Emplaw Monthly - End of June 2018

NEW AT EMPLAW ONLINE

What does the judgement in Pimlico Plumbers mean for employers?

A pithy article from Emplaw Online authors Shakespeare Martineau explaining the Supreme Court's decision and what it means

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Podcast - Discrimination arising from disability - what does an employer need to know?

A podcast by Jane Fielding, and Martin Chitty from Emplaw Online authors Gowling WLG, following the Court of Appeal decision in City of York Council v Grosset

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Working Time and Contractual Holiday - the cases and the law in a nutshell

Issues of carry-over of holiday and the calculation of holiday pay cause headaches every day for employers, employees and advisors. This article, updated following the latest cases, provides a straight forward summary of the up to date law on holiday entitlements. It examines the issues around carry over, including cases involving long term sickness and family leave and also how holiday pay is calculated

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NEWS

Senior President of Tribunals: Annual Report 2018 - includes key EAT case roundup

An interesting report which, in the section on Employment Tribunals (p46-54) discusses the impact of the abolition of fees (64% overall increase in new claims brought in employment tribunals, and a significant increase in the number of new appeals in the EAT)  and also gives a roundup of the key EAT cases from the Tribunal Presidents

https://www.judiciary.uk/wp-content/uploads/2018/05/spt-annual-report-2018-v3.pdf

Law firms must publish information on prices for employment tribunals

The Solicitor’s Regulation Authority have confirmed that law firms will be required to publish information on prices for employment tribunals for members of the public and small businesses, in connection with claims for unfair or wrongful dismissal.

Announced as part of the wider Looking to the Future programme, the SRA’s  ‘Better Information, more choice’ reforms are designed to improve public access to legal services by making information on price, protections and services more easily available.

The Better Information reforms will be submitted to the Legal Services Board for formal approval over the coming months but are expected to take effect from December 2018. 

http://www.sra.org.uk/sra/news/press/better-information-june-2018.page?src=rss

High Court grants IWGB permission to proceed with Deliveroo challenge but substitution clause distinguished from Pimlico Plumbers

The High Court has held that the express substitution clause in the Deliveroo case contracts was distinguishable from that in Pimlico Plumbers and the findings of fact meant that the Central Arbitration Committee had been entitled as a matter of law to find that riders are not “workers” within the relevant statutory definition. The CAC decision was that Deliveroo drivers were not workers for purposes of an application for union recognition.

However, the Court did grant permission for a judicial review of the CAC decision, on the ground that the CAC did not  properly engage with submissions that the definition of a “worker” in the Trade Union and Labour Relations (Consolidation) Act 1992 in the context of an application for trade union recognition must be interpreted in a manner compatible with Article 11 of the European Convention on Human Rights

See the press release from the IWGB

https://iwgb.org.uk/2018/06/15/high-court-judge-overturns-previous-decision-and-grants-iwgb-permission-to-proceed-with-deliveroo-challenge/

See a short article from Emplaw Online authors Lewis Silkin at

http://www.lewissilkin.com/News/High-Court-dismisses-Pimlico-Plumbers-challenge-to-Deliveroo-contract?utm_source=vuture&utm_medium=email&utm_campaign=22%20june

Employer guidance

New from Acas – guidance on the World Cup, overtime, suspension and a webinar on managing a disciplinary

Overtime guidance is found at http://www.acas.org.uk/index.aspx?articleid=4249

Suspension guidance is found at http://www.acas.org.uk/index.aspx?articleid=6548

Register for a free webinar in 5th July Acas - Managing a Fair Disciplinary Process at https://register.gotowebinar.com/register/272414292936637441

World Cup guidance

Acas has published world cup guidance for employers covering matters such as dealing with time off, sickness absence, websites and social networking, drinking or being under the influence at work

http://www.acas.org.uk/index.aspx?articleid=2953

Toolkit to tackle substance abuse

Public Health England and Business in the Community have published a toolkit for employers on drugs alcohol and tobacco use in the workplace. The toolkit is aimed at helping organisations support employees in making healthier choices. It highlights that effective policies on health and wellbeing at work adopt a whole person, whole system approach encompassing physical and mental health and are rooted in prevention and risk management.

https://wellbeing.bitc.org.uk/sites/default/files/bitc_phe_drugs_alcohol_tobacco_toolkit_-_final.pdf

Immigration Update – settlement scheme for EU citizens, new visa for entrepreneurs and exemptions for doctors and nurses

Home Office publishes details of settlement scheme for EU citizens

https://www.gov.uk/government/news/home-office-publishes-details-of-settlement-scheme-for-eu-citizens

Government announces changes to the UK Immigration Rules which will come into effect on 6 July 2018. These include exempting doctors and nurses from the annual Tier 2 (General) visa limit.

https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc1154-15-june-2018

A new visa for people wanting to start a business in the UK.

The Home Secretary has announced that  people who want to start a business in the UK will be able to apply for a new “start-up” visa,

https://www.gov.uk/government/news/new-start-up-visa-route-announced-by-the-home-secretary

Legislation

Time Off for Public Duties Order 2018 - volunteers in the criminal justice system

This Order amends the Employment Rights Act 1996 to grant unpaid time off work to four groups of volunteers in the criminal justice system, who all monitor conditions of those in custody.

https://www.legislation.gov.uk/uksi/2018/665/contents/made

Regulations to require large companies to justify the pay difference between their chief executive and their average worker

On 11 June 2018, the draft Companies (Miscellaneous Reporting) Regulations 2018 were published. The regulations affect company’s reporting obligations and include a requirement in regulation 19B for quoted companies with more than 250 UK employees to publish, as part of the directors’ remuneration report, the ratio of their CEO’s total remuneration to the 25th, 50th and 75th percentile full-time equivalent remuneration of their UK employees.:

If approved by Parliament in their current form, regulation 19 and others would come into force on 1 January 2019 and apply in relation to the financial years of companies beginning on or after 1st January 2019.

http://www.legislation.gov.uk/ukdsi/2018/9780111170298

Posting of Workers: European Parliament first reading position on amendments

The Enforcement Directive on the Posted Workers Directive was adopted by the European Parliament and Council on 15 May 2014. This aims to tackle abuse and fraud as well as reinforce the exchange of information. Implementing legislation was enacted in the UK in June 2016.

However, further EU proposals were made directed at achieving better protection of posted workers. The proposals would amend the original Posted Worker’s Directive and cover areas not covered by the Enforcement directive, in particular remuneration of posted workers, including in situations of subcontracting; rules on temporary agency workers; and long-term posting.

The agreed text was adopted by the Council at first reading on 21 June 2018

New provisions include

·         The maximum duration a posted worker can work before all provisions of the labour law of the host country must be met is 12 months, with a possible extension of six months (through a notification by the company to the competent authority in the host country)

·         The overall amount of remuneration (excepting reimbursements) received by a posted worker must meet the level of remuneration laid down in the host Member State

There is a useful background briefing paper at : http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/582043/EPRS_BRI(2016)582043_EN.pdf

And a tracker at https://eur-lex.europa.eu/procedure/EN/2016_70

Trade Secrets etc Enforcement Regulations 2018

The Trade Secrets etc Enforcement Regulations 2018 came into force on 9 June 2018.

The Regulations implement Directive (EU) 2016/943 of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (the Trade Secrets Directive). A number of the provisions of the Directive have already been implemented in the UK by the principles of common law and equity relating to breach of confidence in confidential information, statute and court rules. The instrument addresses those areas where gaps occur or where the implementation of the provisions of the Directive will ensure legal certainty, making the law more transparent and coherent across all of the UK’s jurisdictions with respect to proceedings concerning the unlawful acquisition, use or disclosure of a trade secret.

http://www.legislation.gov.uk/uksi/2018/597/pdfs/uksiem_20180597_en.pdf

 

Data Protection Update - the Act, the Regulations and more ICO guides

Data Protection Act 2018

Explanatory notes are now available.

https://www.legislation.gov.uk/ukpga/2018/12/pdfs/ukpgaen_20180012_en.pdf

The ICO is updating its guide but as yet the detailed update has not been published

https://ico.org.uk/for-organisations/data-protection-act-2018/

Data Protection Regulations 2018

These Regulations bring into force specified provisions of the Data Protection Act 2018. The remaining provisions will come into force on 23 July 2018.

https://www.legislation.gov.uk/uksi/2018/625/pdfs/uksi_20180625_en.pdf

ICO guides

The ICO has published/updated guidance on

Children and GDPR

Determining what is personal data

Data Protection by design and default

Automated decision making and profiling

 

Consultations and Reports

IR 35 consultation  - private sector compliance to be tackled

The government has launched a consultation on how to tackle non-compliance with the off-payroll working rules in the private sector.

The off payroll working rules known as IR35 ensure that people working through a personal service company who would have been employees if they had been engaged directly, pay broadly the same income tax and NICs as if they had been employed.

In April 2017, the government reformed these rules for engagements in the public sector making the engager liable for the tax liability and the government is now looking to the private sector

The consultation closes on 10th August

https://www.gov.uk//government/consultations/off-payroll-working-in-the-private-sector

BEIS committee launches inquiry into automation and the future of work

The Business, Energy and Industrial Strategy Committee has launched an inquiry on automation and the future of work, looking at its likely impact on UK businesses and the potential it has for productivity, growth and reindustrialisation.

The deadline for submissions is Friday 13 July 2018.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/business-energy-industrial-strategy/news-parliament-2017/automation-future-of-work-inquiry-launch-17-19/

GLAA launches Licensing Standards consultation

On 22 May 2018, the Gangmasters and Labour Abuse Authority (GLAA) launched a consultation on its Licensing Standards.

Businesses must apply for a GLAA licence before they supply workers to a GLAA regulated sector.

http://www.gla.gov.uk/media/3563/glaa-licensing-standards-consultation-may-2018.pdf

Report on Race Disparity Audit and Ethnicity Facts and Figures

In August 2016, the government launched its Race Disparity Audit which aimed to investigate data on outcomes by race and ethnicity across public services.

On 11 June 2018, the House of Commons Women and Equalities Committee published a report on the Audit . It concludes there is much to do and it recommends that Government departments must have clear and measurable plans for improving the consistency and robustness of the data and turning it into a set of cross-government priorities for action.

Information on the report is at

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/rda-report-published-17-19/

Data collected by government about the different experiences of people from a variety of ethnic backgrounds is now in one place, at the Ethnicity Facts and Figures website

https://www.ethnicity-facts-figures.service.gov.uk/

How to present gender pay gap figures

The government has published findings of a trial to understand how different ways of presenting gender pay gap figures affect understanding and attitudes.

https://www.gov.uk/government/publications/presenting-gender-pay-gap-figures-to-the-public-an-online-trial

Fathers in the workplace – recommendations of the Women and Equalities Committee stalled

As reported in Emplaw Monthly for March 2018, the Women and Equalities Committee published a report with a number of far reaching recommendations focussed on improving the rights of fathers in the workplace.

For example it included a  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.

On 18 June 2018, the government published its response which stated that further consultation was needed before they could accept the Committee's key recommendation .In particular it identified the following next steps.

·         The government said it would seek more views on paternity leave and pay in a forthcoming 2018 Maternity and Paternity Rights Survey.

·         Regarding flexible working, a taskforce consisting of employer and employees reps had been created to develop an action plan to tackle the barriers and challenges around each stage of the employment lifecycle

·         The views of the taskforce would feed into an evaluation of the right to request flexible working which is due in 2019

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/

 

CASES: 

Mbubaegbu v. Homerton University Hospital NHS Foundation Trust (Rev 1) [2018] UKEAT 0218/17

Summary dismissal for a first offence based on a series of acts was fair.

Mr Mbubaegbu was an orthopaedic surgeon who was employed for over 15 years until his dismissal for gross misconduct. Prior to his dismissal he had an unblemished career and was highly regarded by colleagues.

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Case Summary Tag: 

Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29

Plumber was a ‘worker’

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Hafal Ltd v. Lane-Angell [2018] UKEAT 0107/17

Volunteer was not employed under umbrella contract of employment

Ms Lane-Angell was employed on a ‘bank basis’ with no guaranteed hours of work. In this case the main issue before the ET was whether the nature of the engagement was such that there was sufficient or any ‘mutuality of obligation’ to create a contract of employment.

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Case Summary Tag: 

Reading Borough Council v James & Ors [2018] UKEAT 0222/17

Equal pay: No requirement for fresh comparator when old comparator is promoted

This appeal raises a short point of law concerning the temporal scope of a pay comparison in proceedings based on equal pay for work of equal value brought under the Equal Pay Act 1970.

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Brown v Colt Technology Services Ltd [2018] UKEAT 0023/17

The impact of permanent health insurance on compensation for discrimination.

Mr Brown succeeded in certain claims of harassment and discrimination and in relation to certain failures to make reasonable adjustments. The decision of the ET following a remedies hearing was appealed by the employer and was also the subject of an appeal and cross-appeal by Mr Brown. 

On the various issues for determination:

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Montero Mateos [2018] C-677/16 and Grupo Norte Facility SA v Moreira Gomez C/574/16

A lower rate of termination payment for fixed term workers than permanent workers was not a breach of the Fixed Term Worker Directive

This request for a preliminary ruling in two joined cases concerns the interpretation of Clause 4(1) of the framework agreement on fixed-term work 1999/70/EC (‘the Framework Agreement’).

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Roddis v Sheffield Hallam University [2018] UKEAT 0299/17

Zero hours worker can compare himself to full time permanent worker under Part Time Worker Regulations

In this case, the EAT held that a worker employed under an associate lecturer's contract of employment described by the ET as a zero-hours contract, was employed under the same type of contract as a lecturer on a full-time contract for the purposes of Regulation 2(2) and 2(4)(a)(i) Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

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Unite the Union v Nailard [2018] EWCA Civ 1203

Union liable for discriminatory acts of its lay officials who were employed by another party

This claim concerns claims for sex discrimination and harassment and the issue of a union’s liability for the acts of its lay officials.

Ms Nailard was employed as a regional officer for Unite and in 2013 she transferred to its Heathrow office. Her immediate line manager was Mr King, the senior regional officer.  Senior to him were Mr Kavanagh, the regional secretary, and Mr Murray, the Union's chief of staff.  These were all employees of the Union.

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Morris v Metrolink RATP Dev Lyd [2018] EWCA Civ 1358

Trade Union activities in the context of automatically unfair dismissal

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Case Summary Tag: 

The Fire Brigades Union V South Yorkshire Fire And Rescue Authority [2018] EWHC 1229 (Admin)

Breach of WTR rest periods

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