Emplaw Monthly - End of January 2017
New On Emplaw Online
Employment Law 2017 - What to look out for
2017 promises to be an exciting year. Click here for our article rounding up twelve key areas where developments are expected.
Seven reasons why 2017 will be a year of change for UK pensions
Emplaw Online author's Gowling WLG have brought together seven key issues and trends that they believe will define the year in pensions.
Click here for the article
Focus on Emplaw Online Content
Unsure where we are with the implementation of the Trade Union Act 2016, The Immigration Act 2016 and other recent legislation?
Emplaw Online publishes summary guides to recent Acts. They are up to date, straight forward and set out the key provisions and consequent Regulations and Codes.
Find the list of Acts here. Full content is available to Emplaw Online subscribers only.
Employment Law News
Gender Pay Gap Information for public as well as private sector
The Government has now published The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 which extend pay gap reporting to the public sector.
These Regulations, together with The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 which apply to private sector employers with 250 or more employees are expected to come into force in April 2017 and the first 'snapshot' date, on which pay information will focus, is 5 April 2017 for private sector employers and 31 March 2017 for public sector employers. The data must be published on the employer’s website within 12 months of the snapshot date.
Public sector apprenticeship targets from April 2017
The proposal from The Department of Education is for public bodies in England with 250 or more employees to be expected to adhere to a target of 2.3% starts each year based on the headcount of employees working in England. The target will be an average from 2017/18 - 2020/21 inclusive. The Government intends to introduce the target from April 2017 to coincide with the introduction of the apprenticeships levy and the Institute for Apprenticeships.
Reform to IR35
For contracts entered into, or payments made, on or after 6 April 2017 IR35 (the ‘intermediaries legislation’) will be reformed so that responsibility for deciding if the intermediaries legislation applies for engagements in the public sector will move from an individual worker’s personal service company to the public sector body, agency or third party paying them. That organisation will be responsible for deducting and paying associated employment taxes and NICs to HMRC. The change will not affect workers and personal service companies who provide their services to private sector organisations. The Finance Bill 2017 will include a new Chapter to Income Tax (Earnings and Pensions) Act 2003 to implement the change. It is expected that the measure will have a significant impact on public sector organisations who engage off-payroll workers and agencies that supply workers to the public sector.
Work Place Stress
The TUC has published a new guide – produced with the Health and Safety Executive (HSE) – to help trade union health and safety representatives tackle workplace stress.
BEIS Guidance on ‘Important Public Services’ regulations
Section 226(2B) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) requires ballots for industrial action, where the majority of union members who are entitled to vote are normally engaged in ‘important public services’, to have the support of at least 40% of members before they are valid, unless the union reasonably believes this not to be the case (the 40% threshold). Section 226(2D) of the 1992 Act allows the Secretary of State to make regulations to specify the ‘important public services’ captured by the 40% threshold, and the Government brought forward the Industrial Action (Important Public Services) Regulations 2016 (“the regulations”) for this purpose.
BEIS has now published guidance to accompany the ‘Important Public Services’ regulations and is intended for unions and employers whose members or employees deliver a specified important public service. It provides advice for unions on applying the 40% threshold in practice, and also suggests examples of workers who will be covered in each sector in the regulations.
Meanwhile the Welsh government has introduced the Trade Union (Wales) Bill to exclude certain provisions in the Act from applying to devolved Welsh authorities including the 40% threshold.
Emplaw Online provides (for subscribers) a straightforward and up to date guide to the Trade Union Act 2016 and associated Codes of Practice and Regulations here
TUC survey on sexual harassment
The TUC, together with the Everyday Sexism project, has published a survey and report on sexual harassment, ‘Just a Bit of Banter’. As Frances O’Grady notes, only one per cent of those women who had experienced sexual harassment confided in their union rep. The survey also reveals that sexual harassment is more prevalent for younger women and for those in precarious forms of work.
EHRC report on religion or belief
The Equality & Human Rights Commission (EHRC) has published a report on whether the law on religion or belief is working effectively, pursuant to its duty under the Equality Act 2010 to monitor the effectiveness of equality and human rights legislation. The EHRC has concluded that on balance the legislation is effective and strikes the right balance between competing rights, for example the right to manifest religious belief and the rights of others not to be discriminated against.
Employer challenges ET decision that employee’s claim not barred by compromise agreement
In this case, the DWP has appealed against a decision by the ET that it had jurisdiction to consider Ms Brindley’s claim in circumstances where she had signed a COT3 compromise agreement. The issue before the ET and the EAT was whether her current claims (Claim 2) were barred by the agreement under which Ms Brindley’s existing ET claims (Claim 1) were settled. The terms of the COT3 were that the terms were in full and final settlement of:
CitySprint cycle courier was a ‘worker’
The ET in Dewhurst v CitySprint has ruled that a cycle courier was a limb (b) worker within section 230(3)(b) ERA 1996. Ms Dewhurst claimed two days’ holiday pay in respect of holiday, which she had taken but had not been paid for.
Reason for dismissal must be what was in the mind of the employer at the time of dismissal
Two employees (the employees) were dismissed after Kellogg decided to close the workplace in which they were both employed and sought to invoke a contractual mobility clause: the employees had refused to relocate in accordance with Kellogg’s instruction.
Expired warning can be taken into account for ‘fair’ dismissal
The EAT held in this case that an expired warning can be taken into account as part of the overall circumstances under section 98(4) Employment Rights Act 1996 when the ET is considering whether a dismissal was fair or unfair. The facts of the previous misconduct, the fact that a warning was given and the fact that it had expired, were all relevant matters.
Govia Gtr Railway Ltd v The Associated Society of Locomotive Engineers and Firemen  EWCA Civ 1309
Court of Appeal refuses GTR injunction application
GTR, who own the franchise to run Southern Rail, applied for an interlocutory injunction to prevent ASLEF, the train drivers’ union from calling strike action called for a number of days in December 2016 and January 2017. The application was refused. The dispute was over the use of Driver Only Operated passenger trains which are already in widespread use by other train companies. The company wished to expand the procedure to certain other routes.
Deposit should not be set at too high an amount so that claimant cannot comply
In Hemdan v Ishmail and another , the EAT has ruled that a deposit Order was wrongly imposed in circumstances where the EJ recognised that the claimant would find it difficult to comply with its terms.
In fact it was not practically possible for Ms Hemdan to comply with the deposit Order, which was set at so high a level in context as to impede her access to justice because she could not comply with it.
No compensation for invention during employment
The Court of Appeal has upheld the High Court and Intellectual Property Office’s decisions that Mr Shanks was not entitled to compensation under ss 40 and 41 of the Patents Act 1977against Unilever and CRL (a subsidiary) relating to a European patent and related patents resulting from Mr Shanks’s invention of an Electrochemical Capillary Fill Device ("ECFD") during his employment at CRL. The rights to the ECFD invention belonged to CRL pursuant to section 39(1) of the Patents Act 1977. s40 reads: