Emplaw Monthly - End of March 2017

New On Emplaw Online

April Changes

Click here for a checklist of the key changes for employment specialists, all linked to more detailed and useful notes on the significant changes. The links to the individual notes are:

Achbita & Bougnaoui: A strange kind of equality

We posted the link to an article by Schona Jolly QC of Cloisters considering the CJEU decisions in the two recent cases concerning religious dress codes in the work place and how, potentially, they throw more obstacles in the way of minority communities and leave employers, particularly in the UK, unclear about their obligations.

Click here for the article

Focus on Emplaw Online Content

The update next month of the statutory limits highlights the hugely useful content we have on unfair dismissal. Our guides, drafted by Sian McKinley and Tamar Burton of Cloisters comprehensively cover what is automatically unfair, what is potentially fair and the potential awards and remedies. Click here for the full list of law cards.

Employment Law News

Please note more detailed information on upcoming legislative changes are found in our article on April Changes

Great Repeal Bill - White Paper published 

The government has published a White paper on The Great Repeal Bill. The paper was published on 30th March and the Bill will

  • Repeal the European Communities Act,
  • Convert  directly applicable EU legislation into domestic UK law
  • Preserve the laws we have made in the UK to implement obligations under EU Directives  (e.g the Equality Act)
  • Create powers (by means of secondary legislation) to correct laws  which would not operate appropriately when we leave the EU. The paper estimates 800 to 1000 statutory instruments will be required
  • On questions of interpretation of EU derived law, provide that historic CJEU case law be given the same precedent status in UK courts as decisions of the Supreme Court. This is partly directed at protecting worker's rights where they have been extended by CJEU judgements.

The government has also published  Guidance for businesses on the Great Repeal Bill

For employment law alone this is a gargantuan task - For example, EU laws will not simply slide into UK laws as they are written in a much more purposeful style than UK statutes and there is a large body of case law on the differences between some EU law and UK law (e.g The Working Time Directive/Working Time Regulations) and  those conflicts will not be resolved without political and legal argument.

Employment Rights Act 1996 at legislation.gov.uk

Usefully for practitioners, the act as published here is now the up to date version, Hopefully other acts will follow.

‘Race in the workplace’ report

An independent review into race in the workplace carried out by Baroness McGregor-Smith has been published. The review sets out recommendations for employers to improve diversity within their organisations. The review produces some stark statistics and facts. 14% of the working age population comes from a black or minority ethnic (BME) background. The employment rate of BME people is over 12% lower than the employment rate of white people. The review suggests that if BME talent is fully utilised, the economy could receive a £24 billion boost. Much of the bias is structural and historical, resulting from a system that benefits a non-BME group of people.

https://www.gov.uk/government/publications/race-in-the-workplace-the-mcgregor-smith-review

New discount rate for personal injury claims

The MOJ has announced, with effect from 20th March, a reduction in the discount rate (which is applied to personal injury damages to reflect interest from investment) from 2.5% to minus 0.75%. When an ET gives an award for future loss it generally follows the personal injury discount rate. The reduction will lead to increased awards and hence an increase in employer's insurance premiums is likely.

Apprenticeship Targets Regulations 2017

The government has published the draft Apprenticeship Targets Regulations 2017 which bring into force the government’s proposals to apply apprenticeship targets to public bodies with 250 or more workers in England. These Regulations introduce a wholly new regime in relation to the meeting of such targets.

The Regulations prescribe two distinct groups of public bodies: firstly, a group of bodies which comprise government departments and a small number of additional bodies (Group A). The second group is Group B which comprises Transport for London and those of its subsidiaries which are public bodies.

http://www.legislation.gov.uk/ukdsi/2017/9780111154991/note

Apprenticeship levy error regulations

The Finance Act 2016 Section 113(1) to (4)(Commencement) Regulations 2017 bring sections 13(1) to /94/) of the Finance Act 2016 into force. The effect is to bring into force the penalties provisions relating to errors insofar as paragraphs 1 and paras 13 and 21C of Schedule 24 relate to the apprenticeship levy.

http://www.legislation.gov.uk/uksi/2017/355/pdfs/uksi_20170355_en.pdf

Enterprise Act 2016 (Commencement No.3) Regulations 2017

These regulations bring into force (from 1 April 2017) section 25 of the Enterprise Act 2016 which provides that a person providing or offering a course or training wholly or partly in England who calls it an apprenticeship commits an offence unless it is a statutory apprenticeship.

http://www.legislation.gov.uk/uksi/2017/346/made

For more information on Apprentices please the Emplaw Online guide here

The Trade Union (Facility Time Publication Requirements) Regulations 2017

This instrument will require relevant public sector employers to publish, on an annual basis, a range of data in relation to their usage and spend on trade union facility time. The purpose of this instrument is to promote transparency and public scrutiny of facility time and, where appropriate, encourage public sector employers to moderate the amount of money spent on facility time in the light of that scrutiny. The regulations come into force on 1 April 2017.

http://www.legislation.gov.uk/uksi/2017/328/made

The Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2017

This instrument specifies that a relevant public sector employer can only make deductions from its workers’ wages in respect of trade union subscriptions (commonly referred to as “check-off”) if: the trade union pays the employer a reasonable amount for this service; and, workers have the option to pay their subscriptions by other means. The regulations are draft and are stated to be coming into force in March 2018.

http://www.legislation.gov.uk/ukdsi/2017/9780111155943

The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017

These regulations are due to come into force on 1 April 2017. Under section 43F of the Employment Rights Act 1996, whistleblowers may qualify for employment protections if they disclose information to a “prescribed person”. These Regulations specify requirements for prescribed persons to report annually on disclosures of information that they receive from workers.

http://www.legislation.gov.uk/ukdsi/2017/9780111154359

EC Consultation on whistleblowing

The European Commission has launched a public consultation on whistleblower protection. The consultation aims to collect information, views and experiences on the benefits and drawbacks of whistleblower protection; on the elements that are important for effective whistleblower protection; on problems arising both at national and EU level from gaps and weaknesses of existing whistleblower protection and from the divergences of protection across the EU, as well as on the need for minimum standards of protection. Consultation closes on 29 May 2017.

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54254

‘Check employment status for tax’ guidance

The government has published guidance on whether a worker on a specific engagement should be classed as employed or self-employed for tax purposes. This gives HMRC’s view on whether the intermediaries legislation (IR35) applies to an engagement and whether a worker should pay tax through PAYE for an engagement.

https://www.gov.uk/guidance/check-employment-status-for-tax

British Gas Trading Ltd v Lock – next steps

In October last year, the Court of Appeal upheld the EAT’s decision that results based commission payments should be included in the calculation of holiday pay for the purposes of the Working Time Regulations. This month the Supreme Court considered British Gas’s application to appeal against the Court of Appeal’s judgment, but has refused permission. The Employment Tribunal must now calculate how much holiday pay Mr Lock should receive and also what the appropriate reference period for the calculation should be. Their decision may produce some much needed guidance.

http://www.oldsquare.co.uk/news-and-media/news/supreme-court-refuses-permission-to-appeal-in-lock-v-british-gas

Article 50: implications of ‘no deal’

The Foreign Affairs select committee has published a report on the implications of a ‘no deal’ in the Brexit negotiations.

https://www.publications.parliament.uk/pa/cm201617/cmselect/cmfaff/1077/107702.htm

Government discusses workplace dress codes

The government has discussed an e-petition relating to high heels and workplace dress codes. The committee noted that few employers carry out health and safety assessments on this issue.

The Parliamentary Under Secretary of State for Women and Equalities stated that the government intends to take strong action to address sex discrimination at work, including discriminatory dress codes. The government’s response to the committee’s recommendations is expected shortly.

https://hansard.parliament.uk/commons/2017-03-06/debates/58CDA5AC-D655-43F4-BDD8-3D1370BCB076/WorkplaceDressCodes%28HighHeels%29

European Commission list of actions to advance LGBTI equality

The European Commission has published its first report on the implementation of the list of actions to advance LGBTI equality. To ensure effective implementation of the list of actions the EC encourages more cooperation between EU countries, civil society, businesses and other stakeholders and has called on them to join in the fight against discrimination on grounds of sexual orientation and gender identity.

http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=54346

CASES: 

Amey Services Ltd & Enterprise Managed Services Ltd v Aldridge & Ors [2016] UKEAT 0007/16

Rules for granting amendments to claims

Mr Aldridge and other claimants presented amendments seeking to introduce fresh claims on an alleged under-payment of holiday pay. The amendments sought to cover a period(s) during the course of the proceedings, but did not specify particular dates. At least some of the amendments were on the face of it time barred.

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Peninsula Business Service Ltd v Baker [2017] UKEAT/0241/16

No disability discrimination simply because individual asserts he is disabled

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Tees Esk & Wear Valleys NHS Foundation Trust v Harland & Ors [2017] UKEAT/0173/16

TUPE- service provision change: ‘principal purpose’

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Case Summary Tag: 

PO-8518 Mr E complaint

Employer misrepresentation induced employee to agree a start date that acted to his detriment

Mr E complained that LBG had not provided him with a preserved pension following the transfer of his contract of employment to TSB under the Transfer of Undertakings (Protection of Employment) regulations (TUPE). He claimed that he was assured he would receive membership of the Scheme but ultimately his contributions were returned, with the consequence that he lost his employer contributions for a little under three months. The Pensions Ombudsman upheld his complaint.

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Case Summary Tag: 

G4S Secure Solutions [2017] EUECJ C-157/15

Policy banning headscarves in the workplace was not direct discrimination

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Fidessa Plc v Lancaster UKEAT/0093/16

Annual leave added to maternity leave does not prevent the application of Regulation 4 Part Time Workers Regulations

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Zebrowski v Concentric Birmingham Ltd [2017] UKEAT/0245/16

The EAT allowed an appeal from an ET decision that held that Mr Zebrowski had been constructively dismissed.  The EAT held that paragraph 169 of the ET’s Judgment, in which it decided its approach to the compensation which it would award Mr Zebrowski, was ambiguous.  The ET held that there was a 60 per cent chance that Mr Zebrowski would have been dismissed after a fair procedure.  The EAT held that, in that situation, it was not open to the ET to limit Mr Zebrowski’s compensation to the losses suffered in the two months after dismissal, because the ET was not, on its own findings, 100 per

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Bougnaoui and another v Micropole SA (Case C-188/15)

The banning of a headscarf was not a genuine occupational requirement.

In this case, the following question was put to the Court of Justice for a preliminary ruling:

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