Emplaw Monthly - End of March 2018

New at Emplaw Online

GDPR for employers

As part of the Emplaw Online series of summary guides to recent and upcoming legislation, we have published a law card explaining how the DPB and the GDPR work together and to what extent, in the context of the employment relationship, these represent changes to the regime under the DPA 1998. The card also sets out a summary of the practical key points and steps for employers to take

Click here - full content available to Emplaw Online subscribers only

12 Week rights for agency workers: Kocur v Royal Mail

Tom Coghlin QC gives an incisive summary of a decision which brings much-needed clarification to the rights of agency workers to the same basic working conditions under the Agency Worker Regulations 2010. Emplaw Online author Nathaniel Caiden of Cloisters appeared for the successful appellant.

For the blog, please click here

Managing Trade Unions in the Digital Age: 2018 and onwards

A free seminar from Emplaw Online authors Lewis Silkin to be held on 30th May at 5pm in London. 

Click here for more details

Employment law news

GDPR latest

Joint guidance for charities on GDPR

The Fundraising Regulator, the Institute of Fundraising and the ICO have jointly produced guidance for fundraisers on the General Data Protection Regulation.

https://www.fundraisingregulator.org.uk/information-registration-for-fundraisers/guidance/gdpr-charitable-fundraising-guidance-briefings/

ICO introduction to Data Protection Bill

The ICO has published an introduction to the Data Protection Bill. This is intended to be an introduction to the content and structure of the Data Protection Bill for organisations and individuals who are already familiar with data protection law and the GDPR

https://ico.org.uk/media/for-organisations/documents/2258303/ico-introduction-to-the-data-protection-bill.pdf

Updates to ICO guidance on GDPR, including legitimate interests in the employment context

The ICO has updated the guide page on Data Protection Impact Assessments (DPIAs) for consultation. The consultation will end on 13 April 2018. The ICO has also published detailed guidance on legitimate interests. These is some mention of legitimate interests in the employment context but it is not as definitive as some would have liked.

https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/whats-new/

GDPR is not Y2K

Listen to the recent podcast from Information Commissioner Elizabeth Denham, answering questions on GDPR myths.

https://iconewsblog.org.uk/2017/12/22/gdpr-is-not-y2k/

Reminder of April changes - NMW, GPG reporting, statutory limits,termination payments and increases in minimum contributions for automatic enrolment pensions

NMW and statutory limits.

As reported last month,the National Minimum Wage and statutory limits for benefits and awards increase from 1st and 6th April respectivley.  Click here for the detail. Meanwhile, the HMRC has published guidance on Rates and thresholds for employers: 2018 to 2019 

Termination Payments

Taxation of PILONs

A PILON, whether or not contractual, will be chargeable to income tax and Class 1 National Insurance Contributions (NICs) as general earnings and will not benefit from the £30,000 threshold.The tax changes are found in section 5 of The Finance (No. 2) Act 2017 which refers to post-employment notice pay ( PENP) and which represents the amount of basic pay the employee will not receive because their employment was terminated without full, or proper notice being given. PENP calculations do not apply to statutory redundancy payments. See page 5 of the updated HMRC bulletin here. The NIC changes are  found in the Social Security (Contributions) (Amendment No. 2) Regulations 2018

Exemption for injury payments on termination

Section 5 of The Finance (No. 2) Act 2017  provides that  the tax exemption for injury payments does not apply for injured feelings except where the injury amounts to a psychiatric injury.

Power to vary

The section also provides for the Treasury to vary the £30,000 threshold by regulations

Foreign Service Relief

Foreign Service Relief on termination payments will also be withdrawn from 6 April 2018 for most UK resident employees. The measure, contained in the Finance Act 2018  applies to those who have their employment contract terminated on or after 6 April 2017 and if the termination payment is received after 13 September 2017.

Gender Pay Gap Reporting.

The deadline for the first year of reporting is:

- 4 April 2018 for private and voluntary sector organisations
- 30 March 2018 for public sector organisations

The brief guide from the Government Equalities Office (GEO) specifically for Emplaw Online users is found here

Increases in minimum contributions for automatic enrolment pensions

On 6 April 2018 contributions increase from the current minimum of a total contribution of 2% of qualifying earnings to 5%, of qualifying earnings . The employer minimum contribution rises from 1% to 2% .Staff members will have to make up whatever shortfall remains of the new total minimum contribution. This will be 3% if the employer contributes the required minimum amount - but less if the employer contributes more. 

Family friendly updates

Unsharing shared parental leave - separate, extended and paid paternal leave?

The House of Commons Women and Equalities Committee has published a report including a number of recommendations focussed on improving the rights of fathers in the workplace.

Included is the proposal that 12 weeks paternal leave and pay replace shared parental leave, that fathers and second parents would be eligible for this leave in their own right; it would not affect mothers’ existing entitlements to maternity leave and pay and it would be paid at 90 per cent of salary for the first four weeks (with a cap for higher earners), and the remaining eight weeks paid at statutory levels.

The proposal would involve substantial expense but it could potentially hugely simplify the process and improve the take up rate of leave by fathers.

http://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/fathers-and-the-workplace-report-17-19/

Returners fund and guidance for employers to support people back into work after time out caring

The GEO has launched a £1.5 million fund to support people back into work after time out caring, together with a best prective guide for employers.ance providing a framework for organisations to develop effective returner programmes.

Expressions of interest for the first round of bidding for funding must be submitted by March 30th and for the second round, by the 16th August

https://returnersfund.flexigrant.com/

https://www.gov.uk/government/publications/set-up-a-returner-programme

Low Pay Commission consultation 2018

The Low Pay Commission has opened a consultation seeking evidence on the effects of recent increases in the national living wage and national minimum wage to inform thinking about future upratings.

It is also looking at a recommendation in the Taylor review, considering the potential impact of a premium for hours that are not guaranteed. They are also conducting a review of the NMW structure encompassing a review of youth rates.

https://www.gov.uk/government/consultations/low-pay-commission-consultation-2018

Whistleblowing - NHS Recruitment - Protected Disclosure Regulations

The government has published its response to the consultation on the draft Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 , which are designed to prohibit defined NHS employers from discriminating against job applicants because it appears to the employer that the applicant has previously made disclosures of information (‘whistleblowing’) within the meaning of the Employment Rights Act 1996. The response includes updates to the draft regulations but  no date for implementation has yet been given. 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/691347/Draft_Employment_Rights_Act_1996__NHS_Recruitment_-_Protected_Disclosure__Regulations_2018_-_response_document.pdf

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

The Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018 have been approved by each House of Parliament.

Section 3 of the Investigatory Powers Act  2016 (which will replace the Regulation of Investigatory Powers Act 2000) makes it an offence if a person intentionally intercepts a communication in the course of its transmission by means of a telecommunication system without lawful authority. Chapter 2 of Part 2 of the Act provides a number of ways in which the interception of communications may have lawful authority. They include section 46(1) of the Act, which gives the Secretary of State the power to make regulations authorising conduct which appears to the Secretary of State to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any relevant activities, of the monitoring or keeping a record of certain communications. “Relevant activities” are defined in section 46(4) of the Act, and include any business.

Regulation 3 sets out the conduct that is authorised by these Regulations. Conduct is authorised by these Regulations if it consists of the interception of a communication for one of the purposes listed in paragraphs (2), (3) or (5) of regulation 3. The interception must be effected by or with the express consent of a person who has the right to control the operation or use of the telecommunication system by means of which the communication is being transmitted.

Regulation 4 imposes further limits on the conduct that can be authorised by regulation 3.

http://www.legislation.gov.uk/uksi/2018/356/contents/made

Trade Secrets Directive: protecting employer know-how

The Trade Secrets Directive, aimed at protecting employer know-how, came into force on 5 July 2016 and must be transposed into UK domestic law by 9 June 2018.

The government launched a consultation on draft regulations to transpose the Directive into national law. The consultation closed on on 16 March 2018 but the explanatory consultation document is helpful in understanding the issues.

The regulations provide for a statutory definition of the term ‘trade secret’ and set out rules concerning time periods for bringing proceedings.

The regulations contain provisions concerning the preservation of confidentiality of trade secrets during and after proceedings have concluded, as well as measures relating to interim orders for delivery up.

There are also provisions relating to measures which may be imposed upon an infringer and the factors to be considered.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/682184/Consultation_Trade_Secrets_Directive.pdf

Appointment of the inaugural Vice-President of the Unified Tribunals

Lord Justice Lindblom appointed as the inaugural Vice-President of the Unified Tribunals.His role includes the development of the judicial leadership framework for the Employment Appeal Tribunal

https://www.judiciary.gov.uk/announcements/announcement-for-the-new-vice-president-of-tribunals/

CASES: 

United First Partners Research v Carreras [2018] EWCA Civ 323

Expectation to work long hours was PCP

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Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16

Reasonableness of dismissal- Supreme Court suggests there may be a challenge to BHS v Burchell

Section 98 Employment Rights Act 1996 governs whether a dismissal is unfair.  The first part of the inquiry, governed by subsections (1) to (3), is whether the employer has shown both the reason for the dismissal and that the reason relates to the employee’s conduct or falls within another part of subsection (2) or otherwise justifies dismissal.

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Case Summary Tag: 

Keeping Kids Company v. Smith & Ors [2018] UKEAT 0057/17

Collective redundancies consultation – protective award – special circumstances and period of award

Section 188 Trade Union Labour Relations (Consolidation) Act 1992 provides that:

"Duty of employer to consult … representatives

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Mruke v Khan [2018] EWCA Civ 280

‘Egregious’ underpayment of NMW constituted grounds for constructive dismissal, despite lack of knowledge of NMW

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Matzak [2018] EUECJ C-518/15

Standby time with duty to respond in 8 mins is working time but the WTD does not require remuneration to match working time

Article 1 of the Working Time Directive 2003/88 provides minimum requirements for working time. Article 2 states that for these purposes:

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Gomes v Higher Level Care Ltd [2018] EWCA Civ 418

No power to award compensation for injury to feelings for breach of the WTR

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Kocur v. Angard Staffing Solutions Ltd & Anor [2018] UKEAT 0181/17

Agency worker cannot be paid in lieu to compensate for lesser holiday than direct recruits

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Porras Guisado [2018] EUECJ C-103/16

No breach of Pregnant Workers Directive where pregnant employee is not given preferential treatment in collective redundancy exercise

The case concerns a reference to the ECJ concerning the legality of the dismissal of a pregnant employee, Ms Guisado, in the context of a collective redundancy. Ms Guisado worked for Bankia in Spain.

Article 10 of the Pregnant Workers Directive 92/85/EEC provides:

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Really Easy Car Credit Ltd v Thompson [2018] UKEAT 0197/17

No need to review dismissal decision on learning of pregnancy

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Brazel v The Harpur Trust [2018] UKEAT 0102/17

Calculation of part-time term-time worker’s holiday pay to be calculated according to method in s. 224 ERA 1996

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Lofty v Hamis (t/a First Café) [2018] UKEAT 0177/17

Cancer in situ that cannot spread to other parts of the body still a disability under the Equality Act 2010

Schedule 1 para 6 of the Equality Act 2010, which is a deeming provision covering the definition of disability, provides:

‘6. Certain medical conditions

(1) Cancer, HIV infection and multiple sclerosis are each a disability.

(2) HIV infection is infection by a virus capable of causing the Acquired Immune Deficiency Syndrome’.

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Carewatch Care Services Ltd v Henry & Ors [2018] UKEAT 0219/17

TUPE - Service provision change - fragmentation must be considered when when determining whether or not the relevant activities carried out by the original contractor were fundamentally the same post-transfer.

Regulation 3 of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE) provides: 

"3. A relevant transfer

(1) These Regulations apply to … 

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Case Summary Tag: