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Emplaw Monthly - End of June 2016

New this month at Emplaw Online

What does Brexit mean for employment law?

An issue which last week was a theoretical one is now a reality. Now, we really do need to think what it means for employment law! With this in mind, we round up some useful articles which deal with the process of leaving and the consequences for employment law.

Samira Achbita v G4S Secure Solutions NV: a dangerous new concept of direct discrimination

In our Contributor Features section we link to the blog by Emplaw author and barrister from Cloisters, Declan O'Dempsey on how the AG’s much publicised opinion in this case (concerning the wearing of an Islamic headscarf at work) represents a new, and potentially dangerous, analysis of the concept of direct discrimination and appears to weaken the protection given to religion and belief under European Law.

The Immigration Act 2016

For subscribers only, a short summary of the Immigration Act 2016 which received Royal Assent on 12th May 2016 and details of the provisions coming into force on 12th July, as relevant to employment matters.

Focus On Emplaw Online Content

Drafting or reviewing contracts of employment? Our guide to what is required in a written statement of particulars, written by solicitor Nicola Whelan of Moorcrofts, in invaluable. See too the other guides in our Contracts of Employment section.

Employment News

Modern Slavery Conviction

DJ Houghton Chicken Catching Services has been found liable for victims of modern slavery in a landmark high court judgment. Six Lithuanians brought a civil case seeking compensation after being exploited by a Kent-based gangmaster firm that employed them. The men frequently worked on farms producing eggs for the leading supplier to major supermarkets such as Tesco and McDonalds.

The court ruled that the men were owed compensation for the agricultural minimum wage, for charging prohibited work-finding fees, unlawfully withholding wages and for depriving the workers of facilities to wash, eat and drink.

Immigration Act 2016 – provisions in force

By virtue of its first Commencement Order, the following provisions come into force on 12 July 2016:

· The existing criminal offence of knowingly employing an illegal migrant is extended to the situation where an employer has ‘a reasonable cause’ to believe that a person is an illegal worker and the maximum penalty will increase from two to five years.

· The establishment of a Director of Labour Market enforcement who will oversee the relevant enforcement agencies i.e. the Gangmasters and Labour Abuse Authority, the Employment Standards Inspectorate and HMRC.

· The offence of working illegally and the power to seizing illegal workers’ earnings as the proceeds of crime under the Proceeds of Crime Act 2002.

Online ET decisions database

HM Courts and Tribunals Service is rolling out a new decisions database. This database will allow users to search for judgments using an internet link from any location and will remove the need for users who wish to view the register or search for judgments to attend in person at the Bury St Edmunds or Glasgow office. It is envisaged that the online service will be available from autumn 2016.

Mike Ashley gives evidence to BIS

Mike Ashley, founder of Sports Direct, has made a number of admissions during questioning by MPs over treatment of his staff. Compulsory unpaid searches at the end of a shift meant that staff were not being paid the national minimum wage. A BBC investigation further revealed that staff were terrified about the consequences of taking time off work, so much so that in two years ambulances were called out 76 times to the Shirebrook site, many of the calls being for ‘life-threatening’ illnesses.

Tribunal quarterly statistics January-March 2016

The government has published tribunals and gender recognition statistics for January to March 2016.

During this period:

  • Employment tribunals received 4,200 single claims (down 1% on the same period in 2015) and disposed of 3,800 single claims, (down 6% on the same period of 2015).
  • 2,189 issue fee remission applications were submitted, of which 62% were either fully or partially successful, and 648 hearing fee remission applications were submitted, of which over 85% were either fully or partially successful.

Unison judicial review of ET fees

R (Unison) v Lord Chancellor and another will be heard in the Supreme Court on 7 and 8 December 2016.

The Court of Appeal dismissed the challenge to the introduction of employment tribunal fees, finding that the Secretary of State had not acted unlawfully in imposing fees in the employment tribunals and EAT.

Judicial Office: "The Judicial System of England and Wales: A visitor's guide"

The Judicial Office has published a ‘visitors’ guide’ to the judicial system of England and Wales. Whilst aimed at foreign visitors, it is a useful summary which includes civil and criminal law structures and so useful in broadening the knowledge of UK specialists.

The guide covers:

Courts and tribunals: information on the structure of the courts and routes of appeal

The justice system: including an outline of the various "sources of Law", and a section on the judiciary's relationship with the European Court of Human Rights (ECHR), The Court of Justice of the European Union (CJEU), and the International Criminal Court (ICC).

Judges in England and Wales: an outline of the structure of the judiciary and judges' roles

Judicial governance and administrative responsibilities: details about the system for appointing judges, swearing in and the judicial oath.

University of Essex increases female salaries to decrease gender pay gap

The University of Essex is giving its female professors a one-off salary increase to wipe out a gender pay gap. Pay analysis by Times Higher Education showed that nationally there is a persistent pay gap for female professors, 5.8% less on average than men (£74,682 against £79,252). For Essex, the gap was shown to be less at just 3.1% (£2,439) but the University chose to act quickly is increasing female professors pay to bring their average salaries level with men.

Psychoactive Substances Act – in force 6th May

Employers may wish to review their drug and alcohol polices to ensure they cover Psychoactive Substances. For the purposes of the Act a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state - emotional state - commonly known as ‘legal highs’).

The Act sets out a number of offences including to intentionally or recklessly produce or supply a psychoactive substance and provides that supply within the vicinity of a school will be an aggravating factor .There is a list of exemptions, which includes legal substances that are in everyday use, such as nicotine, coffee and alcohol.

ICO publishes priorities on GDPR

The Information Commissioner's Office (ICO) has published details of what guidance on the General Data Protection Regulation (GDPR) organisations can expect and when they will receive it.

In the first phase, the ICO will build on the 12-step checklist it has already produced and focus on guidance to assist organisations to get to grips with the key changes.

ICO Guidance: What to expect and when.

ICO prosecutes former company employee for unlawfully obtaining client data

The Information Commissioner's Office has prosecuted an employee who transferred information about company clients before moving to a new job. The employee sent details of 957 clients to his personal email address before starting a new role at a rival company. The email contained commercially sensitive information, which included personal data in the form of contact details and the purchase history of customers.

The prosecution was brought under section 55 of the Data Protection Act 1998. The employee was fined £300 and ordered to pay a victim surcharge of £30 and £405.98 in costs.

ICO Enforcement notice: 26 May 2016.

European Commission and social media sites launch code of conduct on illegal online hate speech

The European Commission has published a code of conduct agreed with Twitter, Microsoft, Facebook and YouTube that sets out how they do/should respond to unlawful hate speech posted by users.

The EU Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law and national laws transposing it defines illegal hate speech to include ‘public incitement to violence or hatred directed against a group of persons or a member of such a group defined on the basis of race, colour, descent, religion or belief, or national or ethnic origin’

Obligations under the code include reviewing the majority of valid notifications within 24 hours and removing or disabling access to the relevant content where necessary.

European Commission press release, 31 May 2016.

Trade Union Act 2016 will apply to Welsh public services

Baroness Neville-Rolfe has restated the government's position that the Trade Union Act 2016 will apply to Welsh public services on the basis that it is about employment and industrial relations law, which are reserved matters under the devolution agreement. This is despite the fact that in January 2016, the Welsh

Assembly refused to give legislative consent to the Trade Union Bill, arguing that it intruded on the delivery of public services which is a devolved matter

Hansard, House of Lords written answers, 7 June 2016, at column HL22.

Trade secrets: Council formally adopts Trade Secrets Directive

On 27 May 2016 the Council formally adopted a Directive of the European Parliament (EP) and of the Council on the protection of trade secrets against their unlawful acquisition, use and disclosure.

The Directive has been adopted will now be published in the Official Journal and enter into force after 20 days. Member states have two years following the date of adoption of the Directive to bring into force the laws, regulations and administrative provisions necessary to comply with its provisions.


JC v Gordonstoun Schools Limited [2016] CSIH 32

ADHD held not to be a disability

In JC v Gordonstoun Schools Ltd a 16 year old female boarding school pupil, M, was found having sex with a male student on a teacher’s desk one evening. The school principal excluded both pupils. M’s mother claimed that her daughter was disabled as she suffered from a form of ADHD and that the school’s decision amounted to unlawful disability discrimination.

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Tottenham Hotspur v HMRC [2016] UKFTT 389

Payments for surrender of players’ rights were not taxable as earnings

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CA, RA, RB and RC v News Group Newspapers Limited [2016] UKEAT 0075/16

Restricted Reporting Order survives settlement

In CA, RA, RB and RC v News Group Newspapers the EAT has held that an ET had jurisdiction to consider an extant restricted reporting order (RRO) notwithstanding the fact that the claims had been withdrawn on settlement. Nor did the RRO expire automatically upon withdrawal of the claim. Rule 50(1) of the 2013 Rules permits RROs that are wider in extent and circumstances than RROs permitted under section 11 Employment Tribunals Act 1996 and Rule 50(3)(d) of the 2013 Rules.

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Taiwo v Olaigbe and another/ Onu v Akwiwu [2016] UKSC 31

Maltreatment of migrant workers did not amount to discrimination on ground of nationality

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Gomes v Higher Level Care Limited UKEAT/0017/16

No award for injury to feelings for breach of Working Time Regulations

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Achbita and another v G4S Secure Solutions NV (Case C 157/15)

AG states that banning of religious symbols was not direct discrimination

The Advocate General in Achbita v G4S Secure Solutions NV had to consider whether a private employer was permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace. Was that employer permitted to dismiss her if she refused to remove the headscarf at work?

From the point of view of EU law, the framework for resolving the issue was the Anti-Discrimination Directive, Directive 2000/78/EC.

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Carreras v United First Partners Research [2016] UKEAT 0266_15_0704

Expectation of working late was a PCP

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Holmes v Qinetiq Ltd UKEAT/0206/15/BA

 No requirement to apply ACAS Code in case of ill health dismissal

Mr Holmes, a security guard, was dismissed on grounds of ill health on the basis that he was no longer capable of doing his job. An ET found his dismissal to be unfair but it did not apply an ACAS uplift to compensation because:

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