Emplaw Monthly - End of September 2017

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Spying at work: Has the European Court of Human Rights really struck a blow for employees?

Media speculation that employers can no longer monitor the communications of their employees is inaccurate. Emplaw Online author Siân McKinley comments on the recent judgment of Barbulescu v Romania and provides some practical points on how to avoid breaches of Article 8 in the workplace.
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Trade Union Act 2016 and Trade Union (Wales) Act 2017

We published our summary guide to the Trade Union Act 2016, updated to include The Trade Union (Wales) Act. This came into force on 13th September and excludes certain provisions of the Trade Union Act 2016, from applying to 'devolved Welsh authorities' including the 40% threshold of support from members required for industrial action to be legal in important public services.
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For the full list of Emplaw Online summary guides to recent legislation click here. Full content available to Emplaw Online subscribers only

NEWS

General Data Protection Bill published

The Government has published the Data Protection Bill which has had its first reading in the House of Lords. The Bill sets out data protection reforms aimed at ensuring the UK is in line with the EU General Data Protection Regulation (GDPR). The Bill will replace the Data Protection Act 1998.

The Bill aligns itself with the GDPR, which means that for employers the GDPR will be enshrined in UK data protection law, irrespective of Brexit. The GDPR imposes substantial new obligations on organisations that process EU individuals’ personal data on behalf of other organisations for routine business functions.

The Information Commissioner’s Office is consulting on draft guidance on contracts and liabilities between controllers and processors under the GDPR. This draft guidance includes practical guidance for UK companies.

The ICO's Overview of the General Data Protection Regulation (GDPR) is a useful, evolving document and includes updates on what has been published when.

Returning to work after a career break – GEO consultation and online response form 

The Government Equalities Office (GEO) has issued a call for evidence about Returning to work after time out for caring . The purpose is to understand more about the specific barriers returners face in getting back to work, actions that are already in place to support returners and what the government can do to support employers in offering opportunities to returners.

There is an online form for responses at https://consult.education.gov.uk/government-equalities-office/returning-to-work-after-time-out-for-caring/

Acas report on Flexible Working for Parents and Carers Returning to Work

Meanwhile Acas has published a research paper on Flexible Working for Parents and Carers Returning to Work which includes a series of case studies with organisations offering best practice in managing flexible working arrangements.

http://www.acas.org.uk/media/pdf/k/7/Flexible-working-for-parents-returning-to-work-maintaining-career-development.pdf

Acas guidance for parents with premature or sick babies

Acas has published advice for parents with premature or sick babies, including returning to work and making requests for additional appointments following discharge from hospital.

http://www.acas.org.uk/index.aspx?articleid=6049

Presidential guidance on the statutory appeal procedure

The Employment Tribunal Presidents for England & Wales and Scotland have issued a Joint Presidential Guidance on making statutory appeals under section 37G of the Employment Tribunals Act 1996 (that is appeals against financial penalties such as a notice of underpayment issued under section 19 of the National Minimum Wage Act 1998 and financial penalties for failure to pay sums ordered by the ET to be paid or settlement sums).

The guidance includes recommended but non mandatory Notice of Appeal forms

https://www.judiciary.gov.uk/wp-content/uploads/2015/03/presidential-guidance-statutory-appeals-20170911.pdf

Termination payments: removal of tax relief for periods of foreign service relief from April 2018

On 13 September 2017 draft legislation for some clauses in the Finance Bill 2018 were published, including clauses which will amend the Income Tax (Earnings and Pensions) Act 2003 to abolish foreign service relief on termination payments for UK resident employees. The measure is intended to have effect from 6 April 2018 and to apply to those who have their employment contract terminated on or after 6 April 2018.

The draft is subject to technical consultation until 25th October 2017 and the final contents of the Finance Bill 2017 to 2018 will be subject to confirmation at the autumn Budget 2017.

https://www.gov.uk/government/publications/termination-payments-removal-of-foreign-service-relief

For more information on the taxation of termination payments please see the Emplaw Online guide Tax- Post Termination Issues from Steve Cook of Accountants Nunn Hayward. Full content available to Emplaw Online subscribers only

Presidential guidance on the statutory appeal procedure

The Employment Tribunal Presidents for England & Wales and Scotland have issued a Joint Presidential Guidance on making statutory appeals under section 37G of the Employment Tribunals Act 1996 (that is appeals against financial penalties such as a notice of underpayment issued under section 19 of the National Minimum Wage Act 1998 and financial penalties for failure to pay sums ordered by the ET to be paid or settlement sums).

The guidance includes recommended but non mandatory Notice of Appeal forms

https://www.judiciary.gov.uk/wp-content/uploads/2015/03/presidential-guidance-statutory-appeals-20170911.pdf

Calculation of holiday pay payments by the Insolvency Service Redundancy Payments Service (RPS) updated to include commission, reflecting belatedly the EAT decision in Lock v British Gas Trading 

Where an employer is insolvent RPS pays holiday pay, as well as certain notice pay and redundancy pay to employees. It has recently announced that the way it calculates holiday pay will include contractual-based commission. Employees who have already received a payment and who indicated on their application that they were entitled to contractual commission may be eligible for an additional payment

https://www.gov.uk/government/news/employment-appeal-tribunal-changes-to-how-the-insolvency-service-calculates-holiday-pay-payments

The Addison Lee and Uber ‘worker’ cases- latest

On Monday this week, the London Central ET decided that three drivers for the minicab firm, Addison Lee, should have been classified as workers, rather than self-employed, and so were entitled to the national minimum wage and holiday pay.

Meanwhile the appeal against the ET decision that decided that two Uber drivers were workers is being heard by the EAT on Wednesday and Thursday 27th and 28th September.

UK position paper on data post-Brexit

The government has set out its plans for arrangements that could ensure personal data would continue to move back and forth between the EU in the future in a safe, properly regulated way. The proposed UK-EU model is aimed at protecting and exchanging personal data in a way which allows free flows of data to continue between the EU and the UK and provides for ongoing regulatory cooperation.

https://www.gov.uk/government/publications/the-exchange-and-protection-of-personal-data-a-future-partnership-paper

 

Tribunal Quarterly statistics

The Ministry of Justice has published tribunal and gender recognition certificate quarterly statistics for April-June 2017.

Compared with the same quarter in 2016 single claims are up by 2%, disposals decreased by 6%. Multiple claims increased by 19%.

The total ET caseload outstanding at end June 2017 was 274,468 (96% of which were multiple claims).

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/644443/tribunal-grc-statistics-q1-2017-18.pdf

Trade Union (Wales) Act 2017

The Trade Union (Wales) Act 2017 came into force on 13 September 2017. This Act amends TULR(C)A to disapply sections 3,13, 14 and 15 of the Trade Union Act 2016 in so far as they relate to certain public services provided by devolved Welsh public authorities, or relate more generally to the operations of such authorities. The Act also prohibits devolved Welsh public authorities from using workers supplied by an employment business (agency workers) to cover the duties of staff engaged in official industrial action. In essence, this Act achieves the following:

o Section 116B of TULR(C)A (inserted by section 15 of the Trade Union Act 2016) which restricts the circumstances in which union subscriptions may be deducted from the wages of workers in the public sector, does not apply to devolved Welsh public authorities

o Certain rules about facility time do not apply to Welsh public authorities. In particular, the rule requiring public sector employers to publish information about the amount of facility time allowed and the power to make regulations to cap the employer’s total pay bill spent on paying union officials for facility time do not apply to Welsh public authorities

o The 40% ballot threshold for industrial action does not apply for important public services in relation to Welsh public services

At Emplaw Online we have summary guides to recent Acts, which are up to date, straight forward and set out the key provisions and consequent Regulations and Codes.  Usually available only to subscribers, we publish here the summary guide to the Trade Union Act 2016, updated to include The Trade Union (Wales) Act

 

CASES: 

Porras Guisado v Bankia SA and others (C-102/16)

Collective redundancy could, but would not necessarily be, an ‘exceptional case’ for purposes of excluding protection from dismissal under the Pregnant Workers Directive

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Nogueira and Others v Crewlink [2017] EUECJ C-168/16; Moreno Osacar v Ryanair C-169/16

Jurisdiction: Choice of forum clause in employment contract unenforceable - the Brussels I Regulation applies

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Case Summary Tag: 

De Mota v ADR Network & Anor [2017] UKEAT 0305/16

Acas certificate granted where two respondents named on same conciliation form gave ET jurisdiction to hear case

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Thomas Cook Airlines Ltd v BALPA [2017] EWHC 2253

High Court rules it is not necessary to specify dates for industrial action in ballot paper

In this case, Thomas Cook sought an injunction to restrain the pilots union BALPA from calling a strike.

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Asda Stores Ltd v Brierley UKEAT/0011/2017

Treaty on the Functioning of the European Union applies in equal value cases so that claimant shop floor workers (mostly female) can compare themselves with depot workers (mostly male)

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British Airways v Pinaud UKEAT/0291/16

Less favourable treatment of a part time worker

Regulation 5 of the Part Time Workers Regulations 2000 identifies the right of a part-time worker not to be treated less favourably than a full-time worker.  It provides:

“(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -

(a) as regards the terms of his contract; or

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Barbulescu v Romania (Application no. 61496/08) [2017] ECHR 742

Employer’s monitoring of emails, in the particular circumstances, was a breach of  was European Convention on Human Rights

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Case Summary Tag: