Emplaw Monthly - End of February 2017

New On Emplaw Online

The Gender Pay Gap Regulations FAQs – private and public sector

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 come in to force on 6th April 2017 and the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 come in to force on 31st March 2017. Whilst the principle may be simple, understanding the detail is very much more complex. At Emplaw Online we have put together a set of probing FAQ's to give employment law specialists the information they need.

Click here

Employment law around the world

Emplaw Online authors Gowling WLG have published an artilce comparing key areas of the labour laws of Canada and  the UK,

Click here for the article

Meanwhile don't forget there is a free ebook available on Emplaw Online which considers employment law in over 60 jurisdictions. The reference book from Multilaw lawyers around the world is found here

Focus on Emplaw Online Content

There are a number of detailed guides in our section on Pay, Remuneration and Benefits covering matters such as the National  Minimum Wage, Unlawful Deductions from Wages as well as other pay and benefit issues. Recently refreshed, is a detailed card by Ian Fraser, partner at Simmons & Simmons summarising the main types of employee incentive awards operated by UK companies and their tax, legal and regulatory implications.

Employment Law News

Trade Union Act 2016: provisions coming into force on 1st March

 The following provisions of the Trade Union Act 2016 come into force on 1st March 2017—

(a) section 2 (ballots: 50% turnout requirement);

(b) section 3 (40% support requirement for industrial action ballots in important public services), to the extent that it is not already in force;

(c) section 5 (information to be included on the voting paper);

(d) section 6 (information to members etc about result of the ballot);

(e) section 7 (information to Certification Officer about industrial action etc);

(f) section 8 (two weeks’ notice to be given to employers of industrial action);

(g) section 9 (expiry of mandate for industrial action);

(h) section 10 (union supervision of picketing);

(i) section 11 (opting in by union members to contribute to political funds), to the extent that it is not already in force;

(j) section 12 (union’s annual return to include details of political expenditure);

(k) section 13 (publication requirements in relation to facility time);

(l) section 15 (restriction on deduction of union subscriptions from wages in public sector) for the purpose of making regulations under section 116B of the Trade Union and Labour Relations (Consolidation) Act 1992(1) (as inserted by section 15);

(m) section 18 (enforcement by Certification Officer of new annual return requirements)

http://www.legislation.gov.uk/uksi/2017/139/introduction/made

Emplaw Online publishes summary guides to recent Acts, including the Trade Union Act 2016. 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.

Increase to statutory limits

The Employment Rights (Increase of Limits) Order 2017 SI 2017/175 has been laid before Parliament increasing compensation limits for actions on or post 6 April 2017. Changes include:

  • the cap on a week’s pay for statutory payments such as  redundancy payments and the basic award for unfair dismissal, increases from £479 to £489
  • the limit on compensatory award in unfair dismissal cases increases from £78,962 to £80,541
  • guarantee pay increases from £26 to £27 per day

Acas/GEO Guidance on gender pay gap reporting

The Government Equalities Office and Acas have jointly published guidance on managing gender pay gap reporting. The GPG Regulations will come into force in April 2017.

http://www.acas.org.uk/index.aspx?articleid=5768

At Emplaw Online we have put together a set of probing FAQ's to give employment law specialists the information they need.

https://www.emplaw.co.uk/article/gender-pay-gap-regulations-faqs-%E2%80%93-private-and-public-sector

Employment tribunal judgments online

An online register of employment tribunal judgments is now live. 

https://www.gov.uk/employment-tribunal-decisions

Guidance on employing disabled people

The government has updated its guidance on employing disabled people and people with health conditions. The guidance provides a summary of information for employers to help:

1   increase their understanding of disability

2   enable them recruit and support disabled people and those with long term health conditions in work

It has links to other resources to enable employers to become more confident when attracting, recruiting and retaining disabled people.

https://www.gov.uk/government/publications/employing-disabled-people-and-people-with-health-conditions/employing-disabled-people-and-people-with-health-conditions

Government response to Women and Equalities Committee report on pregnancy and maternity discrimination

The government has responded to recommendations in the Women and Equalities Committee report on pregnancy and maternity discrimination. Most of the recommendations have not been accepted by the government.

https://www.gov.uk/government/publications/pregnancy-and-maternity-discrimination-response-to-the-select-committee-report

Employment status review published…after two years

The employment status review commissioned by the Department of Business, Innovation & Skills and the Department of Business, Energy & Industrial Strategy into different types of working has finally been published. It provides a snapshot of working practices in 2015.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/585383/employment-status-review-2015.pdf

The Taylor Review

The Taylor Review (considering how employment practices need to change in order to keep pace with modern business models) continued with the announcement that Matthew Taylor and the Modern Employment Review team will be visiting locations across country in the coming months to host public evidence hearings.

https://www.gov.uk/government/groups/employment-practices-in-the-modern-economy

In his submission to the review the MP Frank Field, Chairman of the Commons Work and Pensions Select Committee, has stated that the government should ensure that gig economy workers receive the national minimum wage and notice of termination. Mr Field told the review that all workers should benefit from a new ‘national standard of fair work in the gig economy’. Mr Field’s proposal comes amid multiple legal claims from individuals who have argued that they have been wrong classed as self-employed. The proposed national minimum standard would avoid the need for employment tribunals and HMRC to determine whether people are genuinely self employed and would instead automatically extend certain employment rights to all gig economy workers.

https://www.theguardian.com/business/2017/jan/31/gig-econoomy-guarantee-minimum-wage-frank-field

House of Commons: high heels and workplace dress codes

The Petitions Committee and Women and Equalities Committee has published their report "High heels and workplace dress codes", revealing the troubling experiences of workers affected by discriminatory dress codes. The report states: ‘The Government has said that the existing law is clear, and that the dress code that prompted this petition is already unlawful. Nevertheless, discriminatory dress codes remain widespread. It is therefore clear that the existing law is not yet fully effective in protecting employees from discrimination at work. We call on the Government to review this area of the law and to ask Parliament to change it, if necessary, to make it more effective.

The relationship between the provisions of the Equality Act 2010 and workplace dress codes is not widely understood. The Government has said that it expects employers to inform themselves about their legal obligations and to comply with the law. This approach is not working. The Government must do more to promote understanding of the law on gender discrimination in the workplace among employees and employers alike.

We recommend that the Government substantially increase the penalties available to employment tribunals to award against employers, including the financial penalties. At present, such penalties are not sufficient deterrent to breaking the law’.

http://www.parliament.uk/documents/commons-committees/petitions/291.pdf

Guidance: Off-payroll working in the public sector: reform of intermediaries legislation

From April 2017 there are changes to the way the current intermediaries legislation (known as IR35) is applied to off-payroll working in the public sector. Where the rules apply, people who work in the public sector through an intermediary will pay employment taxes in a similar way to employees.

The responsibility for deciding if the legislation should be applied, shifts from the worker’s intermediary to the public authority the worker is supplying their services to.

Where the rules apply, the fee-payer (the public authority, agency, or other third party paying the intermediary) will calculate Income Tax and primary National Insurance contributions (NICs) and pay them over to HMRC. These amounts will be deducted from the intermediary’s fee for the work provided.

The worker’s intermediary is able to set against its own Income Tax and NICs liability in the tax year, an amount equivalent to the Income Tax and NICs deducted from payments to it from the fee-payer.

The government has now published guidance to assist public bodies with the new rules.

https://www.gov.uk/guidance/off-payroll-working-in-the-public-sector-reform-of-intermediaries-legislation

Low recoupment of financial penalties

The Law Society Gazette has reported that the government is recouping just a fraction (£17, 704) of the financial penalties imposed upon employers at employment tribunals. Estimates when penalties were introduced were that around £2.8m a year would go the Treasury in fines.

https://www.lawgazette.co.uk/news/employment-tribunal-penalties-falling-short/5059394.article

Public sector exit payments

The power to make regulations to cap public sector exit payments at £95,000 is contained in the Small Business, Employment and Enterprise Act 2015. Regulation 2 of The Enterprise Act 2016 (Commencement No. 2) Regulations 2017 commences section 41 of the Act which inserts sections 153A-C conferring the power to make regulations to restrict such exit payments. Draft regulations were published in 2016

http://www.legislation.gov.uk/uksi/2017/70/contents/made

 

Draft Minimum Wage (Amendment) Regulations 2017

The draft Minimum Wage (Amendment) Regulations 2017 have been published, amending the 2015 Regulations. The 2017 Regulations will come into effect on 1 April 2017.

Regulation 2(2) increases the rate of the national minimum wage for workers who are aged 25 or over (“the national living wage rate”) from £7.20 to £7.50 per hour

Regulation 2(3)(a) increases the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 25) from £6.95 to £7.05 per hour

Regulation 2(3)(b) increases the rate for workers who are aged 18 or over (but not yet aged 21) from £5.55 to £5.60 per hour

Regulation 2(3)(c) increases the rate for workers who are under the age of 18 from £4.00 to £4.05 per hour

The apprenticeship rate applies to workers within regulation 5(1)(a) and (b) of the 2015 Regulations. Regulation 2(3)(d) of these Regulations increases the rate for such workers from £3.40 to £3.50 per hour .

Regulation 2(4) increases the accommodation amount which is applicable where any employer provides a worker with living accommodation from £6.00 to £6.40 for each day that accommodation is provided

http://www.legislation.gov.uk/ukdsi/2017/9780111153482

MoJ post implementation review of ET/EAT fees

The Ministry of Justice has published its post-implementation review of employment and employment appeal tribunal fees. The government concludes that its original objectives have broadly been met and maintains its position that it was right to introduce the reforms. The review found that the scheme is not discriminatory and that maternity and pregnancy discrimination claims have not been particularly affected

In acknowledging that there has been a significant drop in claims, the review prescribes that fees in some proceedings for recovery from the National Insurance Fund are scrapped with immediate effect and its proposes some changes in the remission scheme for low income claimants. These proposals are open for consultation until 14th March

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/587649/Review-of-introduction-of-fees-in-employment-tribunals.pdf

White Paper on Exiting from the EU

The government has published its policy paper on the UK’s exit from, and new partnership with, the EU.

The paper sets out the basis and broad strategy for achieving the 12 principles published on 17 January:

1. Providing certainty and clarity

2. Taking control of our own laws

3. Strengthening the Union

4. Protecting our strong historic ties with Ireland and maintaining the Common Travel Area

5. Controlling immigration

6. Securing rights for EU nationals in the UK and UK nationals in the EU

7. Protecting workers’ rights

8. Ensuring free trade with European markets

9. Securing new trade agreements with other countries

10. Ensuring the United Kingdom remains the best place for science and innovation

11. Cooperating in the fight against crime and terrorism12.  Delivering a smooth, orderly exit from the EU

https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper

CASES: 

Pimlico Plumbers & Mullins v Smith [2017] EWCA Civ 51

Plumber was worker not self employed

The issue in this appeal was whether the ET was correct to find that Mr Smith was a worker within the meaning of section 230(3)(b) Employment Rights Act 1996 and Regulation 2(1) Working Time Regulations 1998 and his working situation fell within the definition of ‘employment’ in section 83(2)(a) Equality Act 2010 during the period that he worked for Pimlico Plumbers. The Court of Appeal upheld the ET's judgement

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Pharmacists’ Defence Association Union v Boots Management Services Ltd [2017] EWCA Civ 66

Recognition of one union could be ousted by the derecognition process and the statutory scheme of recognition complies with the requirements of article 11 of the European Convention on Human Rights

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BALPA v Jet2.Com Ltd [2017] EWCA Civ 20

Rostering negotiations covered by statutory collective bargaining agreement on ‘pay, hours and holiday’

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Gareddu v London Underground Ltd [2016] UKEAT 0086/16

Employee’s request to attend religious festival not genuine

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P v Barclays Bank (PO-9253)

Bank required to do more than blindly accept medical advisor’s report in claim for ill health retirement

Mrs B, an employee of Barclays Bank, commenced long-term sickness absence in June 2010 with fibromyalgia. Dr Byars, an independent expert, reported to AXA PPP (Barclay’s occupational health advisor) that there was little likelihood in the foreseeable future of Mrs B returning to her former job.

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Case Summary Tag: 

Parker v MDU & MDU Pension & Life Assurance Scheme ET 2301271/2015

Pro rating of part timer’s pension not discrimination

Dr Parker started working for the MDU in 1987 and became a member of its pension scheme on 6 September 1987 (a final salary scheme).

She was an employee of the MDU and a member of the scheme for more than 27 years until she retired in January 2015. For most of that period she worked part-time at varying levels. She was paid the same salary as a full-timer on a pro-rata basis to take account of the fact that she worked fewer hours.

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