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Emplaw Monthly - End of April 2017

New to Emplaw Online

For our subscribers with an interest in the corporate world, we published the following articles this month:

The regulatory reference regime:final rules

Click here for an explanation of the regulatory reference regime,final rules in place from 7th March 2017 including a useful summary of the Points to Note.

BEIS report on corporate governance

Click here for a detailed summary of the BEIS report published this month on corporate governance

30 second summary of BEIS recommendations for corporate governance reform

For those who don't need so much detail we published this 30 second summary of the recommendations in the BEIS report and its relationship with the Green Paper on corporate governance. 

Of more general interest we published:

30 second summary of the Great Repeal Bill for employment specialists

Click here for the article posted after publication of the Government White Paper

Focus on Emplaw Online content

Following the coming into force last month of most of the Trade Union Act 2016, our content in the sections on Trade Unions and Consultation with Employees has been reviewed and upgraded by leading law firm Lewis Silkin

Click here for the full list of Trade Union related law cards.

Click here for the Consultation with Employee law cards authored by Vince Toman of Lewis Silkin.

Employment Law News


European Scrutiny Committee report

The House of Commons European Scrutiny committee report states that the government must continue to consider EU proposals over the next two years, even though the UK is about to leave the EU.

Institute for Government: Legislating Brexit

The Institute for Government has published a report ‘Legislating Brexit: the Great Repeal Bill and the wider legislative challenge’. The report argues argue that the Government needs to avoid the risks associated with too little parliamentary scrutiny of Brexit, namely: failure to identify unforeseen problems with proposed legislation and a lack of democratic legitimacy for the replacement regimes that the government introduces.

As reported last month, the government published a White paper on The Great Repeal Bill. on 30th March as well as  Guidance for businesses on the Great Repeal Bill

Leaving the EU: World Trade Organisation

The House of Lords library has published a briefing on how the UK would trade with the EU under WTO terms if the UK left the EU without a deal.

Consultation on regulations on protected disclosures in the NHS

The government has launched a consultation on draft regulations to protect against discrimination of those who make protected disclosures in the NHS. Section 49B ERA (inserted by section 149 of the Small, Business, Enterprise and Employment Act 2015) aims to address such discrimination and provides the Secretary of State with a power, through regulations, to prohibit certain NHS public bodies from discriminating against an applicant because it appears to the NHS employer that the applicant has previously made a protected disclosure. Consultation on the draft regulations ends on 12 May 2017.

For subscribers, Emplaw Online provides more information on Whistleblowing, drafted by Goodman Derrick here 

Policy paper on Improving lives: Helping Workless Families

Following on from the Work, health and disability green paper: improving lives (Nov 2016) and Dame Carol Black's review into the effects on employment outcomes of drug or alcohol addiction and obesity(Dec 2016), the government has issued a policy paper entitled Improving lives: Helping Workless Families . The paper sets out proposals which are aimed at improving ‘outcomes for children who grow up in workless families and face multiple disadvantages’. Proposals include:

·         Improving Employment and Support Allowance Work-Related Activity Group (ESA WRAG) claimants’ access to the range of employment and other support available to them.

·         Bringing forward a trial of the Individual and Placement Support approach to support those dependent on drugs and alcohol back into employment and building up a network of peer mentors, to act as advocates and role models to help those dependent on drugs and alcohol to move towards or into work.

·         Expanding eligibility for the Access to Work fund so that it provides drug and alcohol dependent people who are on a treatment programme with support to enter or continue in work. 

Caste in Great Britain and equality law: a public consultation

The government has published a consultation paper on whether legal protection against caste discrimination is best ensured by

·         developing case-law under the Equality Act 2010 (as per the example of Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912 where the EAT found that caste could conceivably fall under the current definition of race in certain circumstances where part of another protected characteristic (in that case ethnic origin): or

·         by making caste explicitly an aspect of race in the Act. Currently Section 9 of The Equality Act 2010 section 9(5) provides that the government must amend that section (entitled ‘Race’) "so as to provide for caste to be an aspect of race. The consultation addresses the difficulty in the definition of caste and makes it clear that the government does not aim to provide a definitive view.

The consultation runs for 16 weeks and closes on 18 July 2017.

Statement of changes to immigration rules

The government has published a statement of changes to the immigration rules. The changes include updating the codes of practice relating to skilled workers; providing that a tier 2 application will be refused if the immigration skills charge is not paid; clarifying that applications for visit visa must be made to a post designated to accept such applications.

Welsh Committee rejects parts of the Trade Union Act

A Welsh Assembly committee has backed proposals by the devolved government to reject parts of the Trade Union Act 2016 as it pertains to the Welsh public sector.

Commons select committee: fathers and workplace inquiry

The Women and Equalities select committee has heard evidence from employers such as the CBI, NHS, Network Rail, into the treatment of fathers in the workplace. The inquiry follows findings that sharing care between fathers and mothers is the key to reducing the Gender Pay Gap and British men spend 24 minutes caring for children, for every hour done by women.

Pensions regulator guidance on auto enrolment

The pensions regulator has updated its detailed guidance on auto-enrolment. The guidance is aimed at professional advisors, large employers with in-house pensions expertise and those with a good knowledge of pensions.

BEIS report on corporate governance

The Business, Energy and Industrial Strategy Committee has published a report on corporate governance. It notes that the changing ownership structure of British business in a globalised economy has contributed to increased pressures on companies to deliver short-term financial gains for shareholders, rather than invest for their long-term benefit. It highlights a worrying lack of trust in business by the general public which has been fuelled by recent high profile examples of bad practice, as well as pay levels being ratcheted up to levels so high that it is impossible to see a credible link between remuneration and performance. The report recommends that the existing framework be improved to keep the UK in the lead globally on corporate governance and makes specific recommendations.

Click here for the Emplaw Online article giving a detailed summary of the BEIS report.


Born London Ltd v Spire Production Services Ltd [2017] UKEAT 0255/16/2803

Incorrect statement about bonus was not a breach of Regulation 11 TUPE

In this case, Born had taken over a contract from Spire in circumstances that amounted to a service provision change for TUPE purposes.  In providing information to Born prior to the transfer, Spire had stated that a non-contractual Christmas bonus was in place.  Born contended that this was wrong: in fact the bonus was contractual in nature and Spire had given incorrect employee liability information for the purposes of regulation 11 TUPE. 

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Case Summary Tag: 

Newcastle Upon Tyne NHS Foundation Trust v Haywood [2017] EWCA Civ 153

Notice takes effect on personal delivery of letter

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Adeshina v St. George's University Hospitals NHS Foundation Trust & Ors [2017] EWCA Civ 257

No procedural unfairness as appeal panel did not increase disciplinary sanction nor make more serious findings

Ms Adeshina was a pharmacist working in HM Prison Service as Principal Pharmacist at Wandsworth Prison, employed by the St. George's University Hospitals NHS Foundation Trust ("the Trust"). She described her ethnicity as black African.

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Case Summary Tag: 

Agarwell v Cardiff University and another [2017] UKEAT/0210

ET has no jurisdiction to construe terms of contract under section 13 ERA claim

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Essop & Ors v Home Office (UK Border Agency) / Naeem v Secretary of State for Justice[2017] UKSC 27

Two cases about indirect discrimination on grounds of race and/or age and/or religion.

Essop case

Mr Essop, an immigration officer employed since 1995, was the lead appellant in a group of 49 people employed by the Home Office. The relevant “provision, criterion or practice” (PCP) in this case was the requirement to pass a Core Skills Assessment (CSA) as a pre-requisite to promotion.

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Commissioners for HMRC v Garau UKEAT/2017/0348

Acas cannot issue more than one EC certificate per matter

The EAT in Commissioners for HMRC v Garau held that the early conciliation provisions introduced from 6 April 2014 do not allow for more than one certificate per ‘matter’ to be issued by ACAS. If more than one such certificate is issued, a second or subsequent certificate is outside the statutory scheme and has no impact on the limitation period.

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