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Emplaw Monthly - End of October 2016

New from Emplaw Online

CPD for solicitors - new approach mandatory for all solicitors from 1 November 2016

An article on the new requirements and how Emplaw Online provides the learning to support continuing competence and the tools to record and evaluate it.

Shared Parental Leave: Do your policies discriminate against men?

Click here for an article by Moorcrofts following the recently reported case of Snell v Network Rail Infrastructure Limited where the ET found that the employer’s policy of offering enhanced shared parental leave pay to mothers but not to fathers or the mother’s partner amounted to sex discrimination. This article explores the grounds for the decision and its potential impact for other employers.

Moorcrofts are authors of Emplaw Online content on Contracts of Employment. 

Focus On Emplaw Online Content

Annual Subscribers have a personal online Learning & Development page (L&D - linked at the top of each page just below the emplaw online logo) where they record and assess their learning with useful prompts. Solicitors can create a Learning & Development Record and Evaluation sheet to store and print as required as part of their training record.



Employment News

Equality and Human Rights Commission research report on recruitment in Britain

The EHRC has published a research report examining employers’ practices and attitudes to employing UK-born and foreign-born workers. The EHRC found that in most cases, employers appointed workers on their ability to do their job rather than where they came from. There was also evidence of a lack of knowledge about the law, which could also lead to unlawful discrimination.


Asda equal pay claim

More than 9,500 women working for Asda are bringing the UK’s largest private sector equal pay claim valued at around £100m. The shop floor workers argue that they received between £1 and £3 an hour less than staff at Asda’s distribution centres, the majority of whom are men. Asda had tried to argue that as the shops and distribution centres were in different locations and the staff had different pay arrangements, they were able to pay the staff the rates they chose. At a preliminary hearing an employment tribunal let the claim proceed, finding that Asda could have ensured that staff received equal pay but chose not to.

Refusal to bake ‘gay cake’ was discriminatory

The Northern Ireland Court of Appeal has upheld the county court decision in Lee v Ashers Baking that there was direct discrimination on the grounds of sexual orientation when a bakery refused to bake a cake with graphics supporting same-sex marriage for a gay customer .Their refusal was because they held a religious belief that promoting homosexual relations or same sex marriage would be sinful.

The Court held that this was a case of association with the gay and bisexual community and the protected characteristic was the sexual orientation of that community and accordingly this was direct discrimination.

The Court of Appeal went on to consider the bakery proprietors’ approach that their religious belief was being penalised and they were receiving less favourable treatment.  The Court held that they had fallen foul of the legislation because they were providing services in a discriminatory manner. The bakers were entitled to refuse to decorate cakes involving any religious or political message, but they were not allowed to provide a service that only reflects their own religion or political belief.

The ‘gig’ economy under the spotlight

Matthew Taylor, who headed No 10 policy unit under Labour, has been appointed by the Prime Minister to examine the so-called ‘gig’ economy with a view to addressing concerns about a lack of workplace rights for individuals in non-standard work arrangements, such as maternity leave, holiday pay and sick pay and pensions protections. Mr Taylor estimates that around one in five British workers are in such “non-standard work arrangements”

Meanwhile BEIS (Business, Energy and Industrial Strategy – the new government department post BIS) has launched an inquiry into the status and rights of those working in the 'gig economy'. Its terms of reference include consideration of whether the term “worker” is defined sufficiently clearly in law at present as well as the level of government support such as statutory sick pay, holiday pay, employee pensions and maternity pay for such individuals. The inquiry will also examine the role of trade unions in representing the self-employed and those not working in traditional employee roles.

Details of the inquiry are found here. Written submissions can be made until Monday 19 December 2016.

As this newsletter was circulated on 28th October,  an Employment Tribunal  ruled  that two Uber drivers are indeed 'workers' within the meaning of the Employment Rights Act 1996 (not 'employees' as erroneously reported by some news outlets)

For more information on categories of worker & working relationships see Emplaw Online key card-employees, workers, agency and others

Contractual duties of good faith

Where employment law leads, other areas follow …  a very interesting speech by Mr Justice Leggatt

Modernising judicial terms and conditions

The Ministry of Justice has launched a consultation on proposals including introducing a new single fixed term for new fee-paid judges. The consultation closes on 10th November



FCA/PRA package of rules and consultations

The Financial Conduct Authority and the Prudential Regulation Authority have published a package of final rules, consultation papers and proposals on accountability, remuneration and whistleblowing.

The FCA has published the following consultations:

·        Remuneration in CRD firms: CP 16/28

·        Applying conduct rules to all non-executive directors in the banking and insurance sectors: CP 16/27

·        Whistleblowing in UK branches of overseas banks: CP 16/15

·        ‘Duty of responsibility’ which came into force on 10 May 2016: CP16/26

The FCA has also published a policy statement on regulatory references final rules: PS 16/22.

The final rules on regulatory references will be of interest to banks and insurers as well as to candidates for regulatory roles in the Senior Managers and Certification Regime and the Senior Insurance Managers Regime (SIMR). The FCA is also making changes to its handbook in light of the EBA guidelines published in December 2015, simplifying the guidance on remuneration and proportionality and proposing new non-Handbook guidance on FAQs.

The PRA has published a policy statement on regulatory references (PS 27/16), final rules on buy-outs of variable remuneration (PS 26/16), a consultation on the PRA’s approach to remuneration (CP 33/16, which will consolidate three existing supervisory statements) and a consultation on whistleblowing in UK branches (CP 35/16).

The PRA is also consulting on a series of improvements to the Senior Managers Regime and the SIMR, including draft guidance on the PRA’s expectations on the statutory duty of responsibility and the concept of ‘reasonable steps’.















Presidential guidance: Judicial Assessment Procedure

The President of the Employment Tribunals has issued a protocol which sets out the basis on which ETs will offer to parties the facility of Judicial Assessment (JA) of their cases. JA is an impartial and confidential assessment by an employment judge, at an early stage of the proceedings, of the strengths, weaknesses and risks of the parties’ respective claims, allegations and contentions. This guidance will be particularly helpful where a party is unrepresented.


Guidelines on prosecuting cases involving communications sent via social media

The Crown Prosecution Service has published guidelines setting out the approach that prosecutors should take when making decisions in relation to cases where it is alleged that criminal offences have been committed by the sending of a communication via social media. They are designed to give clear advice to prosecutors who have been asked either for a charging decision or for early advice to the police as well as reviewing cases which have been charged by the police. The guidelines cover the offences that are likely to be most commonly committed by the sending of communications via social media.


Great Repeal Bill

Theresa May has announced that the UK will begin the formal Brexit negotiation process by the end of March 2017. The timing on triggering Article 50 means that the UK is to leave the EU by summer 2019.


Brexit letter to David Davis

Emily Thornberry, shadow foreign secretary, and Keir Starmer, shadow Brexit secretary, have written to David Davis in advance of an Opposition Day debate demanding that Parliament should be given a vote on the government’s Brexit plan before Article 50 is triggered. Labour has also requested answers to 170 key questions, including on the safeguarding of key employment rights.


British Gas Trading Limited v (1) Lock (2) Secretary of State for Business, Innovation and Skills [2016] EWCA Civ 983

Calculation of holiday pay includes commission

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Buchanan v Commissioner of Police of the Metropolis UKEAT/0112/16

Discrimination arising from disability: was the treatment justified?

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Salvation Army Trustee Company v Bahi and others UKEAT/0120/16

Changes in the way contract was carried out did not prevent SPC transfer

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Case Summary Tag: 

Unite the Union v Nailard UKEAT/0300/15

Elected officers were not employees of trade union under Equality Act

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Snell v Network Rail Infrastructure Ltd S/4100178/2016

Indirect discrimination on ground of sex for unequal provision of pay during shared parental leave

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Glasgow City Council v Bensalem Dahhan UKEATS 0024/15

Capacity to enter into contract

The issue in this appeal is whether an ET has power to set aside a purported settlement agreement on the basis that one of the signatories to the agreement lacked the capacity to enter into it. While there are a number of authorities in relation to the power of the ET to set aside settlement agreements, none of those has related to contractual capacity as opposed to an absence of agreement through essential error or misrepresentation.

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Case Summary Tag: 

McFarlane and another v easyjet Airline Company Ltd ET/1401496/15 & ET/3401933/15

ET holds airline’s rosters indirectly discriminated against breastfeeding mothers

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