Emplaw Monthly - End of July 2018

NEW AT EMPLAW ONLINE

Court of Appeal in Mencap: The end of minimum wage for sleep-ins when asleep?

Emplaw Online author, Nathaniel Caiden from Cloisters considers the impact of the recent Court of Appeal judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad

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European Commission puts business on Brexit amber alert

A useful article from Emplaw Online authors Gowling WLG on the Communication from the EC that outlines the steps that the EU 27 and businesses should take to prepare for Brexit. Click here 

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EMPLOYMENT LAW NEWS

Hot temperatures in the workplace - TUC blog and Acas guide

There is currently no prescribed legal maximum temperatures for the workplace and the TUC blog sets out the risks this presents. Meanwhile the Acas guide on Working Temperatures explains the law

http://m.acas.org.uk/index.aspx?articleid=5791

https://www.tuc.org.uk/blogs/why-it%E2%80%99s-time-change-law-hot-workplaces

Women and Equalities Committee workplace reports

Sexual harassment in the workplace - report following #MeToo movement

The Women’s and Equalities Parliamentary select committee has published its report following the #MeToo movement. The report criticises insufficient enforcement action by employers and regulators in the area of sexual harassment and also includes criticism of practices including non-disclosure agreements to silence victims. Its recommendations include that  a new duty on employers to avoid sexual harassment in the workplace be introduced supported by a Code of Practice and  that Non- Disclosure agreements should be required to be set out in plain English and whistleblowing protections should be extended so that disclosures to the police and regulators such as the Equality and Human Rights Commission are protected.

https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/72503.htm#_idTextAnchor000

Report on older people in employment

This report from the Women’s and Equalities Parliamentary  committee states that the business case for an age-diverse workforce is clear. The report
• criticizes the Government and the Equality and Human Rights Commission for taking insufficient enforcement actions in respect of existing discrimination laws
• calls on recruitment agencies to accept greater responsibility, collecting data on where older workers are being excluded and developing a plan of action to remove discrimination from the recruitment process
• recommends that flexible working be the default from the time jobs are advertised onwards and the government should introduce a statutory entitlement to five days’ paid carer’s leave, and a longer period of unpaid leave, to help stop those caring for a loved one falling out of the labour market unnecessarily

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

Government response to consultation on caste discrimination within UK law

The government has published its response which concludes that the best way to provide the necessary protection against unlawful discrimination because of caste is by relying on emerging case-law as developed by courts and tribunals. In particular, given the EAT judgment in Tirkey v Chandhok, the government believes that it is likely that anyone who believes that they have been discriminated against because of caste could bring a race discrimination claim under the existing ethnic origins provisions in the Equality Act 2010.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/727790/Caste_in_Great_Britain_and_equality_law-consultation_response.pdf

LGBT action plan from the GEO

The Government Equalities Office has published a LGBT action plan which will eradicate the ‘abhorrent practice’ of conversion therapy in the UK as part of anew 75-point action plan to tackle discrimination and improve the lives of lesbian, gay, bisexual and transsexual people in the UK.

https://www.gov.uk/government/news/new-government-action-plan-pledges-to-improve-the-lives-of-lgbt-people--2

Right to work checks update

The Home Office has published updated guidance on right to work checks for employers. It cannot be underestimated how important it is for employers to follow this guidance to the letter if they are to avoid substancial fines in the event they employ an illegal worker

The most significant updates contained in the recent update relate to:

  • steps employers should take if, in carrying out a right to work check, they consider a prospective employee presents information indicating they are a non-EEA national who has been a long-term lawful resident of the UK since before 1988, and does not possess acceptable right to work documentation;
  • further clarification on appropriate steps for employers in relation to existing employees
  • clarification of the grace period in cases of Transfer of Undertakings (Protection of Employment) transfers
  • ending restrictions on the employment of Croatian nationals with effect from 1 July 2018.

Emplaw Online's section on Recruitment contains essential reading for employers

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/720858/29_06_18_Employer_s_guide_to_right_to_work_checks.pdf

Acas annual report

Acas has published its annual report 2017/18 which discloses that there has been a 30% increase in ET claims notifications in the year to end March 2018.

http://www.acas.org.uk/media/pdf/m/2/Acas-annual-report-2017-2018.pdf

Brexit

White Paper- what does it mean for the trade of goods and services?

As widely reported, the UK government has published a white paper setting out its vision for the future UK/EU relationship post- Brexit. In what now appears to be a fast-changing sphere, the government’s proposals for financial services include a new economic and regulatory arrangement with the EU. The government aims to preserve the mutual benefits of integrated markets and protecting financial stability while respecting the right of the UK and the EU to control access to their own markets – noting that these arrangements will not replicate the EU’s passporting regimes. It remains to be seen what the EU will officially make of the proposals.

The new arrangements are different from those proposed as regards to trade in goods where a free market area is to be sought. The theory is that the proposals as regards trade in services would maintain the economic benefits of cross- border provision of the most important international financial services traded between the UK and the EU – those that generate the greatest economies of scale and scope – while preserving regulatory and supervisory cooperation, and maintaining financial stability, market integrity and consumer protection. The new arrangement would be based on the principle of autonomy for each party over decisions regarding access to its market, with a bilateral framework of treaty-based commitments to underpin the operation of the relationship, ensure transparency and stability, and promote cooperation.

The UK proposes that there should be reciprocal recognition of equivalence under all existing third country regimes, taking effect at the end of the implementation period. This reflects the reality that all relevant criteria, including continued supervisory cooperation, can readily be satisfied by both the UK and the EU.

Reportedly the UK proposals have been described as ‘cake’ by EU insiders and to get a general insight into EU thinking, it is interesting to read the article by Emplaw Online authors Gowling WLH above.

https://www.gov.uk/government/publications/the-future-relationship-between-the-united-kingdom-and-the-european-union

European Union (Withdrawal) Act 2018 receives Royal Assent

The Act repeals the European Communities Act 1972 (ECA) on the day the United Kingdom leaves the European Union. It ends the supremacy of European Union (EU) law in UK law, converts EU law as it stands at the moment of exit into domestic law, and preserves laws made in the UK to implement EU obligations. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left. The Act also enables domestic law to reflect the content of a withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal

Employment, Social Policy etc Council adopts Posting of Workers Directive

The Employment, Social Policy, Health & Consumer Affairs Council has formally adopted an amended posting of workers Directive. The revised Directive 2018/957 EU will come into force 20 days after publication in the Official Journal. Publication took place on 9 July 2018. This means that member states will have to adopt and publish, by 30 July 2020, the laws, regulations and administrative provisions necessary to comply with the Directive. Measures must apply from this date.

The aim of the revised Directive is to facilitate the transnational provision of services, whilst ensuring fair competition and respect for the rights of those workers who are employed in one member state and sent to work temporarily in another by their employer (posted workers).

More specifically, the directive aims at ensuring fair wages and a level playing field between posting and local companies in the host country whilst maintaining the principle of free movement of services.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2018.173.01.0016.01.ENG&toc=OJ:L:2018:173:TOC

http://www.consilium.europa.eu/en/press/press-releases/2018/06/21/posting-of-workers-council-adopts-the-directive/

Corporate Governance Code 2018

The Financial Reporting Council (FRC) has published the 2018 UK Corporate Governance Code which focuses on the application of the Principles in the Code. In the FRC’s own words this is a ‘shorter, sharper Code’ which calls on listed companies to report clearly and meaningfully and to avoid a tick-box approach. The Provisions are intended to establish good practice on a ‘comply or explain’ basis.

The Code applies to all companies with a premium listing and will apply to accounting periods beginning on or after 1 January 2019. This means that first reporting will take place in 2020 unless any firms adopt part or all of the Code early. The Financial Conduct Authority is reviewing its Handbook to assess whether any consequential amendments are necessary.

The FRC has also published updated and expanded guidance on the Code which should be referred to by boards alongside the Code, although the guidance is not binding.

The new Code can be read here: https://www.frc.org.uk/getattachment/88bd8c45-50ea-4841-95b0-d2f4f48069a2/2018-UK-Corporate-Governance-Code-FINAL.PDF

The guidance to the Code can be read here: https://www.frc.org.uk/getattachment/61232f60-a338-471b-ba5a-bfed25219147/2018-Guidance-on-Board-Effectiveness-FINAL.PDF

FCA and PRA policy statements on extension of the senior managers and certification regime to all regulated firms and insurers

The FCA has published policy statements and near-final rules on extending the SMCR to all regulated firms and to insurers and the PRA has published a policy statement and near-final rules on extending the regime to insurers. There are few significant changes from the consultation papers.

https://www.fca.org.uk/publication/policy/ps18-14.pdf

https://www.fca.org.uk/publication/policy/ps18-15.pdf

https://www.fca.org.uk/publication/policy/ps18-16.pdf

https://www.bankofengland.co.uk/prudential-regulation/publication/2018/strengthening-individual-accountability-in-insurance-extension-of-the-smcr-to-insurers

Consultation on directory of financial services workers

The Financial Conduct Authority has published a consultation paper CP 18/19 on a new directory of financial services workers which would sit alongside the Financial Services Register (which is a public record of regulated firms and approved persons). The new directory will include information about a broader range of individuals working for regulated firms.

https://www.fca.org.uk/publication/consultation/cp18-19.pdf

 

 

CASES: 

Royal Mencap Society v Tomlinson-Blake / Shannon v Rampersad [2018] EWCA Civ 1641

Only time spent awake and working counts for NMW purposes

Section 1 of the National Minimum Wage Act 1998 (NMWA) creates the right for a worker to be paid, in any "pay reference period", the national minimum wage ("NMW") in the form of an hourly rate of remuneration, to be prescribed from time to time by the Secretary of State. The pay reference period is prescribed by the Secretary of State: for present purposes, typically a week or a month. 

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Patel v Folkestone Nursing Home Ltd (Rev 1) [2018] EWCA Civ 1689

Successful appeal against dismissal means contract of employment continues

This appeal is concerned with the legal effect of a contractual disciplinary appeal procedure in an employment contract in relation to the dismissal of an employee for misconduct, whose appeal is then allowed by the employer pursuant to that procedure. 

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Flowers & Ors v. East of England Ambulance Trust [2018] UKEAT 0235_17

Holiday pay based on what employee would have earned if they were at work

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Bou-Simon v BGC Brokers LP [2018] EWCA Civ 1525

Term was not so obvious that it should be implied

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Case Summary Tag: 

Ali v. Torrosian & Ors [2018] UKEAT 0029

GP Practice should have considered part-time working as alternative to dismissal of long-term sick employee

The question raised by this appeal is whether the ET failed to take into account a relevant factor when carrying out the proportionality exercise required under section 15 of the Equality Act 2010 ("EqA") (see extract below), namely its finding as to the failure to make an offer of part-time work.

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Afzal v East London Pizza Ltd (t/a Dominos Pizza) [2018] UKEAT 0265

Appeal should have been allowed to verify status to work in the UK

An employer is liable to prosecution and to the payment to substantial civil penalties for employing a person who has no right to work. The relevant criminal offences in August 2016 were section 21(1) and section 21(1A) of the Immigration, Asylum and Nationality Act 2006:

"21. Offence

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Case Summary Tag: 

Ms E Leyland and Others v Hermes Parcelnet Ltd [2018] UKET 1800575/2017

Couriers were workers

This case is an ET decision that couriers working for Hermes were ‘workers’ despite being classified as self-employed.

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Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436

Disclosure of ‘information’ for whistleblowing purposes

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