Emplaw Monthly - End of May 2018

New at Emplaw Online

Where Maternity Pay is enhanced and Shared Parental Pay isn’t – what are the risks of discrimination?

Click here for a short article from Emplaw Online considering the latest cases on whether paying ShPP at statutory rates and Maternity Pay at enhanced rates, amounts to direct or indirect discrimination and what this means for employers.
It also links to a blog from Rachel Cransnow QC giving more insight into the most recent case of Hextall v Chief Constable of Leicestershire Police. Rachel is a barrister at Cloisters, a set which provides expert content for Emplaw Online in topics including TUPE, Unfair Dismissal and ET and EAT procedure

Avoid the pension traps in employee settlement agreements

The Combined Human Resources Solutions team at Gowling WLG seek to address some of the more frequently asked questions that arise  in relation to pensions and settlement agreements and a give a series of top tips
Gowling WLG  provides expert content on Pensions for Emplaw Online.
Click here for the article

Don't forget for subscribers- GDPR for employers

Up-to-date 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. Click here

A data protection policy for employees is available - click here for more information


Employment law news

Itemised payslips to all workers

An Order has been made which extends the right to itemised payslips and associated enforcement provisions to all workers. The Order will come into force on 6 April 2019. Presently, only employees are entitled to this right.

http://www.legislation.gov.uk/uksi/2018/529/contents/made

Equality Updates - Handbook for Advisors, Dress Codes and Religion and Belief

The Equality and Human Rights Commission (EHRC) has updated its handbook for Advisors on the Equality Act 2010. It includes a brief but useful checklist and is designed an reference guide on the key concepts

https://www.equalityhumanrights.com/sites/default/files/equality-act-2010-handbook-for-advisers.pdf

The Government Equalities Office meanwhile has published a guide entitled Dress codes and sex discrimination –what you need to know

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709535/dress-code-guidance-may2018-2.pdf

And Acas has published guidance on Religion or belief discrimination: key points for the workplace. It explains what it is, how it can happen, considerations for everyone and handling complaints

http://www.acas.org.uk/media/pdf/a/p/Religion-or-belief-discrimination-key-points-for-the-workplace.pdf

CAP consultation on gender stereotypes

The Committees of Advertising Practice (CAP) has launched a public consultation on a new rule to tackle harmful gender stereotypes in advertisements, as well as on guidance to advertisers on how the new rule is likely to be interpreted in practice.

https://www.asa.org.uk/news/consulting-on-a-new-rule-to-tackle-harmful-gender-stereotypes.html

Reducing worker exploitation – reports from the Director of Labour Market Enforcement and the GLAA as well as analysis of implementation of the Modern Slavery Act

Labour market enforcement strategy published

The Director of Labour Market Enforcement, Sir David Metcalf, has published his first full strategy document, following the consultation launched last year

The government’s Director of Labour Market Enforcement (a role created by Immigration Act 2016 to improve labour market enforcement) has set out the strategic priorities for the government’s three enforcement agencies, namely

  • HMRC’s National Minimum Wage (NMW) enforcement team
  • the Gangmasters and Labour Abuse Authority (GLAA)
  • the Employment Agency Standards Inspectorate (EAS)

The report includes a very interesting and details overview of the UK employment market.  It also makes some 37 recommendations including

  • HMRC NMW/NLW team should develop a more supportive approach when companies ask for advice in order to be compliant.
  • Employers should provide all workers and employees with a written statement as a statutory duty within a week (a Taylor Review recommendation considered as part of the Transparency consultation)
  • Greater penalties as a deterrent against non-compliance. The NMW penalty multiplier should be reviewed
  • HMRC, or another appropriate state body, should be provided with the powers and remit to take responsibility for the enforcement of holiday pay for all workers, including mechanisms to recover holiday pay arrears. In the interim, EAS and GLAA should make use of their existing enforcement frameworks to investigate holiday pay as a matter of priority
  • EAS should be given the power and more resources to enforce the Agency Worker Regulations 2010 (including the Swedish Derogation),

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705503/labour-market-enforcement-strategy-2018-2019-full-report.pdf

GLAA report on labour exploitation

Meanwhile the Gangmasters and Labour Abuse Authority (GLAA) has published a comprehensive report on the Nature and Scale of Labour Exploitation across all Sectors within the United Kingdom. The report identifies the industries where exploitation is most prevalent and the relevant contextual factors as well as the nationalities most at risk.

http://www.gla.gov.uk/media/3537/external-nature-and-scale-of-labour-exploitation-report-final-version-may-2018.pdf

Modern Slavery Reports

The House of Commons Work and Pensions Committee reported on the Victims of Modern slavery in April 2017 and a critical assessment of the implementation of the provisions of the Modern Slavery Act was made by The Public Accounts Committee in its final report entitled Reducing Modern Slavery

https://publications.parliament.uk/pa/cm201617/cmselect/cmworpen/803/803.pdf

https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/886/886.pdf

Post Taylor review – consultations update and closing dates

Employment Status Consultation – closes 1st June 2018

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679853/FINAL_-_Employment_Status_consultation_-_FOR_UPLOADING_and_PRINTING.pdf

Increasing transparency in the labour market – closed 23rd May

https://www.gov.uk/government/consultations/increasing-transparency-in-the-labour-market

Agency workers recommendations – closed 9th May

https://www.gov.uk/government/consultations/agency-workers-recommendations

Enforcement of employment rights recommendations – closed 16th May

https://www.gov.uk/government/consultations/enforcement-of-employment-rights-recommendations

Whistleblowing update - EC proposal on Directive and NHS Regulations in force

The European Commission has adopted a package of measures to protect whistleblowers who report breaches of EU legislation on a number of areas, including a proposal for a Directive. Those interested can give feedback via the EU commission website

http://ec.europa.eu/info/law/better-regulation/initiatives/com-2018-218_en

http://europa.eu/rapid/press-release_IP-18-3441_en.htm

Meanwhile, the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 come into force on 23rd May. They are rooted in the Freedom to Speak Up Review which in 2014 identified that current laws did not provide protection to an applicant being discriminated against by a potential employer during a recruitment exercise because the employer believes they have previously made a protected disclosure.  These regulations prohibit certain NHS public bodies from discriminating against an applicant in those circumstances.

http://www.legislation.gov.uk/uksi/2018/579/made

Trade Secrets Regulations

The government has laid the Regulations before Parliament, to come into force on 9th June. They follow publication of the government’s response to consultation on the Regulations together with a summary of responses.

The Regulations are a result of the EU Trade Secrets Directive (2016/943) which requires Member States to establish a minimum level of protection of trade secrets by 9 June 2018. Whilst UK law is fairly robust in this area, the Regulations introduce a statutory definition of trade secret and other changes. The original consultation document provides useful context

https://www.gov.uk/government/consultations/draft-regulations-concerning-trade-secrets

http://www.legislation.gov.uk/uksi/2018/597/made

GDPR Update – guidance for solicitors, from Acas, ICO and the European Commission

GDPR for solicitors

The Law Society and Law Society of Scotland have both issued specific guidance for Law Firms

http://www.lawsociety.org.uk/support-services/practice-management/gdpr-preparation/preparing-for-the-gdpr-a-guide-for-law-firms/

https://www.lawscot.org.uk/members/business-support/gdpr-general-data-protection-regulation/gdpr-guide/

Acas overview for employers

Acas has a summary overview for employers with sections such as Monitoring employees and How can employers comply with the regulation?

http://www.acas.org.uk/index.aspx?articleid=3717

ICO updates including enforcement, consent and privacy notices

Enforcement by the ICO

Following changes brought in by GPDR, including the ability to levy far higher penalties for breach, the ICO has updated its Regulatory Action Policy and it is out for consultation until 28th June 2018.

There is a helpful background blog to the consultation found here

https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/draft-regulatory-action-policy/

 ‘Consent’ as a lawful ground for holding data

The ICO has published its final version of guidance on consent under the new Data Protection Bill, which implements the General Data Protection Regulation (GDPR).

Firms will welcome this guidance since the issue of consent has proved to be a complex one. It addresses why consent is important, when it is appropriate and, importantly, what constitutes valid consent. It also provides useful guidance on obtaining, recording and managing consent.

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

Privacy notices

The ICO has published detailed guidance on the right to be informed.

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

Data Protection Impact Assessments (DPIAs)

Whilst not always required, DPIAs are often good practice. The ICO has published detailed guidance.

Data Protection Impact Assessments (DPIAs)

What’s new?

Continue to reference the What’s new section of the ICO guidance on GDPR for the latest updates

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

European Commission: seven steps to get GDPR-ready

The European Commission has published a document ‘seven steps for businesses to get ready for the General Data Protection Regulation. The guide is aimed at companies that do not handle personal data as a core business activity, such as SMEs.

https://ec.europa.eu/commission/sites/beta-political/files/data-protection-factsheet-business-7-steps_en.pdf

Senior Managers regime - executive fined £642,430

A salutary lesson was learned by Barclays Group and its chief executive James Staley who was fined by the FCA and the PRA a total of £642,430 for his failure to act with due skill, care and diligence in the way he acted in response to an anonymous letter received by Barclays in June 2016. Mr Staley had attempted to identify the author of the letter claiming to be from a Barclays shareholder. The letter contained various allegations, some of which concerned Mr Staley. Given his conflict Mr Staley should have maintained an appropriate distance; he should not have taken steps to identify the author. Mr Staley should have explicitly consulted fully with those with expertise and responsibility for whistleblowing in Barclays.

The investigation found this to be a breach of the requirement to act with due skill, care and diligence (individual conduct rule 2) but not a breach of the requirement to act with integrity (individual conduct rule 1).

Barclays was also made subject to special requirements under which it must report annually to the regulators detailing how it handles whistleblowing, including personal attestations from those senior managers responsible for the relevant systems and controls. This is the first case brought under the senior managers regime. While Mr Staley made no personal gain, both regulators viewed his conduct as sufficiently serious for each to impose a penalty of 10% of Mr Staley’s relevant annual income. Mr Staley was also censured by the publication of the regulators’ Final Notices.

https://www.fca.org.uk/news/press-releases/fca-and-pra-jointly-fine-mr-james-staley-announce-special-requirements

CASES: 

Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24

Oral variation ineffective when contract includes ‘no oral modification’ clause

 

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Case Summary Tag: 

Bakkali v. Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) [2018] UKEAT 0176_17

Remark about ‘IS’ was not religious discrimination

 

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Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22

Written notice of termination effective when letter comes to attention of employee

 

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City of York Council v Grosset [2018] EWCA Civ 1105

Discrimination arising from disability claim upheld – no requirement for employer to know that behaviour arose from the claimant's disability

 

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Addison Lee Ltd v Gascoigne UKEAT/0289/17

There was an obligation to work, making cycle courier a ‘worker’

 

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Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978

‘Last straw’ doctrine for constructive dismissal

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