Emplaw Monthly - End of July 2017

New to Emplaw Online

Matthew Taylor Review

As employment specialists knew, it was never going to be simple... The outcome of the review has been published and there have been various headlines suggesting business groups have been generally positive, and unions and employment lawyers less so. Why is this? Click here for an article from Emplaw Online which takes an in-depth view of the key points. 

Working Time and Contractual Holiday - the cases and the law in a nutshell

With the holiday season upon us, this article, updated following the latest case law and the outcome of the Taylor review, provides a straight forward summary of the up to date law and the key cases on holiday entitlements. It examines the issues around carry over, including cases involving long term sickness and family leave and also how holiday pay is calculated. Click here

Podcast on how to write a workplace dress code

How far can an employer go in specifying how employees present at work, while staying within the law?

Click here for a five minute podcast from Emplaw Online authors Gowling WLG, giving an overview of the main points for employers to watch out for when designing their workplace dress codes. 

Focus on Emplaw Online content

Contracts of employment- essential and clearly explained information in cards from Moorcrofts LLP including what should be included in the Written Statement of Employment Particulars and all you need to know about giving notice and rights during notice periods in Contracts of Employment/Notice of Termination

For the full list of our cards on Contracts of Employment please click here. Full content is available to Emplaw Online subscribers only

Employment Law News

Equality Act at legislation.gov.uk is now the up-to-date version

Useful for practitioners, you can now click here for the Equality Act updated with all changes known to be in force as at July 2017.

As we reported in Emplaw Monthly for March the Employment Rights Act 1996 is also now being kept up to date at legislation.gov.uk

Caste Discrimination

As a result of the General Election, the government has extended its public consultation on caste discrimination, with a closing date of 18 September 2017. The issue is whether caste should be an aspect of race in the Equality Act and would be achieved by amending the Equality Act. The consultation invites views from all those potentially affected by a legal prohibition against caste discrimination

https://www.gov.uk/government/consultations/caste-in-great-britain-and-equality-law-a-public-consulation#history

Welsh Assembly Bill to reverse the Trade Union Act 2016

The National Assembly for Wales has passed a Bill which dis-applies parts of the Act that relate to public services.

This overall support threshold of 40% on strike ballots, provisions on trade union facility time and conditions on payroll deductions for trade union membership will no longer apply to Wales.

The Bill also protects the position where agency workers are prevented from covering the work of public sector employees during industrial action, in the event the UK Government acts to remove that protection.

The Bill was passed on 18th July 2017 and then entered a four week period (19 July 2017 – 15 August 2017) during which, the Counsel General or the Attorney General may refer the question whether the Bill, or any provision of the Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision (section 112 of the Government of Wales Act). Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.

Certainly, the passing of the Bill was not received well by the government in Westminster . The Secretary of State for Wales, Alun Cairns has said "The UK government has always maintained that industrial relations are a reserved matter, and we will act at the earliest opportunity, following commencement of the Wales Act, to ensure the legislation protects the interest of taxpayers and our public services in Wales."

Armed Forces (Flexible Working) Bill 2017

A Bill has been introduced to make provision for members of the regular forces to serve part-time or subject to geographic restrictions.

Parental Bereavement (Pay and Leave) Bill

The parental bereavement (pay and leave) bill, has been introduced in parliament to give employed parents a statutory right to paid time off to grieve on the death of a child.

Currently time off in such circumstances has been limited to the right, under the Employment Rights Act,  to take a ‘reasonable’ amount of unpaid time off work to deal with an emergency involving a dependant, including making arrangements following the death of a dependant.

"Good work: the Taylor Review of Modern Working Practices"

Readers will no doubt have noticed the publication of this review and the various commentaries. Emplaw Online has published an article taking an in-depth view of the key points

Meanwhile Acas has published an analysis of helpline calls on zero hours, agency, self-employment and gig economy working.

Acas has found that ‘there is some evidence that the majority engage in atypical arrangements because it suits their individual needs and circumstances, but that a significant and growing minority only do so because they cannot find a job offering a ‘traditional’ contract’. The analysis indicates that lack of clarity around employment status impacts on people’s ability to resolve concerns satisfactorily in the workplace.

Women in Finance Charter

The government has published an updated list of Women in Finance Charter signatories (July 2017) and the latest analysis by New Financial (a think tank) of signatory data for the Charter.of signatory data for the Charter.

The key comment is that two thirds of signatories believe that signing up will lead to permanent and sustainable change within their companies and across the financial services industry.

Nearly 70% of signatories are considering extending the Charter principles to other diversity characteristics and nearly half said the Charter has prompted them to take specific actions in their approach to non-gender diversity.

https://www.gov.uk/government/publications/women-in-finance-charter

ICO policies updated

The Information Commissioner’s Office has updated the Subject Access Code of Practice to reflect the recent decision in Dawson-Damer v Taylor Wessing [2017] and Ittahadieh v Cheyne Gardens RETM Co Ltd [2017] with regard to disproportionate effort (i.e. the provision in section 8 (2) of the Data Protection Act that it is not necessary to supply a copy of the relevant information in permanent form if to do so would involve disproportionate effort) and consequent minor changes have also been made to the Data Protection Guide and CCTV code of practice.

Useful updated sections in the Subject Access Code include (page44)

‘In order to apply the exception, the burden of proof is on you as

data controller to show that you have taken all reasonable steps to

comply with the SAR, and that it would be disproportionate in all the

circumstances of the case for you to take further steps’.

https://ico.org.uk/media/for-organisations/documents/2014223/subject-access-code-of-practice.pdf

A summary of the changes are found at 

https://iconewsblog.wordpress.com/2017/07/05/subject-access-policy-updated-after-court-rulings-on-disproportionate-effort/

European Commission publishes Brexit position papers

The European Commission has published six position papers on Brexit on:

· On-going Union Judicial and Administrative Procedures

· Judicial Co-operation in Civil and Commercial Matters

· Goods placed on the Market under Union law before the withdrawal date

· Governance

· Issues relating to the Functioning of the Union Institutions, Agencies and Bodies

· On-going Police and Judicial Co-operation in Criminal matters

https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-ongoing-union-judicial-and-administrative-procedures_en

https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-judicial-cooperation-civil-and-commercial-matters_en

https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-goods-placed-market-under-union-law-withdrawal-date_en

https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-issues-relating-functioning-union-institutions-agencies-and-bodies_en

https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-governance_en

https://ec.europa.eu/commission/publications/position-paper-transmitted-eu27-ongoing-police-and-judicial-cooperation-criminal-matters_en

https://ec.europa.eu/commission/brexit-negotiations/negotiating-documents-article-50-negotiations-united-kingdom_en

Brexit: the talks begin

The House of Commons Library has published a briefing paper  ‘Brexit: let the talks begin’. The paper considers the first stages of negotiation.

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8017

CASES: 

Giny v SNA Transport UKEAT/0317/16

Error in putting individual’s name as respondent in early conciliation form was not ‘trivial’

The Employment Tribunal Rules (ET Rules) 2013 make provision for the rejection of a claim in Rule 12(2A) where:

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Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 314

Court of Appeal gives guidance on what is ‘in the public interest’ in whistleblowing claims

In 2013 the requirement that a whistleblowing disclosure be made in good faith was dropped and instead section 43B(1) of the Employment  Rights Act 1996 was amended so that only disclosures which an individual reasonably believes are in the public interest can be the subject of a qualifying disclosure. The issue of what is in the public interest has been the subject of contentious case law.

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Case Summary Tag: 

Walker v Innospec Limited [2017] UKSC 47

Gay man entitled to leave pension to his husband

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Federatie Nederlanse Vakvereniging and others v Smallsteps BV Case C-126/16

Acquired Rights Directive applies to a pre-pack sale

This case concerns the applicability of the Acquired Rights Directive in the context of a pre-pack sale.

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Maio Marques da Rosa v Varsim Sol-Turismo C 306/16

Advocate General Opinion on timing of the weekly rest period

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Swissport Ltd v Exley & Ors (Transfer of Undertakings) [2017] UKEAT 0007/16

ET has discretion to make period costs award

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Fries v Lufthansa CityLine GmbH EUECJ/2017/C119016

Age requirement on pilots was not contrary to EU Charter of Fundamental Rights

This case concerned whether EU Commission Regulation 1178/2011 is compatible with the EU Charter of Fundamental Rights.

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Seahorse Maritime Limited v Nautilus UKEAT/0821/16

TUPE and jurisdiction

This case concerned what is a ‘separate establishment’ for the purposes of section 188 Trade Union and Labour relations (Consolidation) Act 1992 (collective consultation for redundancy purposes) and whether a tribunal had jurisdiction to hear a claim where most of Sealion’s ships were located outside the UK.

Section 188 provides that employers must inform and collectively consult where there are 20 or more redundancies at one establishment within 90 days or less.

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Case Summary Tag: