Emplaw Monthly - End of October 2017

New at Emplaw Online

All recent posts of articles at Emplaw Online are found at the News section of the site here. Links below may be to the original source for simplicity

TUPE in a nutshell

When does TUPE apply and what does it mean?  A useful summary article by our friends at Employment Law In Action.

Click here for the article

Vaping in the Workplace

Vaping is not covered by smoke free legislation and employers need to be clear on what their policy is. Emplaw Online authors Shakespeare Martineau take a look at the recent guidance from Public Health England and what this means for employers and their policy makers.

Click here for the article

Invitation to free seminar on Incentivising Employees: What Do Employees Want?

An invite from Emplaw contributors Moorcrofts to a free seminar aimed at helping employers to successfully recruit and retain talent and grow their business. A panel of experts will discuss share options and other benefits which reward employees and are proven to drive growth as well as how to deliver greater staff satisfaction and productivity without additional cost.

The seminar, which is suitable for HR professionals, senior managers and business owners takes place near Marlow in the Thames Valley on 29th November 9-11:30am. For more information and to register, please click here.

Focus on Emplaw Online Content

Are you a global employer or employee?

Whilst Emplaw Online specialises in UK employment law, there is an e-book on employment law in other jurisdictions from Multilaw, available to download free from the front page of the site at emplaw.co.uk.

De-mystifying TUPE 

The Employment Law in Action article is an excellent starting point. For more detailed information, go to the Emplaw Online law card written by barrister Nathaniel Caiden from Cloisters on TUPE/Consequences

For the full list of our cards on TUPE from Nathaniel and fellow Cloisters' barrister Sally Robertson, please click here

Full content is available to Emplaw Online subscribers only.

Employment Law News

Mental health - Acas guidance plus the Stevenson / Farmer review reports

Acas has launched new guidance to help employers manage mental health in the workplace. The guidance includes advice on spotting the signs of mental ill health; talking to and supporting a team member that may be experiencing mental ill health and helping a team member return to work.

http://www.acas.org.uk/index.aspx?articleid=6064

Meanwhile the government commissioned Stevenson / Farmer review has been published. The research found green shoots of good practice and sets out a number of mental health core standards which is a framework for a set of actions which the authors believe all organisations in the country are capable of implementing quickly. The core standards as follows:

  • Produce, implement and communicate a mental health at work plan;
  • Develop mental health awareness among employees;
  • Encourage open conversations about mental health and the support available when employees are struggling;
  • Provide employees with good working conditions and ensure they have a healthy work life balance and opportunities for development; • Promote effective people management through line managers and supervisors;
  • Routinely monitor employee mental health and wellbeing.

The report also outlines a series of more ambitious ‘enhanced’ standards for employers who they believe and should do more to lead the way, building on the mental health core standards. The report is found at: 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/654514/thriving-at-work-stevenson-farmer-review.pdf

Tribunal fee refund scheme launched but will fees return?

The government has announced the launch of its scheme to refund those who had paid employment tribunal fees. People will be contacted individually and given the chance to complete applications before the full scheme is opened: this phase will last around four weeks.

https://www.gov.uk/government/news/opening-stage-of-employment-tribunal-fee-refund-scheme-launched

Meanwhile the Lord Chancellor told MPs on 25th October that, whilst no final decision has been made, he believes fees are necessary for funding the court system and deterring vexatious claims -- listen and watch what he said at minute 23 onwards of the video at http://www.parliamentlive.tv/Event/Index/4208c944-4371-48a3-9b00-fb97622e1fd0

Blog from HMCTS on what is planned for courts and tribunals reform over the next 18 months. 

Whilst the blog does not refer explicitly to Employment Tribunals, the general points are interesting and it does reference the accelerating moves to online services in the tribunals including Virtual hearings (with all parties able to attend from anywhere) which are currently being technically tested for immigration and asylum case management.

https://insidehmcts.blog.gov.uk/2017/10/26/susan-acland-hood-sets-out-our-priorities-for-the-next-phase-of-courts-and-tribunals-reform/?utm_medium=email&utm_source=

New website for Institute of Apprenticeships

The Institute for Apprenticeships has launched its new website. The move from the GOV.UK website to an independent domain reflects the evolution of the Institute and its independent, employer-led approach.

https://www.ifapprenticeships.org

PM’s open letter to EU citizens in the UK

The prime minister has written directly to EU citizens in the UK suggesting that they will be able to remain in the UK after Brexit.

https://www.gov.uk/government/news/pms-open-letter-to-eu-citizens-in-the-uk

See also the government Policy Paper published back in June on Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU: summary proposals

Transparency in supply chains:  updated practical guide

The government has published updated guidance on how businesses should comply with the Modern Slavery Act, in particular the requirement for businesses to set out the steps they have taken to ensure that there is no modern slavery in their business and supply chains.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/649906/Transparency_in_Supply_Chains_A_Practical_Guide_2017.pdf

The National Audit Office has also published a modern slavery and human trafficking statement for 2016/17.

https://www.nao.org.uk

Emplaw Online has a summary of the Modern Slavery Act here

House of Lords calls for tougher legislation on modern slavery

The House of Lords have discussed action on modern slavery and have made calls for stronger rules on modern slavery statements.

https://hansard.parliament.uk/Lords/2017-10-16/debates/CC80936C-D4B3-45A7-B587-69EFFBEC4FCF/SlaveryAndHumanTraffickingStatements

Ethnic diversity of UK boards 2017 – report of the Parker Review Committee.

The Parker Review Committee has published its final report into ethnic diversity on UK boards, setting out a series of recommendations to be read alongside the review of ethnic diversity and the labour market led by Baroness McGregor-Smith published in February 2017.

The key recommendations are to increase the ethnic diversity of UK boards; develop candidates for the pipeline and plan for succession; enhance transparency and disclosure.

http://www.ey.com/Publication/vwLUAssets/The_Parker_Review/$FILE/EY-Parker-Review-2017-FINAL%20REPORT.pdf

Data Protection Bill

The Data Protection Bill has had a second reading in the House of Lords. The Bill will now go through committee stage, which is when amendments may be made.

The Information Commissioner has prepared a briefing in relation to some of the issues and concerns in the Bill, which can be read here:

https://ico.org.uk/media/about-the-ico/documents/2172484/dp-bill-commissioner-briefing-lords-second-reading.pdf

The ICO has also published a checklist for preparing for the law enforcement requirements of the Bill:

https://ico.org.uk/media/for-organisations/documents/2014918/dp-bill-12-steps-infographic.pdf

In advance of the second reading the House of Lords library also published a briefing paper examining the Bill

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2017-0065

Guidance on the stakeholder’s voice in board meetings

The Investment Association and the governance institute ICSA have provided guidance on stakeholder engagement. The guidance is a practical industry-led initiative which is aimed at helping companies reflect on their current engagement practices and consider further improvements. The guidance, which was welcomed by the government in its recent announcement on corporate governance reform, identifies ten principles to guide the way boards approach these issues. They cover: identifying key stakeholders; the composition of the board and development of directors; the way in which boards receive and process information; designing appropriate engagement mechanisms; and reporting and feedback to shareholders and stakeholders.

The guidance is set against the background of the government’s steps to strengthen stakeholder engagement (set out below).

The guidance is expected to be of use to all sizes of company and irrespective of sector.

The guidance can be read here: https://www.theinvestmentassociation.org/assets/files/press/2017/2017-09TheStakeholderVoiceinBoardDecisionMaking.pdf

Response to green paper on corporate governance

The Business, Energy and Industrial Strategy Committee’s report into corporate governance together with responses to the government’s green paper in November 2016 on corporate governance (executive pay, corporate governance in large privately-held businesses and the steps company boards take to engage in a more transparent manner and listen to employees and other groups) has led to an announcement of a package of recommendations.

Key proposals include secondary legislation to require relevant companies (of a significant size) to explain how their directors comply with the legislative requirement to have regard to employee and other stakeholder interests and promote the success of the company and a proposal to invite the Financial Reporting Council to consult on the development of a new corporate governance code establishing the importance of strengthening stakeholder voices at board level. It is expected that these changes will come into effect by June 2018.

The government’s recommendations can be read here:

https://publications.parliament.uk/pa/cm201719/cmselect/cmbeis/338/338.pdf

 

CASES: 

NHS24 v Pillar UKEATS/0005/16

Where grounds for gross misconduct exist, it is not unfair to include past details of misconduct which did not result in formal sanctions

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Case Summary Tag: 

Big Bad Wolff Limited v the Commissioners for HMRC [2017] UKFTT 0729

IR35 test case on national insurance contributions

In a test case (a number of cases concerning members of the acting profession awaited this decision) the first tier tax tribunal has held that an actor, Mr Glenister supplying his services through a personal services company was liable to pay national insurance contributions by virtue of the intermediaries legislation (also known as the IR35 rules).

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Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632

When considering knowledge of protected disclosure, a tribunal must only take into account the mind of the investigating officer

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Kalliri [2017] EUECJ C-409/16

Equal treatment of men and women – Greek police school - minimum physical height requirement

This request to the ECJ concerns an action for annulment brought by Ms Kalliri against administrative measures adopted on the basis of a national law making the admission of candidates for competition for entry into the Greek police school subject to a minimum height requirement.

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Chief Inspector of Education, Children's Services And Skills v The Interim Executive Board of Al-Hijrah School (Rev 1) [2017] EWCA Civ 1426

Segregation of genders at school is discriminatory

The Court of Appeal has considered the issue in judicial review proceedings of whether it is direct discrimination contrary to sections 13 and 85 (Pupils: admission and treatment, etc)of the Equality Act 2010 for a mixed sex school to have a complete segregation of male and female pupils over a certain age for all lessons.

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Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs AND Secretary of State for Foreign & Commonwealth Affairs and Libya v Janah [2017] UKSC 62

No state immunity for private acts

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Reyes v Al-Malki & Anor [2017] UKSC 61

No diplomatic immunity in respect of private employment

On the same day as the decision in Benkharbouche the Supreme Court held in Reyes that Mr Al-Maki, a member of Saudi diplomatic staff in the UK, could not claim diplomatic immunity in response to a claim of human trafficking brought by their employee Ms Reyes.

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