Emplaw Monthly - End of November 2016

New On Emplaw Online

Autumn Statement: key employment announcements

The Chancellor presented his Autumn statement to Parliament on 23 November 2016. The key points relevant to employment law are set out in this article

Working Time and Contractual Holiday - the cases and the law in a nutshell

Click here for this updated article which provides an excellent, straight forward summary of the up to  date law and the key cases on holiday entitlement. . It examines the issues around carry over, including cases involving long term sickness and family leave and also how holiday pay is calculated.

The Apprenticeship Levy

Click here for a detailed note from Emplaw authors Moorcrofts which covers in detail what the levy means for businesses and what businesses should be doing now in preparation.

Still useful:

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

Focus On Emplaw Online Content

This month we have added three new detailed guides to our website at emplaw.co.uk entitled Contracts of Employment – General Principles, Contracts of Employment – Express Termsand Claims for Breach of Contract. They are all drafted by law firm Moorcrofts and complement our existing content. Click on the links below for a list of the guides under associated topics:

Contracts of Employment

Enforcement: Employment Tribunals etc

Full content is available to Emplaw Online subscribers only

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Employment News

Racism at Work

Business in the Community has published a report into race at work using survey data collected by YouGov. The report considers under-representation of ethnic minorities in the workplace and at senior levels and also looks at racist abuse suffered at work. It puts forward recommendations for the government and calls on employers to take a tougher stance to combat racism within the workplace.

The report notes that ethnic minority workers are frequently subjected to racism by their colleagues, managers, customers, clients and service users, which can have a severe impact on their wellbeing and promotion prospects.

http://race.bitc.org.uk/all-resources/research-articles/race-work-report

Consultation on employment allowance

The government has published a consultation on draft regulations to restrict the employment allowance from employers of illegal workers, starting in 2018.

https://www.gov.uk/government/consultations/employment-allowance-restricting-the-allowance-from-employers-of-illegal-workers

Hampton-Alexander review

The Hampton-Alexander review has been published which looks at how to improve the gender balance in senior leadership of FTSE companies. The focus of the review’s first report is on the executive pipeline but also reports on the progress on Women on Boards of the FTSE as of 1 October 2016.

http://ftsewomenleaders.com/wp-content/uploads/2016/11/Hampton-Alexander-2016.pdf

TUC Guide on supporting trans members

The TUC has publishedTransforming the Workplace A TUC guide for trade union activists on supporting trans members

Acas Paper on Mental Health

Acas have published a Research Paper on The Management of Mental Health at Work. This supplements the existing Acas materials and guidance at http://www.acas.org.uk/index.aspx?articleid=1900#.WCw-OPFEZ78.linkedin

Work, health and disability consultation

TThe government has published a Work, Health and disability Green Paper: Improving Lives, which sets out proposals and seeks views on how to halve the disability employment gap. It quotes the figure that half (48%) of disabled people are in employment, compared to 80% of the non-disabled population. To some extent the comprehensive paper looks again at the issues covered by Dame Carol Black in her review back in 2008 which led to reform of the Fit Note system and the creation of the Fit for Work organisation. Clearly more needs to be done and of particular interest to employers are section 4 Supporting employers to recruit with confidence and create healthy workplaces and section 5 Supporting employment through health and high quality care for all.

There is a direct  link to the consultation questions at
https://consultations.dh.gov.uk/workandhealth/consult/. The Consultation closes on 17 February 2017.
 

Brexit

The House of Commons library has published a briefing paper on Brexit: some legal constitutional and financial unknowns. The unknowns cover areas such as a role for the UK Parliament and the devolved legislatures in the Brexit process, relations with the EU institutions, the economic impact on the UK, and changes to citizens’ rights.

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7761

House of Commons debate on Brexit

The House of Commons has debated exiting the EU and workers’ rights. The government has made clear that all workers’ rights enjoyed under the EU will be part of the Great Repeal Bill and will be brought across into UK law. The BEIS minister also stated that the government had no intention of having a ‘sunset clause’ that would mean all EU law expired unless it had specifically been endorsed anew by the Government.

https://hansard.parliament.uk/commons/2016-11-07/debates/605BEFA9-1A9E-443E-A746-BBCC40758D18/ExitingTheEUAndWorkers’Rights

House of Commons briefing paper on Brexit

The House of Commons library has published a briefing paper on Brexit and the EU court.

The High Court has ruled that the UK Government does not have prerogative power to give notice under Article 50 of the Treaty on European Union for the UK to withdraw from the EU. The Government is appealing to the Supreme Court. Some press reports suggest the Court of Justice of the EU (CJEU) would have the last word on this. But can the CJEU rule on matters of UK constitutional Law? Many experts believe that the question central to the case, but not ruled on by the High Court, was whether Article 50 notice, once given, could be withdrawn. If it can be revoked, then the argument that Article 50 notice leads inevitably to a loss of rights under the European Communities Act 1972 might not hold. This paper looks at the questions of revocability and referral to the EU Court.

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7763

ET judgments online

Judge Brian Doyle President, Employment Tribunals E&W reported to the ET National User Group that HMCTS' plans to place all Employment Tribunal judgments on the internet accessible to all stakeholders and users would be launched in either late 2016 or early 2017

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/569323/ET_NUG_minutes_25th_October_2016.pdf

 

Lord Chief Justice's annual report 2016

The Lord Chief Justice's 2016 annual report was published this month. The Lord Chief Justice reiterates his support for the tribunals modernisation programme as discussed in the joint statement issued by himself, the Lord Chancellor and the Senior President of Tribunals in September this year. The Lord Chief Justice states that the recommendations made in Briggs LJ's Civil Courts Structure Review: Final Report are being considered, including:

• Online Court – developed with staged case progression for all money claims up to £25,000 (save for specific exclusions), with funding and development of digital assistance for users who require it.

• Case officers – expansion of the court lawyers and officials who will relieve judges of lighter duties, under supervision and after appropriate training.

• Jurisdictional reform – more work to be moved out of London and the civil bench to be strengthened. Financial limits to be increased so that a greater range of cases can be heard outside the High Court.

• Enforcement – unification of service across civil courts.

• A new Procedural Code – for transfers between the High Court and County Court.

https://www.judiciary.gov.uk/wp-content/uploads/2016/11/lcj-report-2016-final-web.pdf

 

CASES: 

Aslam and others v Uber BV and others ET/2202550/15

Uber drivers are ‘workers’ for purposes of ERA, NMW and WTR

An employment tribunal has ruled that Uber drivers are ‘workers’ for the purposes of the Employment Rights Act 1996, National Minimum Wage Regulations 1998 and the Working Time Regulations 1998.

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Lee v McArthur & Ors [2016] NICA 39

Refusal to bake ‘gay marriage cake’ was discriminatory

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Bandara v BBC UKEAT/0335/15

ET should consider weight attached to previous final warning

Mr Bandara worked as a producer for the BBC with an unblemished record for 18 years.

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Case Summary Tag: 

Grange v Abellio London Ltd [2016] UKEAT 0130_16_1611

Failure to allow for rest breaks was a refusal to allow rest breaks under WTR

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The Interim Executive Board of X, R (on the application of) v Ofsted [2016] EWHC 2004

Not discriminatory to segregate sexes in faith school

In an administrative case concerning education, the High Court has held that an Islamic faith school which segregated male and female children from the age of nine did not unlawfully discriminate on the ground of sex contrary to the Equality Act 2010. There was no discrimination because both sexes, not just one sex, were being denied the opportunity to interact, etc.

Peter Oldham QC (instructed by X Council legal services) for Interim Executive Board of X

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Salaberria Sorondo (Judgment) [2016] EUECJ C-258/15

ECJ rules that upper age of 35 was not discrimination

The ECJ has ruled that a Spanish law which provided that recruits to be police officers for the Basque police and emergency services academy needed to be between the ages of 18 and 35 was not in breach of Article 2(2) of Directive 2000/78 (the Equal Treatment Framework Directive).

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Liddington v 2gether NHS Foundation Trust [2016] UKEAT 0065_16_2806

Costs awarded for failure to particularise claim

Ms Liddington appealed against a decision to award costs based on a finding of unreasonable conduct for failure to particularise her claims. The EAT rejected her appeal.

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Gilham v Ministry of Justice [2016] UKEAT 0087/16

District judges are office holders but do not work under contract of employment

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