Emplaw Monthly - End of June 2017

New to Emplaw Online

The Queen's Speech and what employment specialists need to anticipate

Following the election, we published an article entitled The Tory's manifesto promises on employment law – what are they and can they be delivered?. Click here for the latest article, following the Queen's speech which explains what survived the cull and what employment specialists need to know

The Baby Elephant in the Room

An article addressing the question whether employers can and should offer statutory shared parental leave pay to fathers when they pay enhanced contractual maternity pay to mothers? 

Click here for an article by Emplaw Online authors Gowling WLG following the recent tribunal case of Ali v Capita Customer Management Limited which found that an employer directly discriminated against a male employee in only offering statutory pay if he took shared parental leave, whereas female colleagues taking maternity leave were entitled to enhanced contractual maternity pay.

‘Promoting’ restrictive covenants – the start of a new direction of travel post Egon Zehnder Ltd v Tillman

Jacques Algazy QC and Nathaniel Caiden, authors of Emplaw Online content on post termination restrictions, consider whether the case of Egon Zehnder Ltd v Tillman [2017] EWHC 1278 (Ch) (reported below) marks the start of a trend whereby restrictive covenants against employees will be increasingly upheld owing to an employer’s ‘future intention’ of the employees’ progress (that is promotions and increasing seniority).

Click here for the article

Meanwhile, you are invited to a free seminar on 29th June :

Post-Termination Restrictions: Are They Worth The Paper They Are Written On?

An invite from Emplaw Contributors Moorcrofts to a free seminar aimed at employers interested in questions such as:  Do you know what steps you can take to obtain proof that an employee may be breaching their obligations and what can you do to enforce any restrictions?

The event takes place near Marlow in the Thames Valley on 29th June 9-11:30am. To register, please click here 

New Data Protection Laws: What Employers Need to Know

With less than a year to go before the European General Data Protection Regulation (GDPR) comes into effect, Emplaw Online authors Moorcrofts take a look at the effect of Brexit  and explain the key differences from the current  data protection regime in the contect of the employer/employee relationship.

Click here for the article 

Focus on Emplaw Online content

Confused by shared parental leave and pay? It is complicated but our law card on Shared Parental Leave and Pay will help!  

For the full list of our cards on Maternity & Parental Rights, Flexible Working please click here. Full content is available to Emplaw Online subscribers only

Employment Law News

MoJ publishes ET quarterly statistics January-March 2017

The Ministry of Justice has published quarterly statistics for ET claims in the period January-March 2017. In that period and compared to the same quarter in 2016, single ET claims increased by 4% and the total number of multiple claims increased by 7%.

28% of the cases disposed of were conciliated by Acas, 11% were withdrawn and 8% succeeded at hearing.

https://www.gov.uk/government/statistics/tribunals-and-gender-recognitions-certificates-statistics-quarterly-january-to-march-2017-and-2016-to-2017

Dads' rights

According to a  report from the TUC  a quarter of  the  625000 new fathers in 2016 did not qualify for the up to two weeks’ statutory paternity leave and statutory paternity pay.

The main reason is that they were self-employed or  because they hadn’t been working for their employer for long enough.  Also many low-paid fathers struggle to take the time off because statutory paternity pay is £140.98 a week ( less than half what someone over 25 earning the minimum wage would earn over a 40-hour week (£300)).

Against this backcloth, the TUC is calling on the  government  to give new fathers:

1.  A right to statutory paternity leave for all workers from day one in the job.

2.  Increased paternity pay. The TUC wants the government to increase statutory paternity pay to at least minimum wage levels.

3.  A paternity allowance for dads who are not eligible for statutory paternity pay. This would be similar to the maternity allowance which self-employed mothers and mothers who haven’t been with their employers long enough can claim.

4.  Dedicated leave for dads. An additional month of well-paid parental leave  reserved for fathers only.

https://www.tuc.org.uk/equality-issues/quarter-new-dads-are-missing-out-paternity-leave-and-pay-says-tuc

Meanwhile in Mr M Ali vs Customer Management Limited ET/1800990/2016 an employment tribunal has decided that it is direct sex discrimination not to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay.  A different view was taken last year in Hextall v Chief Constable of Leicestershire Police ET/2601223/15 an employee’s claims of both direct and indirect sex discrimination were rejected. Both this case and M Ali vs Customer Management Limited are apparently being appealed.

European Commission Interpretative Communication on working time

The European Commission has published a non-binding interpretative communication on Directive 2003/88/EC concerning the organisation of working time. The very detailed communication which reviews the current EU case law, follows the report issued after the December 2014 European Commission consultation in relation to a review of the Working Time Directive. The report found that 'a majority of trade unions and several employers' organisations opposed a general revision of the Directive at present, despite explicit dissatisfaction with the current rules on both sides'. It concluded that the best course was 'to provide clarification and strengthen implementation of the existing Directive through an Interpretative Communication'.

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0524(01)&from=EN

News Queen’s Speech – the pared down version

The Conservative manifesto as originally published was pared down to the bone for the Queen’s Speech on 21 June. Gone were the controversial proposals on social care, grammar schools and a fox-hunting bill.

For employment lawyers, the relevant parts of the Queen’s Speech related to Brexit. The Great Repeal Bill has dropped the ‘Great’ and is now the ‘Repeal Bill’ which will repeal the European Communities Act 1972 and create temporary powers for Parliament to make secondary legislation to enable corrections and allow changes to domestic laws.

There will also be legislation on immigration to repeal the EU law on immigration and to allow the government to make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.

See more information in our article The Queen's Speech and what employment specialists need to anticipate

https://www.gov.uk/government/speeches/queens-speech-2017

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/620838/Queens_speech_2017_background_notes.pdf

 

Insecure work

GMB research reveals that up to 10 million Britons (a third of the workforce) do not have secure employment. The data is based on a survey of 3500 people of working age.

The TUC has also published a report in June 2017 on insecure work and ethnicity. The analysis shows that black and minority ethnic groups are persistently disadvantaged in the labour market.

http://www.gmb.org.uk/newsroom/millions-insecure-work

https://www.tuc.org.uk/sites/default/files/Insecure%20work%20and%20ethnicity_0.pdf

Brexit

EU and UK working papers on Brexit

On 29 May 2017 the European Commission published two draft working papers which form the starting point of on the EU’s negotiating position on Brexit.

https://ec.europa.eu/commission/sites/beta-political/files/citizens-rights-essential-principles-draft-position-paper_en.pdf

https://ec.europa.eu/commission/sites/beta-political/files/financial-settlement-essential-principles-draft-position-paper_en.pdf

The UK government’s policy papers including that issued on 26th June about Safeguarding the position of EU citizens in the UK and UK nationals in the EU are published here

‘Silver quota’

Co-op, Boots and Barclays are among the first firms to introduce a ‘silver quota’ – they have agreed to increase the number of older workers they employ by 12% before 2022. Eight major companies have signed up to a pledge to publish age data of their employees as part of a government initiative to secure an extra one million roles for older workers over the next five years.

http://www.telegraph.co.uk/news/2017/05/23/co-op-boots-barclays-among-first-firms-introduce-silver-quota/

ICO fines council £100,000

The Information Commissioner’s Office has fined a council £100,000 after a cyber attacker accessed council employees’ sensitive personal information.

https://ico.org.uk/action-weve-taken/enforcement/gloucester-city-council/

For details of other fines and enforcement notices click here

Report on EC proposal for a Directive improving gender balance among directors of listed companies

The EC has published a progress report on the EC proposal for a Directive improving gender balance among directors of listed companies. A number of delegates still prefer national measures and more work is required.

http://data.consilium.europa.eu/doc/document/ST-9496-2017-INIT/en/pdf

CASES: 

Green v SIG Trading Ltd UKEAT/0282/16

Jurisdiction of the ET – significance of written contract

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Case Summary Tag: 

Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401

Dismissal for making a disclosure –the question whether that disclosure was protected falls to be determined objectively by the tribunal

Dr Beatt was a consultant cardiologist employed by Croydon Health Services NHS Trust at Croydon University Hospital. He brought claims for unfair dismissal and under the whistleblowing legislation. An ET held that he had been unfairly dismissed and subjected to various whistleblowing detriments. The EAT allowed the Trust’s appeal and Dr Beatt appealed.

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Hartley and others v King Edward VI College 2017 [UKSC] 39

Calculating pay deductions for lawful industrial action

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Egon Zehnder Ltd v Tillman [2017] EWHC 1278

Promotion and post-termination restraints 

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Charlesworth v Dransfields Engineering Services Ltd [2017] UKEAT/0197/16

Discrimination arising from disability -absence related to disability not the cause of the dismissal

This case concerns an appeal against a decision that the selection of Mr Charlesworth for redundancy was not because of his disability and did not amount to direct disability discrimination. Nor was there unlawful discrimination arising from disability. The ET also ruled that the dismissal was fair. The appeal was concerned with the decision that there was no unlawful discrimination arising from disability.

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Elmore v the Governors of Darland High School and Wrexham County Borough Council UKEAT/0209/16

No unfair dismissal despite absence of member of appeal panel at hearing

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Case Summary Tag: 

King v Sash Window Workshop C-214/16

A worker unable to take annual leave because he was wrongly classed as self-employed (not a worker or employee) can make backdated claim for holiday

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