Emplaw Monthly - End of April 2018

New at Emplaw Online

GDPR for employers

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. The law card is part of the Emplaw Online series of summary guides to recent and upcoming legislation usually available only to  subscribers but with just a month to go, we have opened up access for all

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Does offering enhanced maternity pay discriminate against men?

Emplaw Online authors, Gowling WLG, explain the recent EAT decision in in Ali v Capita Customer Management Limited that it is not direct sex discrimination for employers to offer 14 weeks' enhanced maternity pay but only statutory Shared Parental Leave pay.

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Statutory Limits for Awards and Benefits 2018-2019

A quick reference guide including tribunal compensation limits, state payments on insolvency of employer, National Minimum Wage rates, tax rates and allowances, National Insurance contribution details and social security benefit rates such as statutory sick pay and shared parental leave pay.

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Full content available to Emplaw Online subscribers only 

Employment law news

Updated bands of awards for injury to feelings in discrimination cases

Section 119 of the Equality Act 2010 provides that an award of damages may include compensation for injured feelings.The amount of damages awarded is assessed in accordance with the Vento guidelines (named after the case).

The Presidents of the Employment Tribunals in England & Wales and Scotland have issued joint Presidential Guidance updating the bands of awards for claims presented on or after 6 April 2018 as follows:

Lower band: for less serious cases: £900  to  £8,600

Middle band: for cases that do not merit an award in the upper band: £8,600 to £25,700

Upper band: for the most serious cases: £25,700  to  £42,900

Excpetional cases may exceed £42,900

https://www.judiciary.gov.uk/wp-content/uploads/2013/08/vento-bands-presidential-guidance-first-addendum-230318.pdf, 

IWGB seeks judicial review of CAC worker decision and files more worker claims

The Independent Workers’ Union of Great Britain has applied for judicial review of the CAC decision in  Independent Workers’ Union of Great Britain v Deliveroo TUR1/985 (2016)  which found that the drivers were not workers as defined in section 296 of TULR(C)A  and so the application for union recognition could not proceed.

The union has also filed claims on behalf of 17 CitySprint couriers for holiday pay totaling £198,463.37 . Last year an ET held in Dewhurst v CitySprint UK Ltd ET 2202512/2016  that a CitySprint cycle courier was a ‘worker’. The union claims the 17 are also workers, despite changes introduced in a new contract.

https://iwgb.org.uk/2018/04/10/iwgb-to-file-holiday-pay-claims-stretching-back-20-years-against-citysprint-after-company-ignores-previous-ruling/

https://iwgb.org.uk/2018/04/10/iwgb-to-apply-for-judicial-review-in-groundbreaking-outsourced-workers-rights-case/

Acas new guidance on agency workers

Acas has published new guidance on agency workers which covers what it is to be an agnecy worker, agency worker rights and ways to resolve matters that may arise as an agency worker.

Gender pay gap reporting - what do the first reports show?

Public sector employers published their gender pay reports by 30 March 2018. These reports revealed that nine out of ten public sector employers paid men on average 14% more than women.

https://www.theguardian.com/society/2018/mar/30/nine-out-of-10-public-sector-bodies-pay-men-more-than-women?CMP=Share_iOSApp_Other

For private sector employers the deadline was 4 April 2018. These reports showed that the median pay gap was 9.7%. More than 1,500 companies missed the deadline for reporting their gender pay gap figures.

http://www.bbc.co.uk/news/business-43651780

Inquiry on executive pay and the gender pay gap in the private sector

The BEIS Committee has launched an inquiry on executive pay and the gender pay gap in the private sector. The Committee is looking at these issues in the context of concerns about the overall level of executive pay and bonuses.

On gender pay, the inquiry will look at issues around the compliance of businesses with reporting requirements on the gender pay gap, such as whether the regulations are properly capturing the salaries of staff, and what steps companies are taking to address the pay gap. The Committee will also look at measures to be taken against companies which do not comply with reporting requirements.

On executive pay, the Committee will be checking on the implementation of the Prime Minister's undertaking to crack down on excessive executive pay. 

The deadline for submissions on the gender pay gap is 27 April 2018. The deadline for submissions on executive pay is 8 May 2018.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/business-energy-industrial-strategy/inquiries/parliament-2017/corporate-governance-pay-17-19/

EHRC report and recommendations on ending sexual harassment at work

The Equality and Human Rights Commission has published a report ‘Turning the tables: ending sexual harassment at work’ which shares evidence about sexual harassment in the workplace and makes recommendations about how to end sexual harassment at work. The recommendations are set out on page 15 of the report and include:

  • The introduction of a statutory code of practice on sexual harassment and harassment at work and giving tribunals the power to increase compensation by up to 25% where mandatory elements of the code are not followed 
  • Acas should develop targeted sexual harassment training for managers, staff and workplace sexual harassment ‘champions’
  • The time limit for bringing claims should be extended from the current three months to six months
  • Restoring lost protections such as the power for tribunals to make recommendations, reintroducing an amended statutory questionnaire procedure in employment-related discrimination and harassment claims and reinstatement of protection from third party harassment 

https://www.equalityhumanrights.com/en/publication-download/turning-tables-ending-sexual-harassment-work

Parental Bereavement (Pay and Leave) Bill and BEIS consultation

The Parental Bereavement (Leave and Pay) Bill 2017-19 was presented to Parliament through the ballot procedure on Wednesday 19 July 2017. As currently drafted it provides for parents to take a minimum of 2 weeks paid Parental Bereavement Leave within a period of at least 56 days (8 weeks), beginning with the date of the death of a child.

The Department for Business, Energy & Industrial Strategy has published a consultation for regulations to fulfil certain provisions contained in the Bill. It focuses on the definition of a bereaved parent, how and when the leave may be taken and notice and evidence requirements. Responses must be submitted by 8th June 2018.

https://www.gov.uk/government/consultations/parental-bereavement-leave-and-pay?utm_source=0d49a2c0-589c-4397-bddc-02591f4cb1d3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

GDPR latest -  what does legitimate interests mean for employers, guidance on data protection impact assessments and security, and self-assessment toolkits revamped

Note: The Emplaw Online guide above includes up-to-date, employment relevant, explanations, references and links to the updated ICO guidance below

ICO: legitimate interests guidance- what does it mean for employers?

The Information Commissioner’s Office has published guidance to help organisations decide when to rely on legitimate interests as the basis for processing personal data and when to look at alternatives.It acknowledges that the GDPR highlights that the legitimate interests basis is likely to apply to processing employee or client data but the following three- part test should still be appplied:

Purpose test – is there a legitimate interest behind the processing?

Necessity test – is the processing necessary for that purpose?

Balancing test – is the legitimate interest overridden by the individual’s interests, rights or freedoms?;

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

The  guidance includes useful sections headed How do we apply legitimate interests in practice? And Can we use legitimate interests for employee or client data?

ICO: guidance on data protection impact assessments

The ICO has published draft guidance on data protection impact assessments for consultation together with a draft template. A data impact assessment is a process to help employers identify and minimise the data protection risks of a project.Whilst not always required under the GDPR, the ICO guidance states it is also good practice to do a DPIA for any major project which requires the processing of personal data

https://ico.org.uk/media/about-the-ico/consultations/2258459/dpia-guidance-v08-post-comms-review-20180208.pdf

ICO: guidance on security

The Information Commissioner’s Office has expanded its guidance on Security which makes it clear that compliance with this key data protection principle depends not just on technical measures but also on co-ordination between key people in an organisation and staff training 

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

ICO: self-assessment toolkits revamped

The Information Commissioner’s Office has revamped its self-assessment toolkits, created with small organisations in mind and designed to help assess their compliance with data protection law and find out what more they need to do.

https://ico.org.uk/for-organisations/resources-and-support/data-protection-self-assessment/

CBI report: ‘An A-Z of EU rules that matter for the economy'

The CBI has produced a report which provides an A-Z of the rules that will matter for business after the transition period. It outlines the regulatory needs of 23 industry and service sectors, of which 18 prefer convergence or alignment for the majority of regulation.

http://www.cbi.org.uk/insight-and-analysis/smooth-operations/ 

Termination payments - HMRC amends post-employment notice pay guidance

We reported on the new tax treatment of PILONs (pay in lieu of notice clauses) last month here but it is worth some further technical details as  HMRC has revised its guidance in the Employment Income manual to reflect the changes.

By virtue of amendments to the legislation which have effect from 6 April 2018, some termination payments and benefits are chargeable to income tax as general earnings and no longer benefit from the £30,000 threshold available in section 403 ITEPA 2003. The revised legislation applies to termination payments and benefits that meet all of the following criteria:

a) the payments, or benefits fall within section 401(1)(a) ITEPA 2003 i.e. they are received directly, or indirectly in consideration or in consequence of, or otherwise in connection with the termination of a person’s employment

b) the payments, or benefits are received on, or after 6 April 2018

c) the employment was ended on, or after 6 April 2018

d) the payments, or benefits are not statutory redundancy payments, or approved contractual payments to the extent that they are exempt under section 309 ITEPA 2003

e) the payments, or benefits are not chargeable to income tax by virtue of any provision other than in Chapter 3 of Part 6 ITEPA 2003

Termination payments and benefits, which meet all of the above criteria are ‘relevant termination awards’. These ‘relevant termination awards’ are split into 2 elements:

·         post-employment notice pay (PENP)

·         relevant termination awards subject to section 403 ITEPA 2003

The amount of post-employment notice pay is calculated using the PENP formula. The PENP formula is set out in the legislation at section 402D ITEPA 2003 (see EIM13880). Guidance on the application of this formula is available at EIM13880 to EIM13896.

https://www.gov.uk/hmrc-internal-manuals/employment-income-manual/eim12800

Hot off the press - Supreme Court gives guidance on when contractual notice of termination takes effect

The Supreme Court has dismissed the Trust's appeal against the Court of Appeal judgement (summarised at Emplaw Online here). The SC, in a majority judgement, ruled the notice took effect only when the dismissal notice letter came to the claimant's attention and she had a reasonable opportunity of reading it.  

https://www.supremecourt.uk/cases/docs/uksc-2017-0074-judgment.pdf

Termination payments - HMRC amends post-employment notice pay guidance

We reported on the new tax treatment of PILONs (pay in lieu of notice clauses) last month here but it is worth some further technical details as  HMRC has revised its guidance in the Employment Income manual to reflect the changes.

By virtue of amendments to the legislation which have effect from 6 April 2018, some termination payments and benefits are chargeable to income tax as general earnings and no longer benefit from the £30,000 threshold available in section 403 ITEPA 2003. The revised legislation applies to termination payments and benefits that meet all of the following criteria:

a) the payments, or benefits fall within section 401(1)(a) ITEPA 2003 i.e. they are received directly, or indirectly in consideration or in consequence of, or otherwise in connection with the termination of a person’s employment

b) the payments, or benefits are received on, or after 6 April 2018

c) the employment was ended on, or after 6 April 2018

d) the payments, or benefits are not statutory redundancy payments, or approved contractual payments to the extent that they are exempt under section 309 ITEPA 2003

e) the payments, or benefits are not chargeable to income tax by virtue of any provision other than in Chapter 3 of Part 6 ITEPA 2003

Termination payments and benefits, which meet all of the above criteria are ‘relevant termination awards’. These ‘relevant termination awards’ are split into 2 elements:

·         post-employment notice pay (PENP)

·         relevant termination awards subject to section 403 ITEPA 2003

The amount of post-employment notice pay is calculated using the PENP formula. The PENP formula is set out in the legislation at section 402D ITEPA 2003 (see EIM13880). Guidance on the application of this formula is available at EIM13880 to EIM13896.

https://www.gov.uk/hmrc-internal-manuals/employment-income-manual/eim12800

CASES: 

Chidzoy v. British Broadcasting Corporation [2018] UKEAT 0097/17

Claimant’s talk with journalist mid-hearing leads to strike out of claim

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Reuters Ltd v Cole UKEAT/0258/17

Additional claim under the Equality Act was not ‘re-labelling’ and could not be added

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Coletta v. Bath Hill Court (Bournemouth) Property Management Ltd [2018] UKEAT 0200/17

Six year limitation period did not apply to unlawful deductions claims before 1 July 2015 – some 15 years of back pay recoverable.

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Royal Mail Group Ltd v Jhuti [2018] UKEAT 0020_16

In a series of detrimental acts, one act must be in time for the series to be in time

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Pemberton v Inwood [2018] EWCA Civ 564

No discrimination against priest for refusing licence to officiate because of same sex marriage

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Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640

Date time runs for reasonable adjustments claim

Section 20(3) Equality Act 2010 provides that an employer must take reasonable steps to avoid any disadvantage resulting from a provision, criterion or practice.

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Capita Customer Management Ltd v. Ali [2018] UKEAT 0161/17

It is not directly discriminatory to pay man on shared parental leave at a lower rate than woman on maternity leave

Section 13(1) Equality Act 2010 provides that: ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.  […]

(6) If the protected characteristic is sex – […]

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Daniels & Another v Lloyds Bank plc v Another

High Court considers effect of a broad power to alter a party’s contractual rights to its detriment.

In this case Mr Daniels and Mr Tate sought summary judgment on claims against Lloyds in relation to ‘Integration Awards’ under the Bank’s LTIP plan.

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Morris-Garner & Anor v One Step (Support) Ltd [2018] UKSC 20

Breach of restrictive covenant - Wrotham Park damages reined in

The Supreme Court has ruled in Morris-Garner v One Step [2018] UKSC 20 (a claim concerning breach of restrictive covenants in a sale agreement) that Wrotham Park damages could not be claimed on the facts in this case.

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Hincks v Sense Network [2018] EWHC 533

Guidance for employers who provide regulatory references

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