_on_public_sector_exit_payment_reforms_4_February_pdf_....pdf

Trailblazing Transparency: closing the gender pay gap/ draft response and consultation on draft regulations

The Government Equalities Office together with Deloitte has published a report that sets out what closing the gender pay gap really means.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/498743/Trailblazing_Transparency_-_Mending_the_Gap_report_Feb_2016.pdf

On 12 February 2016 the government issued a consultation on gender pay reporting draft regulations. Consultation ends 11 March 2016. Regulations are scheduled to come into force from 1 October 2016, with the first reports needing to be published by the end of April 2018 based on pay data as at 30 April 2017. Employers with 250 or more relevant employees will fall into scope. They will be required to publish their overall mean and median gender pay gaps.as well as the difference between the mean bonus payments paid to men and women.

This is a follow up consultation to Closing the Gender Pay Gap  which sought views on how best to increase transparency around gender pay differences. The government response to that is found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/500087/Government_response_-_Closing_the_Gender_Pay_Gap.pdf

See also an excellent guide  to the new regulations drafted by Emplaw Online authors Gowling WLG  which unpacks the 'who, when, where and what' of the draft regulations and their potential impact on employers including what employers should be doing now,

 

EU-US political agreement on data transfer agreement

The European Commission and the United States have agreed on a new framework for transatlantic data flows: the EU-US Privacy Shield. The new arrangement will place stronger obligations on companies in the US to protect the personal data of Europeans and stronger monitoring and enforcement by the US Department of Commerce and Federal Trade Commission, including through increased cooperation with European Data Protection Authorities.

http://europa.eu/rapid/press-release_IP-16-216_en.htm?locale=en

https://iconewsblog.wordpress.com/2016/02/11/safe-harbor-calmer-waters-on-the-horizon/

Agricultural Wages (Wales) Order 2016

The Agricultural Wages (Wales) Order 2016 comes into force on 26 February 2016 which introduces revised pay rates for all grades and categories of agricultural workers in Wales.

http://gov.wales/about/cabinet/cabinetstatements/2016/agriwagesorder/?lang=en

Gay marriage cake appeal adjourned

The N.I. Attorney-General has made a last minute intervention in the appeal of the Ashers in respect of its refusal to bake a gay marriage cake on religious grounds. The A-G has made a request to make representation in the case about any potential conflict between between the region’s equality legislation and European human rights law.

http://www.telegraph.co.uk/news/uknews/law-and-order/12138075/Gay-marriage-cake-appeal-by-Christian-bakery-is-halted.html

FCA statement on legal function under Senior Managers Regime

The FCA has made a statement setting out its plans to consult over whether an individual in charge of a firm’s legal function requires FCA approval under the Senior Managers Regime.

http://www.fca.org.uk/news/supervisory-intentions-overall-responsibility-legal-function-under-senior-managers-regime

FCA policy statement on accountability regime for wholesale traders and interim rules on regulatory references

The FCA has published a policy statement confirming the extension of the certification regime to client dealing and algorithmic trading functions. Relevant firms have until 7 September to identify such staff.

It also notes that some responses to consultation on regulatory references raised important issues which will require further consideration. It proposes an interim measure of retaining the existing referencing rules for Relevant Authorised Persons and insurers from 7 March 2016 pending final rules in the summer.

The interim position maintains the pre-commencement position for firms in relation to candidates seeking pre-approved roles.

The PRA has also issued a first tranche of rules which will apply from 7 March 2016. The new interim rules (until final implementation at a later date) are broadly a continuation of existing requirements under the Approved Persons Regime).

http://www.fca.org.uk/static/fca/article-type/policy%20statement/ps16-03.pdf

http://www.bankofengland.co.uk/pra/Documents/publications/ps/2016/ps516.pdf

CASES: 

Mustafa and another v (1) Trek Highways Services Ltd (2) Amey Services Ltd (3) Ringway Jacobs Ltd UKEAT/0064/15

Temporary cessation in activities does not prevent TUPE transfer

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British Gas Trading v Lock UKEAT/0189/15

EAT upholds ET decision that commission is included in calculation of holiday pay

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Stimpson v Citibank N.A. ET 3200437/15

Unfair dismissal of trader who shared client information on Bloomberg chats

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Rackham v NHS Professionals Ltd UKEAT/0110/15

Equal Treatment Bench Book to determine reasonable adjustments

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Bone v North Essex Partnership NHS Foundation Trust [2016] EWCA Civ 45

NHS Trust subjected union member to a detriment

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Craig v Bob Lindfield & Son Ltd UKEAT/0220/15

Contractual right on length of  lay off not subject to test of reasonableness

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Mist v Derby Community Health Services NHS Trust UKEAT/0170/15 Drake International Systems Ltd and others v Blue Arrow Ltd UKEAT/0282/15

No need for further early conciliation when new respondent added or to substitute new respondent

In Mist v Derby Community Health Services NHS Trust the EAT confirmed its decision in Science Warehouse Ltd v Mills that it is not necessary for a claimant to go through the early conciliation (EC) process again when applying to amend a claim for the purposes of adding a new respondent.

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R (on the application of P) v Secretary of State for Justice [2016] EWHC 89

Judicial Review challenge to criminal records disclosure scheme

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