Emplaw Monthly - April 2016

New this month at Emplaw.co.uk

Brexit: How would it affect UK employers and employees?

https://www.emplaw.co.uk/article/brexit-how-would-it-affect-uk-employers-and-employees

A pithy article which summarises how Brexit would affect UK employment law, highlighting some potential specific changes and explaining that the reality depends on the politics of future UK governments and the subject matter of the cases that come before the courts.

Sick Pay – Six Things to Remember

https://www.emplaw.co.uk/article/sick-pay-%E2%80%93-six-things-remember

This article answers some of the key questions including how to use fit notes, the impact of PHI schemes and the consequences of sickness during paid and unpaid holiday. It complements the Emplaw Sickness, illness and accidents: key card and our detailed guide on Pay during Sickness

Focus On Emplaw Online Content

In the month when the government has announced that it intends to review non-compete clauses and we report the case of Morris-Garner and another v One Step (Support) Ltd where the Court of Appeal reviewed damages for breach of confidentiality and non-compete restraints, subcribers may be interested in our incisive guides written by Jacques Algazy QC, Tom Coghlin, and Nathaniel Caiden from Cloisters chambers. Of particular interest may be Restrictive Covenants : Is The Covenant Enforceable? Restrictive Covenants - Remedies for breach and enforcing a restrictive covenant and Contracts of Employment/Garden leave

Employment Law News

Data Protection Regulation

The EU Parliament has voted in favour of a new EU data protection regulation (the General Data Protection Regulation, GDPR) which will replace the Data Protection Directive 1995 from 2018. As a regulation, the GDPR will be directly effective in member states without need for implementing legislation.

The aim of the GDPR is to have a more unified approach to data protection. It also contains a much more prescriptive set of obligations with stronger restrictions on staff data-processing overall and a generally stronger framework overall. There will also be higher penalties for infringement.

Whilst the GDPR will not be implemented for at least two years, businesses will need to get up to speed with the new obligations and how internal processes will be affected. Separately, the Information Commissioner’s Office has published guidance for organisations on how to prepare for the GDPR.

The EU parliament press release can be viewed here: http://www.europarl.europa.eu/news/en/news-room/20160407IPR21776/Data-protection-reform-Parliament-approves-new-rules-fit-for-the-digital-era

 

Trade Secrets Directive

The European Parliament has voted to approve a new EU Trade Secrets Directive. If the European Council approves the Directive it will come into force 20 days after publication in the Official Journal and member states will have two years from that date to implement it into national legislation.

The proposed Directive aims to harmonise across member states the protection given to trade secrets by setting a minimum standard although member states can apply more stringent legislation. The proposed definition of a trade secret is narrower than that for ‘confidential information’ under UK law. The Directive aims to prohibit:

  • the acquisition of a trade secret through unlawful access or other conduct contrary to ‘honest commercial practices’
  • the use or disclosure of a trade secret where this breaches a contractual or other duty
  • the exploitation of goods produced using the trade secret where the user knew or ought to have known that it was obtained unlawfully.

The Directive will have an impact on restrictive covenant and confidentiality agreements, which should be reviewed if the Directive is (as it is expected it will be) passed in late May.

The European Parliament’s press release can be read here: http://www.europarl.europa.eu/news/en/news-room/20160407IPR21787/Trade-secrets-protecting-businesses-safeguarding-the-right-to-information

 

Blanket prohibition on ‘check-off’ dropped from TU Bill

The government has conceded that check off (the option of paying for union membership direct through salaries) will remain where there is an agreement with an employer to provide check off but subject to the union bearing the costs.

https://hansard.parliament.uk/lords/2016-04-19/debates/16041943000712/TradeUnionBill

Separately, the House of Lords has voted in favour of certain amendments, including:

  • an independent review of electronic balloting
  • pilot schemes to design the implementation of electronic balloting
  • excluding workers from the new 40% threshold for ballots in important public services if the union reasonably believes that they are not normally engaged in the provision of important public services at the time of the ballot

http://www.parliament.uk/business/news/2016/lords-trade-union-bill/

 

Emplaw Online provides a short summary of the Trade Union Bill and associated consultations at https://www.emplaw.co.uk/node/24616

 

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016 have been published, to come into force on 8th May, amending the Conduct Regulations 2003 to reduce certain regulatory burdens on employment agencies and employment businesses by omitting some of the regulations while continuing to protect work-seekers. The Amendment Regulations also amend Regulation 27A to bring generic recruitment advertising, as well as advertising to fill specific posts, within the requirement that employment agencies/ businesses that wish to advertise elsewhere in the EEA for work-seekers to take up jobs in Great Britain must also advertise in English in Great Britain. Guidance will be published separately.

http://www.legislation.gov.uk/uksi/2016/510/introduction/made

 

Emplaw Online provides a short summary of The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2016  at https://www.emplaw.co.uk/lawguide/conduct-employment-agencies-and-employment-businesses-amendment-regulations-2016

 

Freedom to speak up: raising concerns (whistleblowing) policy for the NHS

The NHS has issued a national policy found at https://improvement.nhs.uk/uploads/documents/whistleblowing_policy_30march.pdf

HMRC Guidance on employment intermediaries

HMRC has published updated guidance on employment intermediaries to be included in HMRC’s Employment Status Manual. The information supplements the guidance on agency legislation.

https://www.gov.uk/government/publications/employment-intermediaries-personal-services-and-supervision-direction-or-control

 

Consultation on tackling tax evasion

HMRC has published a consultation on tackling tax evasion, principally legislation and guidance for a corporate offence of failure to prevent the criminal facilitation of tax evasion. Consultation closes on 10 July 2016.

https://www.gov.uk/government/consultations/tackling-tax-evasion-a-new-corporate-offence-of-failure-to-prevent-the-criminal-facilitation-of-tax-evasion

 

Consultation on NMW and NLW

The Low Pay Commission has launched a consultation seeking views on the existing rates of the national minimum wage and national living wage, the rates that should apply as well as on how firms are adjusting to the NLW and the impact it is having on pay, terms and conditions, income, hours, employment and competitiveness.

https://www.gov.uk/government/consultations/national-living-wage-and-national-minimum-wage-2016-evidence

 

Consultation on calculating pension loss

A working group of employment judges has produced a consultation paper with a view to reviewing compensation for loss of pension rights in employment tribunals in order to reflect changes in pension law and practice.

https://www.judiciary.gov.uk/publications/compensation-for-loss-of-pension-rights-in-employment-tribunals/

 

Acas guide to combat sex discrimination in the workplace

Acas has published a new guide to help employers and managers identify, tackle and prevent sex discrimination in the workplace.

http://www.acas.org.uk/index.aspx?articleid=5699

 

Acas guide for employing apprentices and young workers

Acas has launched a new guide to help employers manage and support apprentices and young workers.

http://www.acas.org.uk/index.aspx?articleid=5668

 

Non–compete clauses.

The Government has announced that it will shortly be launching a call for evidence asking for views on non-compete clauses as part of ‘action to prevent red tape from stifling entrepreneurship’.

CASES: 

Morris-Garner and another v One Step (Support) Ltd [2016] EWCA Civ 180

Damages for breach of confidentiality and non-compete restraints

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Case Summary Tag: 

Axon v Ministry of Defence and News Group Newspapers [2016] EWHC 787

Naval Officer had no reasonable expectation to privacy with regards to behaviour subject to disciplinary proceedings

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Case Summary Tag: 

Michael Phillips v HMRC [2016] UKFTT 0174

PILON was taxable as compensation not earnings

Where there is no provision in a contract of employment for payment to be made in lieu of notice, the tax position on such payments can be unclear. In Phillips v HMRC, Mr Phillips appealed against the levy of income tax by HMRC on pay in lieu of notice made pursuant to a compromise agreement with his employer. Mr Phillips’ contract of employment made no provision for pay in lieu of notice.

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Case Summary Tag: 

Private Medicine Intermediaries Ltd and others v Hodkinson UKEAT/0134/15

Constructive dismissal where employer raised concerns during stress-related sick leave

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Dansk Industri, acting on behalf of Ajos A/S v Estate of Karsten Eigil Rasmussen C-441/14

Advocate General rules that severance scheme was unlawfully discriminatory

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Morgan v Royal Mencap Society UKEAT/0272/15

ET wrong to strike out whistleblowing complaint about working conditions.

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Wasteney v East London NHS Foundation Trust EAT 0157/15

Not discriminatory to discipline employee for imposing religious views

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Nayak v Royal Mail Ltd UKEATS/0011/15

Fair dismissal for some other substantial reason with regard to right to work in UK

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Case Summary Tag: 

Gallop v Newport City Council UKEAT/0118/15

Knowledge of disability could not be imputed to the organisation generally

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Tanveer v East London Bus & Coach Company Ltd UKEAT/0022/16

Corresponding date rule applies when calculating one month extension under early conciliation rules

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Gurieva and another v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB)

Private investigator must comply with subject access request

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