Emplaw Monthly - End of January 2018

New at Emplaw Online

Direct from the GEO- tips on Gender Pay Gap Reporting

A unique insight from the Government Equalities Office (GEO) specifically for Emplaw Online users. As the first deadline for gender pay gap reports approaches, the GEO reminds employers and their advisors what needs to be done now and how. The GEO acknowledges that nearly all employers will have a gender pay gap this year and the key next step is to take action to address it. Top tips are included - feel free to share!

Click here for the article

Invite to free employment law seminars in Birmingham, Leicester and London

An invitation from Emplaw Online authors Shakespeare Martineau to a half day seminar which will include a roundup of all the latest employment case law as well as looking at issues around having a flexible work force and the importance of supporting equality issues in the workplace.

The seminars, which are suitable for HR professionals, senior managers and business owners take place in March. For more information and to register, please click here

Video from Multilaw global employment law experts on protecting data around the world

A video of a panel discussion at the Multilaw Labour & Employment Group during which their employment law experts explored issues arising from the interplay between employment law and data privacy in 3 different contexts: (i) at the recruitment stage, (ii) during employment and (iii) when an employee leaves. The content will be of interest to HR Directors, in-house Counsel and other senior executives with responsibility for managing an international workforce.

To watch the video, click here

Multilaw authors an ebook on employment law in other jurisdictions, downloadable free at emplaw.co.uk.

Still Useful - Employment highlights of 2017 and looking ahead to 2018

Click here for our annual essential summary of last year's employment happenings and what to look out for in 2018

Focus on Content

Our cards on unfair dismissal, from Cloisters’ barristers Sian McKinley and Tamar Burton, explain and examine all the key elements involved in a claim and the potential remedies

For the Unfair Dismissal Key card, click here

For the full list of cards in the section, click here

 

Employment law news

GDPR latest – FAQs for small businesses, draft privacy notices and more

The Information Commissioner’s Office has published a series of separate frequently asked questions for small organisationscharitiesthe education sectorsmall local authorities and small health sector bodies on the General Data Protection Regulation.

As reported last month, the ICO has also published a guide to the GDPR which replaces its overview of the GDPR.  We mention it again as there are copious amounts of information out there but this is the ‘go-to guide’ with links to relevant information such as the marketing rules and the Code of Practice on Privacy notices. It is still work in progress and the ‘what’s new ‘section reports monthly updates. Information includes a number of useful checklists.

Also, the government has published suggested privacy notices for schools and local authorities to issue to staff, parents and pupils about the collection of data.

 https://www.gov.uk/government/publications/data-protection-and-privacy-privacy-notices#history

Is sex discrimination law in the UK fit for purpose?  - the Fawcett review makes some bold recommendations

The Fawcett review
A hundred years after the first women’s suffrage legislation, the Fawcett Society has brought together a panel of legal and policy experts, following the Brexit referendum decision, to ask: is sex discrimination law in the UK fit for purpose?
The review’s recommendations, which are summarised on page 12, include
• Concerned that the current European Union (Withdrawal) Bill leaves equality law, including the Equality Acts 2010 and 2006, open to significant changes without substantial parliamentary scrutiny, it proposes narrowing the scope of the powers under the Bill to exclude substantive changes to employment law from the powers to amend legislation without substantial parliamentary scrutiny.
• The protection period from dismissal due to pregnancy and maternity discrimination should be extended to cover the 6 months after a mother returns to work
• Paternity leave should be extended to six weeks, paid at 90% of earnings, to be taken at any time in the first year after the birth.
• There should be mandatory equal pay audits every three years, for employers of 250 people or more
 

https://www.fawcettsociety.org.uk/Handlers/Download.ashx?IDMF=e473a103-28c1-4a6c-aa43-5099d34c0116

Gender Pay Gap Regulations – enforcement and action list for employers

The Equality and Human Rights Commission has published a draft policy setting out its planned approach to enforcing the Gender Pay Gap Regulations.

The EHRC is consulting on its enforcement plans against large private, voluntary and public sector employers who fail to comply with the regulations. Consultation closes on 2nd February.

https://www.equalityhumanrights.com/en/publication-download/closing-gap-enforcing-gender-pay-gap-regulations

Meanwhile the GEO has published an action list for employers with a view to closing the gender pay gap. See also the article the GEO had drafted specifically for Emplaw Online here

https://www.gov.uk/government/publications/closing-the-gender-pay-gap-actions-for-employers

 

Changes to Disclosure and Barring Service - basic disclosures made easier

The Disclosure and Barring Service (DBS) are making changes to the basic disclosure process (i.e. a disclosure that only shows only unspent convictions). From this month,  a basic disclosure check for a job in England and Wales should be made to the DBS and applications for a basic disclosure check for a job in Scotland should be made to Disclosure Scotland (previously Disclosure Scotland handled basic checks for England and Wales too).

Basic disclosures are available to individuals and via Responsible Organisations (an organisation registered with the DBS to submit basic checks through a web service). Employers can apply if they are a Responsible Organisation themselves or by using an intermediary that is registered.

An individual can now apply for a basic disclosure direct to the DBS using an online service

https://www.gov.uk/government/news/basic-disclosure-changes

Acas conciliation data

Acas has published data on early conciliation figures April 2017 - September 2017.

Between the start of April 2017 and the end of July, Acas received around 1,700 notifications per week. This is consistent with notifications received throughout 2016/17.

http://www.acas.org.uk/index.aspx?articleid=6089

Unite online tools to fight for increased pay

Unite has published online tools to assist workers in their fight for increased pay and a fair share of company profits.

http://www.unitetheunion.org/news/new-online-tools-to-fight-for-increased-pay-in-2018/ 

 

The Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-Keeping Purposes) Regulations 2018

The government has published a draft set of regulations, the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-Keeping Purposes) Regulations 2018 which will replace the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (Telecommunications Regulations). The new regulations take into account the implementation of the EU General Data Protection Regulation, which comes into effect on 25 May 2018. The regulations largely replicate the 2000 Regulations, which enable employers in certain circumstances to intercept communications (including those of their employees) without consent.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/669124/IP__Interception_by_Businesses_etc__for_Monitoring_and_Record-keeping_Purposes__Regulations_2018.pdf

Consultation on transforming the court and tribunal estate

A consultation has been launched on the proposed future strategy for HM Courts & Tribunals Service in its approach to court and tribunal estate reform. The consultation is aimed at court and tribunal users, legal professionals and bodies, the judiciary and magistracy and all other individuals with an interest in the court and tribunal estate in England and Wales.
The consultation closes 29 Mar 2018

https://consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/

CASES: 

Royal Surrey County NHS Trust v Drzymala [2017] UKEAT/0063/17

Compliance with Fixed Term Employees Regulations does not mean employer has acted fairly in dismissal.

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The Chief Constable of Norfolk v. Coffey [2017] UKEAT 0260/16

Perceived discrimination on ground of disability upheld

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Crawford v. Network Rail Infrastructure Ltd [2017] UKEAT 0316/16

Compensatory rest under WTR- the length of the individual break is crucial

In this case Mr Crawford was a railway signalman working on single manned boxes on eight-hour shifts. He had no rostered breaks but was expected to take breaks when there were naturally occurring breaks in work whilst remaining ‘on call’. Although none of the individual breaks lasted 20 minutes, in aggregate they lasted substantially more than 20 minutes.

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Kostal UK Ltd v Dunkley & Ors [2017] UKEAT 0108/17

TULR(C)A section 145B and unlawful inducements – employer had recognised Unite and its letters to staff constituted a ‘prohibited result’

Section 145B Trade Union & Labour Relations (Consolidation) Act 1992 provides that a worker who is a member of an independent trade union which is recognised by his employer has the right not to have an offer made to him by his employer if:

-          acceptance of the offer[…] would have the prohibited result, and

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Tyne and Wear Passenger Transport Executive v (t/a Nexus S Anderson & Ors) [2018] UKEAT 0151/16

ET has power to construe a contract

This case concerned an unauthorised deduction from wages claim. The issue was whether the employment tribunal was wrong to attempt any contractual construction or to consider whether or not a term ought to be implied into the contract.

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Case Summary Tag: 

Gilham v Ministry of Justice EWCA [2017] Civ 2220

Salaried District judge not a worker for whistleblowing purposes

A whistleblowing claim may be brought only by a "worker" (see section 47B (1) Employment Rights Act 1996, ‘ERA’). "Worker" is defined by section 230 (3) of ERA as follows:

"In this Act 'worker' (except in the phrases 'shop worker' and 'betting worker') means an individual who has entered into or works under (or, where the employment has ceased, worked under) —

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Lopez Ribalda and others v Spain Applications 1874/13 and 8567/13

Covert surveillance of workers did not breach Article 8 ECHR

The ECJ considered in this case whether Article 8(1) of the European Convention on Human Rights (right to respect for private and family life, home and correspondence) was breached in a case where an employee was dismissed following evidence obtained through covert video surveillance.

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Case Summary Tag: