Emplaw Monthly - May 2016

New this month at Emplaw.co.uk

Trade Union Act 2016

A summary of the progress of the Trade Union Bill, the accompanying consultations and impact assessments and the final provisions of the Trade Union Act which received Royal Assent on May 4th 2016.

Enterprise Act 2016

A short summary of the Enterprise Act 2016 which received Royal Assent on 4th May 2016, together with information and links to accompanying consultations, as relevant to employment matters.

EU Referendum - The Impact For Pensions, Tax And Employment Law

An insightful article by Emplaw Online authors Gowling WLG. See also last month’s article Brexit: How would it affect UK employers and employees? which highlighted some potential specific changes and explained that the reality depends on the politics of future UK governments and the subject matter of the cases that come before the courts.

Focus On Emplaw Online Content

Following last month’s abolition of contracting out, we would highlight the extensive series of guides on employment related Pension matters drafted by Gowling WLG listed here.   As well as the card on contracting out, they cover the issues of auto enrolment, the role of the Pension Regulator, discrimination, TUPE,  unfair dismissal, salary sacrifice, pension tax allowances, employees as trustees, an employer’s ability to change pension arrangements, scheme funding and underfunded schemes and scheme risk management.

Employment Law News

National Innovation Plan: non-compete clauses

BIS has announced plans to look into employment rules that could be stifling British entrepreneurship. As part of this inquiry, the government has launched a call for evidence asking for views on ‘non-compete clauses’. There have been suggestions that such clauses can hinder start-ups from hiring the best talent and views are therefore sought from individuals and employers on whether they act as a barrier to innovation and employment.

Trade Union Act 2016

The Trade Union Act 2016 was passed on 4 May 2016. The Act will not come into force immediately and some provisions will require implementing regulations. Phased implementation is expected to commence this year and some changes, such as check-off, will be delayed until 2017.

For more information see fuller article this month at emplaw.co.uk

Posted Workers Enforcement Regulations

The Posted Workers (Enforcement of Employment Rights) Regulations 2016 have been laid before Parliament. Construction workers who have been posted to the UK will have the right to make a claim against their employer’s contractor for the non-payment of wages (up to the national minimum wage). There are also provisions to allow for cross-border enforcement of financial administrative penalties/ fines.

Enterprise Act 2016

The Enterprise Act 2016 was passed in May. The Act establishes the role of a Small Business Commissioner who will support small businesses (with fewer than 50 employees) by resolving disputes and providing general advice and support. Apprenticeships will be overhauled: the government aims for there to be 3 million apprenticeships by 2020.

The Act also includes proposals to improve conditions for Sunday workers.

Most prominently, the Act caps termination payments to public sector workers. Draft Regulations have been published and will introduce a cap of £95,000 for any such payments, including ex gratia payments, notice pay and pension. The regulations are expected to come into force in October 2016.

For more information see fuller article this month at emplaw.co.uk

Consultation over tips and gratuities

The government has launched a consultation to bring greater transparency to tipping for workers and consumers by making clear that suggested discretionary payments for service are discretionary. Options include updating the current voluntary code of practice and putting it on a statutory footing. The consultation also covers preventing or limiting any employer deduction from discretionary payments for service, except for those required under tax law.

Immigration Act 2016

The Immigration Act 2016 came into force on 12 May 2016. The Act will:

  • Introduce new sanctions on illegal workers and rogue employers
  • Provide better co-ordination of regulators that enforce workers’ rights
  • Prevent illegal migrants in the UK from accessing housing, driving licences and bank accounts
  • Introduce new measures to make it easier to enforce immigration laws and remove illegal migrants.

https://www.gov.uk/government/collections/immigration-bill-2015-16

General Data Protection Regulation

The General Data Protection Regulation will replace the current Data Protection Directive and apply in all member states from 25 May 2018.

Businesses now have a fixed deadline for mandatory compliance with the official GDPR text.

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2016:119:TOC

CASES: 

Garamukanwa v Solent NHS Trust UKEAT/0245/15

No expectation of privacy under Article 8 in respect of emails sent to work colleague

In Garamukanwa v Solent NHS Trust the EAT upheld a tribunal’s finding that Mr Garamukanwa (Mr G), a clinical manager for the Trust, had no reasonable expectation of privacy under Article 8 European Convention on Human Rights (Convention) in respect of emails sent to a work colleague, with whom he had had a relationship, and photographs on his iPhone.

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Hayfin Opal Luxco 3 SARL & another v Windermere VII

Agreed sums in event of breach of contractual obligation: ability to pay is irrelevant

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Case Summary Tag: 

Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd [2016] EWCA Civ 396

Anti-oral variation clause in a contract can be varied by consent

In Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd the Court of Appeal considered an anti-oral variation clause in a supply contract, which read: ‘this Agreement […] is the only agreement between the parties relating to the subject matter hereof. It can only be amended by a written document which (i) specifically refers to the provision of this Agreement to be amended and (ii) is signed by both parties’.

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Case Summary Tag: 

Reveille Independent LLC v Anotech International (UK) Ltd [2016] EWCA Civ 443

Acceptance of Deal Memo by conduct led to binding contract

In Reveille v Anotech International Ltd the Court of Appeal considered whether there is a binding contract in circumstances where a written offer document states that it is not binding until signed by the offeree and the offeree does not sign but performs in the manner contemplated by its terms. This may be of interest where an employer has required signature to indicate acceptance of certain benefits and terms.

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Case Summary Tag: 

Risby v London Borough of Waltham Forest UKEAT/0318/15

Discrimination arising from disability: causal link can be loose

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R o/a Hottak and AL v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence [2016] EWCA Civ 438

Territorial scope of Equality Act 2010 matches that for unfair dismissal

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Croydon Health Services NHS Trust v George UKEAT/0139/15

Getting the correct comparator in a discrimination claim

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Lincolnshire County Council v Lupton UKEAT/0328/15

Nature of employment must be specified on re-engagement order

The EAT has held in Lincolnshire County Council v Lupton that an ET erred by failing to specify the nature of the employment within section 115(2)(b) ERA 1996(re-engagement order) and by failing to address the practicability of re-engagement, particularly having regard to the individual’s own evidence.

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Department for Transport v Sparks and others [2016] EWCA Civ 360

Absence management provisions in staff handbook incorporated into employees’ contracts of employment

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Case Summary Tag: 

Pendleton v Derbyshire CC and Governing Body of Glebe Junior School UKEAT/0238/15

Dismissal of teacher for staying with husband who downloaded pornographic images of children was indirect religious discrimination

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Secretary of State for Justice v Windle and Arada [2016] EWCA Civ 459

Freelance interpreters were not employees for purposes of the Equality Act

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