Emplaw Monthly - End of September 2018


FLEXIBLE WORKING UPDATE – new initiatives and possible reform

Promotion of flexible working is seen by government as a key tool in addressing the Gender Pay Gap and in supporting carers in the workplace,
As such it is one of the recommended actions in the ACAS and the Government Equalities Office (GEO) toolkit on the pay gap information regulations and Emplaw Online understands from the GEO that more webinars and workshops are in the pipeline.

Meanwhile the Carers Action Plan highlights that The Department of Health and Social Care is working with Timewise Foundation on a project to promote best practice in the use of employment flexibilities to support carers.  A recent Timewise survey included the following specific suggestions, made by part-time workers::

  • schedule team meetings, social events and client lunches on days when part-time workers are in (rotating the days of the week if needed, to give everyone a chance to attend)
  • try peer-to-peer networking opportunities for part-time workers
  • offer part-time workers access to training budgets and opportunities to upskill
  • introduce tactics to help teams connect more easily – eg catch-up Skype calls, a WhatsApp group
  • foster top down acceptance of the valuable contribution that part-time workers make to the business.

As proposed in the Government’s response to the Taylor Review of modern employment practices, the Department for Business Energy and
Industrial Strategy has set up a flexible working taskforce. Its aim is to tackle issues around flexible working that are key to
improving the recruitment, retention and progression of informal carers and other groups.

There will also be an evaluation of the right to request flexible working which will take place in 2019. The current scheme gives employees the right to request flexible working, requiring that the employer deals with the request reasonably and only rejects for specific business reasons listed in the legislation. A point of discussion is whether the right should be tipped more in the employee’s favour







Post Taylor Review Consultations update – TUC and CBI input

Readers will recall that the government set up the following four consultations following its response the Taylor review, 

All of these have now closed and the government is analysing the feedback.

The TUC submissions are at:


The CBI submissions are at:




Parental Bereavement (Leave and Pay) Act 2018 receives Royal assent

The Parental Bereavement (Leave and Pay) Bill 2018 has obtained Royal Assent with the new rights expected to come into force in 2020.
The Act will give a new workplace right to two weeks’ leave to bereaved parents who lose a child under 18 or suffer a stillbirth from 24 weeks of pregnancy.at the statutory flat rate (currently £140.98 a week) or 90% of average earnings (whichever is lower). In line with other entitlements to paid statutory leave, the Act allows provision to be made for employers to reclaim payments from the Government.



NIC reform - Class 2 for self-employed not to be abolished but other changes on track

In the November 2017 budget, the chancellor confirmed that the abolition of Class 2 NICs, reforms to the NICs treatment of termination payments, and changes to the NICs treatment of sporting testimonials would take effect from April 2019 (one year later than anticipated).

On 6 September 2018, the government announced that it would not proceed with the proposed abolition of Class 2 NICs for self-employed workers during the current Parliament. The measure was aimed at simplifying NIC treatment for the self-employed and bringing them more into line with those paid by employees, but a review has found that it would add complexity and impose a heavier burden on self-employed workers with low profits.

The NICs treatment of sporting testimonials remains on track as do the NIC changes whereby Class 1A (employer’s only) NICs will apply to the non-PENP element of a termination payment to the extent that it exceeds £30,000. from April 2019.



CIPD and MIND mental health guide

The CIPD and the mental health charity MIND have jointly published a mental health guide for managers to improve support for those experiencing stress and mental health issues at work.
The updated guidance follows recent CIPD research that less than one in three organisations train line managers to support staff with poor mental health.
Mental ill health is now the primary cause of long-term sickness absence for over one in five (22%) UK organisations. A recent Mind survey of over 44,000 employees also found that only two in five (42%) felt their manager would be able to spot the signs they were struggling with poor mental health.


Whistleblowing - PCaW becomes Protect

Public Concern at Work, the whistleblowing charity, has changed its name to Protect.




Consultation on employment law hearing structures - including limit on  ET jurisdiction in contract cases

The Law Commission has published a consultation paper on employment law hearing structures. Consultation closes on 11 January 2019.
There are few proposed changes other than, for example, whether ETs should be given concurrent jurisdiction over non-employment discrimination claims and whether the £25000 limit on the employment tribunal’s jurisdiction in contract cases should be increased.



ET quarterly statistics

The Ministry of Justice has published quarterly tribunal statistics April to June 2018.
Her Majesty’s Courts & Tribunals Service (HMCTS) recorded an increase in receipts in April to June 2018, up 34% when compared to the same quarter in 2017. Disposals decreased slightly (1%) in the same period and caseload outstanding increased by 24%.















Agarwal v Cardiff University & Ors [2018] EWCA Civ 2084

ET has jurisdiction to construe contract for deduction of wages claim

This case concerns two appeals about the jurisdiction of the ET to resolve disputes about the construction of a contract of employment in the context of a claim for unauthorised deduction from wages under Part II of the Employment Rights Act 1996 (Sections 13-27)  A part from that common point, each appeal raised distinct issues.

Section 13 ERA 1996 provides:

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Nicholls (the BMA Appellants) & Anor v London Borough Of Croydon & Ors [2018] UKEAT 0003/18

Transfer of public health team was a TUPE transfer

 Reg. 7(1) of the TUPE Regulations provides: 

“(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is - 

(a) the transfer itself; or 

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Case Summary Tag: 

East Kent Hospitals University NHS Foundation Trust v Levy [2018] UKEAT 0232/17

Employee’s resignation did not terminate contract – she had resigned from position in department rather than from her employment

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Morrison v Aberdein Considine & Company [2018] UKEAT 0018/17

Partner in Scottish law firm was not an employee

Ms Morrison, a solicitor, had for many years been a “salaried partner” in Aberdein Considine, a Scottish law firm. She raised a number of claims, some of which required her to have been an employee of the firm in order for the ET to have jurisdiction to deal with them. The ET determined after a hearing that she was not an employee but was a partner. In contrast to English law, under Scottish law a person cannot be both an employee and a partner.

Ms Morrison appealed, contending that the ET had erred in approach.

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Serious Fraud Office (SFO) v Eurasian Natural Resources Corp. Ltd [2018] EWCA Civ 2006

Court of Appeal  guidance as to the scope and application of Legal Professional Privilege

In this case, ENRC has won its appeal against a decision requiring it to hand over documents prepared by an external law firm to the Serious Fraud Office.

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IR v JQ Case C-68/17

ECJ rules on occupational requirement and Catholic doctor dismissed for re-marriage

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Rana v London Borough of Ealing & Anor [2018] EWCA Civ 2074

Rightful use of EAT's discretion to extend time for appeals to the EAT where ET reasons were mis-sent


The provision governing the time limit for appeals to the EAT is rule 3(3) of the EAT Rules 1993 (as amended). The rule is rather elaborate, because it deals separately with a variety of different ways in which the ET's judgment or the reasons for it may be promulgated. The relevant part reads:

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