Emplaw Monthly - End of Summer 2017

New to Emplaw Online

Invitation to free employment law conferences in Nottingham, Birmingham and London

Emplaw Online authors Shakespeare Martineau invite HR professionals and senior managers with HR responsibility/awareness to conferences on Employing a workforce fit for a global future. Content will include a round up of key recent cases impacting on HR practice as well as optional workshops on

Brexit and Immigration
Modern Ways of Working aka “Gig Economy”
Performance Management
Managing Absence

Click here for more information

Voluntary Overtime and Holiday Pay

Emplaw Online author, Nathaniel Caiden, considers the recent EAT judgment in Dudley MBC v Willetts UKEAT/0334/16/JOJ concerning the inclusion of voluntary overtime normally worked in calculating holiday pay

Click here for the blog

Supreme Court ruling that employment tribunal fees unlawful – what does it mean for employers?

Click here for an article by Emplaw Online authors, Gowling WLG which considers questions such as: What about fees already paid?: Are fees gone forever?: Will tribunals allow late claims?

See also our up-to- date item in the News section

An international recruiter’s dilemma

Click here for an article from Emplaw Online on how to avoid discrimination whilst running an efficient recruitment process attracting applicants from around the world

Focus on Emplaw Online content

Recruitment generally rises after the summer break and,as well as the article above, we have a series of useful guides from excellent law firm Ortolan Legal including Recruitment/key card - an overview of matters to consider in the recruitment process. For the full list of our cards on Recruitment click here

Following last month's decision in Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (25022)  reminding us that suspension is not necessarily a neutral act, our guide on Disciplinary Procedures from leading law firm Goodman Derrick is an essential read. For the full list of our cards on Rights at Work please click here

Full content is available to Emplaw Online subscribers only.

Employment Law News

Tribunal Fees - Stay on claims lifted and update on fee reimbursement

On 18th August 2017, the President of the Employment Tribunal in England & Wales and the President of the Employment Tribunal in Scotland  issued case management orders to lift with immediate effect the stay which had been imposed on tribunal applications in reliance on this decision and confirming that all applications for reimbursement of fees and reinstatement of claims rejected or dismissed for non-payment of fees will need to be  made in accordance with administrative arrangements to be announced by the Ministry of Justice. The order for England and Wales is at https://www.judiciary.gov.uk/wp-content/uploads/2015/03/case-management-order-no-131-president-employment-tribunals-e-and-w-re-unison-2-20170818.pdf and for Scotland is at https://www.judiciary.gov.uk/wp-content/uploads/2015/03/case-management-order-no-131-president-employment-tribunals-scotland-re-unison-2-20170818.pdf

Investigation into gender stereotyping in adverts

After a year-long inquiry the Advertising Standards Authority (ASA) has completed an igender stereotyping in UK adverts.

The ASA notes that given the diversity of beliefs a balance needs to be struck and that the importance of freedom of expression must be respected. Its focus is on gender stereotypes that, whether by depiction of roles or characteristics, invite the audience to make assumptions about their perceptions of themselves as well as question the opinions of others. An example given by the ASA is where a woman may be given sole responsibility for cleaning the family home. Many adverts have already attracted negative attention for gender-related issues.

https://www.asa.org.uk/news/report-signals-tougher-standards-on-harmful-gender-stereotypes-in-ads.html

Rise in state pension age review

The government has published the state pension age review, proposing a rise in the state pension age from 67 to 68 in 2037/39, bringing it forward by seven years. The change will affect those born between 6 April 1970 and 5 April 1978.The review follows the timetable set out by John Cridland CBE but the government commits to carrying out a further review before legislating to introduce the rise to 68 to enable consideration of the latest life expectancy projections

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630065/state-pension-age-review-final-report.pdf

Bereavement Bill introduced

The government has introduced a Bereavement (Pay and Leave) Bill which proposes giving statutory paid leave to grieve to employed parents who have lost a child.

https://www.gov.uk/government/news/parental-bereavement-pay-and-leave-bill-introduced-today

The Repeal Bill: factsheet on workers’ rights

The government has published a factsheet on workers’ rights in the context of exiting the European Union. The government notes that in a number of areas, UK employment law already goes further than the minimum standards set out in EU legislation and the government has committed to protect and enhance the rights people have at work as the UK leaves the EU.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/627997/Workers__rights_factsheet.pdf

New principles for assessing pension loss in tribunals

The ET presidents have published new principles on pension loss compensation in tribunals, together with associated presidential guidance. .

https://www.judiciary.gov.uk/publications/employment-rules-and-legislation-practice-directions/

https://www.judiciary.gov.uk/wp-content/uploads/2015/03/principles-for-compensating-pension-loss-20170810.pdf

Vento bands increased

The ET Presidents have released a Joint Response following last month's consultation on the Vento bands (compensation for injury to feelings awards, as distinct from compensation awards for psychiatric or similar personal injury) as identified in the case Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871, The response provides that the bands should be as folows:

  • a lower band of £800 to £8,400 (less serious cases);
  • a middle band of £8,400 to £25,200 (cases that did not merit an award in the upper band); and
  • an upper band of £25,200 to £42,000 (the most serious cases), with the most exceptional cases capable of exceeding £42,000.

Joint Presidential Guidance is being issued to take effect from 11 September 2017. 

https://www.judiciary.gov.uk/wp-content/uploads/2017/07/vento-consultation-response-20170904.pdf

UK data protection laws - repeal of DPA 1998

The government has published a statement of intent, committing it to updating and strengthening data protection laws through a new Data Protection Bill. The Bill will update current provisions and hence repeal the current Data Protection Act 1998  and incorporate the  European General Data Protection Regulations (GDPR) which were agreed last year and come into force in  May 2018,   

Under the plans individuals will have more control over their data by having the right to be forgotten and ask for their personal data to be erased. This will also mean that people can ask social media channels to delete information they posted in their childhood.

https://www.gov.uk/government/news/government-to-strengthen-uk-data-protection-law

https://www.gov.uk/government/consultations/general-data-protection-regulation-call-for-views

Information Commissioner’s Office 'myth-busting' blog

Elizabeth Denham, the Information Commissioner has launched a useful series of blogs on consent, guidance, the burden on business and breach reporting..

https://iconewsblog.org.uk/2017/08/09/gdpr-sorting-the-fact-from-the-fiction/

Acas guidance on supporting trans employees in the workplace

Acas has published a new research paper on supporting trans and intersex employees in the workplace. It is published as part of the suite of information from Acas to increase understanding of gender reassignment discrimination in the workplace and setting out best practice for employers and colleagues to also support employees with non-binary identities.

http://www.acas.org.uk/index.aspx?articleid=2064

Corporate governance reform- proposals published

Government has published the outcome of the Consultation on Corporate governance reform

Proposals include changes to the UK Corporate Governance Code and also introducing regulations

  • to require quoted companies to report annually the ratio of CEO pay to the average pay of their UK workforce; and
  • to require companies of 'significant size' to explain how their directors comply with the requirements of section 172 of the Companies Act 2006 (to have regard to employee and other interests in promoting the success of the company)

The current intention is to bring the reforms into effect by June 2018 to apply to company reporting years commencing on or after that date.

https://www.gov.uk/government/consultations/corporate-governance-reform

Consultation on extending senior managers and certification regime to all FSMA authorised firms

The FCA and the PRA have published consultation papers proposing to extend the senior managers and certification regime to all firms authorised under the Financial Services and Markets Act 2000. Consultation closes on 2 November 2017 with policy papers expected in early 2018. A date will be set by HM Treasury for implementation in 2018.

https://www.fca.org.uk/publication/consultation/cp17-25.pdf

https://www.fca.org.uk/publication/consultation/cp17-26.pdf

http://www.bankofengland.co.uk/pra/Documents/publications/cp/2017/cp1417.pdf

EHRC strategy to reduce pay gaps

The Equality and Human Rights Commission has published its strategy on what needs to change and who needs to take action to reduce gender, ethnicity and disability pay gaps. The recommendations are based on new evidence from EHRC research into the size and causes of these pay gaps, and whether interventions so far have been successful.

https://www.equalityhumanrights.com/en/publication-download/fair-opportunities-all-strategy-reduce-pay-gaps-britain

CASES: 

Kleinsteuber [2017] EUECJ C-354/16

No discrimination against part-timers for split pension formula

This reference for a preliminary ruling concerns the interpretation of Clause 4.1 and 4.2 of the Framework Agreement on part-time work, concluded on 6 June 1997 (‘the Framework Agreement’).

Clause 4.1 to 4.4 of the Framework Agreement provides:

‘Clause 4: Principle of non-discrimination

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International Petroleum Ltd & Ors v Osipov & Ors [2017] UKEAT 0058/17

NEDs jointly and severally liable for detriments amounting to dismissal for protected disclosures

Mr Osipov was employed by International Petroleum, a gas and exploration company, until his dismissal in 2014. After starting a role as CEO of International Petroleum he made a number of protected disclosures related to the company’s oil exploration in Niger and further detriments attributed to two non-executive directors.

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Abercrombie & Fitch Italia [2017] EUECJ C-143/16

No age discrimination for offering zero hours contracts on age restrictions designed to give young people access to labour market

Article 1 of Directive 2000/78 (the Framework Directive) states that its purpose is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Article 2 provides: 

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OCS Group UK Ltd v Dadi & Ors [2017] EWHC 1727

Imprisonment for former employee in contempt of court  for breach of confidential information order

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Case Summary Tag: 

Williams v The Trustees of Swansea University Pension & Assurance Scheme & Anor [2017] EWCA Civ 1008

No disability discrimination under terms of pension scheme

Section 15 (1) of the Equality Act 2010 provides that –

"A person (A) discriminates against a disabled person (B) if-

a) A treats B unfavourably because of something arising in consequence of B's disability, and

b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."

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Dudley Metropolitan Borough Council v Willetts & Ors [2017] UKEAT 0334/16

Voluntary overtime was part of normal remuneration for purpose of calculating holiday pay under Regulation 13 of Working Time Regulations

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Ville de Nivelle v Matzak Case C-518/15

A-G’s opinion on working time re retained firefighter’s stand by duties- Directive definition of ‘working time’ does not automatically regulate pay and whether stand-by time included depends on quality of time not proximity to employer’s workplace

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Chard v Trowbridge Office Cleaning Services Ltd [2017] UKEAT 0254/16

Naming wrong respondent on early conciliation certificate was ‘minor error’ insufficient to lose right to bring claim

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Gascoigne v Addison Lee Ltd [2017] UKET 2200436/2016

Addison Lee cycle courier was ‘limb b worker’ under WTR and entitled to holiday pay.

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BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188

Courts must consider divisibility of harm in sex discrimination complaint such that employer’s wrongdoing can be identified

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Agoreyo v London Borough of Lambeth [2017] EWHC 2019

Suspension not a neutral act in some types of employment and can be breach of contract by employer

The view of the courts is that suspension is not a neutral act. In Mezey v South West London and St George's Mental Health NHS Trust the Court of Appeal held that suspension was not a neutral act, at least in relation to the employment of a qualified professional which is as much a vocation as a job.

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Case Summary Tag: 

Efobi v Royal Mail Group Ltd [2017] UKEAT 0203/16

Discrimination and burden of proof

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Trayhorn v The Secretary of State for Justice [2017] UKEAT 0304/16

No indirect discrimination for final warning for quoting homophobic comments from Bible

This case concerns a claim of indirect discrimination.

EqA section 19 provides:

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

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UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51

Supreme Court rules ET fees are unlawful

The Supreme Court quashed the exisitng system for fees for employment tribunal claims on the grounds that the system is unlawful. This decision overturned two High Court decisions and a Court of Appeal judgment. The Supreme Court decided that the government acted outside its powers when it introduced fees at existing levels, because the fees effectively prevent access to justice and also indirectly discriminate against women.

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Tillman v Egon Zehnder Ltd [2017] EWCA Civ 1054

Non compete clause that prohibited interests in shares and securities was unenforceable

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Case Summary Tag: