Emplaw Monthly - End of October 2018

New at Emplaw Online

Refusal to provide cake supporting gay marriage was not direct sexual orientation discrimination

An article from Emplaw Online authors, Lewis Silkin giving a very clear summary of the Lee v Ashers Baking Company Ltd case, its implications and a link to the full case report.

Click here for the article.

The Trade Secrets (Enforcement, etc) Regulations 2018

In an article for Employment Lawyers Association, Toni Lorenzo, from Emplaw Online authors, Lewis Silkin, discusses the Trade Secrets (Enforcement, etc) Regulations 2018 which came into force in June, implementing the EU Trade Secrets Directive. This is the first time that the UK Parliament has legislated for the protection of trade secrets.

Click here for more

You are invited…..

Mind the Gap – Are we moving closer to true gender balance at work?

Free seminar from Emplaw Online authors, Moorcrofts, which, as well as looking at the legal issues behind gender pay gap reporting, will explore, with help from industry experts, practical ways to make real inroads into addressing gender imbalance within the workplace.

The seminar takes place on 28th November, near Marlow, Bucks and is suitable for: HR professionals, senior managers and business owners.

For more information and to book, please click here


Government considering additional  flexible working duties on employers and requiring employers with more than 250 staff to publish their parental leave and pay policies

The Business Secretary Greg Clark government has set out a series of plans aimed at  strengthening the UK’s business environment, including:

  • tipping: new legislation will be introduced at the earliest opportunity ensuring that tips left for workers will go to them in full-
  • more protection for small businesses: the government will strengthen the Prompt Payment Code
  • proposals to help parents and carers in the workplace: the government will consider creating a duty for employers to consider whether a job can be done flexibly and make that clear when advertising.
  • greater transparency on parental pay: the government will consult on requiring employers with more than 250 staff to publish their parental leave and pay policies,  .


Why the Budget may shift liability under IR35 to employers in the private sector

Following the closure of the consultation on Off-payroll working in the private sector, it is understood the budget may introduce measures to shift liability under IR35 to employers in the private sector. A key issue is that where an individual in paid via a limited company, the individual will generally extract the money, partly as PAYE salary but largely through company dividends, which do not attract employer's national insurance.

The factsheet which went with the consultation reveals the government's thinking, at least at that point. It estimates that the cost of non-compliance in the private sector is growing and will reach £1.2 billion a year by  2022/23 and states that measures are needed 'to protect tax receipts needed to run our public services'. It also seeks to rebuff rumours that  the reform in the public sector (introduced in April 2017) has gone badly.

For background information and details about the reforms in the public sector, please see the Emplaw Online article IR35 reform – public sector



Employers' responsibility for data leaks - the lawyers' views on the Morrisons ruling 

As widely reported, the Court of Appeal upheld a verdict that could make employers vicariously liable for employees’ actions even if they had taken preventative steps and bore no criminal responsibility.

The claim, brought as a group action by some 5000 employees,arose out of the actions of a disgruntled internal auditor at Morrison’s Bradford headquarters who leaked payroll data so that it was posted online. 

Lawyers' views remain divided on whether such activity was truly in the course of employment or a frolic of the employee's own - see for example those reported in the Law Society Gazette linked below. Morrisons have said it will seek leave to appeal to the Supreme Court. 



Measures to tackle barriers facing ethnic minorities including consultation on ethnicity pay reporting

A series of measures have been announced to tackle ethnic disparities in the workplace.

Developed by the government and Business in the Community the new Race at Work Charter will commit businesses to a set of principles and actions designed to drive forward a step-change in the recruitment and progression of ethnic minority employees.

Alongside the Charter, the prime minister has launched a consultation on ethnicity pay reporting in response to the Race Disparity Audit’s facts and figures data, which reveals significant disparities in the pay and progression of ethnic minority employees compared to their white counterparts. The consultation closes January 2019.



Modern slavery: report on tackling exploitation in the construction industry

The Chartered Institute of Building has published a report on the construction industry and the Modern Slavery Act. The report examines the UK’s construction industry’s response to the Modern Slavery Act and the systemic problems that are eroding the rights of domestic and foreign workers in the sector.


For more information on the Modern Slavery Act and other subsequent reports see Modern Slavery Act 2015. This is one of a series of short guides from Emplaw Online summarising recent legislation – listed here – full content available to online subscribers only.

‘A level playing field’ – briefing on the future of employment rights post-Brexit

The Institute for Public Policy Research has published a briefing paper on the future of employment rights post-Brexit.

The paper explores how to guarantee a ‘level playing field’ for employment protections.


Statement of changes to the Immigration Rules

The government has published changes to the Immigration Rules. The main purposes of the changes are to:

  • Implement the next phase of the roll-out of the EU settlement Scheme for resident EU citizens and their family members to obtain UK immigration status
  • Introduce a form of leave to remain for those children transferred to the UK as part of the Calais camp clearance
  • Support the operation of the new application process in UK Visas and Immigration (UKVI) by amending the Rules on the requirements for a valid application


SM&CR extends to insurers in December 2018 - PRA policy statement published

On 18 October 2018, the FCA published a policy statement (PS26/18) on implementing the extension of the senior managers and certification regime (SM&CR) to insurers which will take effect in December 2018



For more info see the Emplaw Online card about Regulatory References https://www.emplaw.co.uk/lawguide/regulatory-references

Bank of England annual whistleblowing disclosures report

As prescribed persons the Bank of England and the Prudential Regulation Authority the Bank and PRA must report in writing annually on workers’ whistleblowing disclosures received by them. The report must be published within 6 months of the end of the reporting period.

The Bank has received a total of 141 disclosures in the reporting period. The Bank reasonably believed that 116 disclosures were qualifying disclosures within section 43B ERA 1996. The remaining 25 disclosures were considered not to be qualifying disclosures because:

  • 6 related to firms that were regulated solely by the FCA
  • 7 were related to employment issue disputes (and no public interest)
  • 12 were undetermined due to the poor quality of information provided and/or inability to engage further with the worker.


Early conciliation statistics

Acas has published statistics for the period April – June 2018 on early conciliation. 23% of early conciliation cases in this period went on to be an ET claim. 13% of these cases were settled by Acas conciliators or withdrawn with a further 85% still in progress.


HMCTS publishes progress report on court and tribunal reform

The report includes information about forthcoming changes to employment tribunals



Timis & Anor v Osipov & Anor [2018] EWCA Civ 2321

Directors individually liable for whistleblowing award

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Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214

Employer vicariously liable for assault following office party

This case raises the issue of an employer’s vicarious liability where an employee’s wrongful conduct occurs outside the workplace and outside office hours.

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Twenty-Four Seven Recruitment Services Ltd & Anor v Afonso & 190 Ors [2018] UKEAT 0311/17

Agency workers’ terms did not fall within the Swedish derogation and they were entitled to same employment conditions under Regulation 5 AWR

This case concerns a claim under the Agency Workers Regulations 2010 which apply to workers who carry out temporary work assignments through the medium of temporary work agencies (TWAs).

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Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) [2018] UKSC 49

Bakers could refuse to bake cake in support of gay marriage

In this case the Supreme Court overturned Court of Appeal (Northern Ireland) decision that found that a bakery had unlawfully discriminated against a customer on the ground of sexual orientation and religious and political belief when it refused to bake a cake inscribed with support for gay marriage, which the owners of the bakery opposed on religious grounds.

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Sheikholeslami v The University of Edinburgh [2018] UKEAT 0014_17

University’s failure to make reasonable adjustments: no strict causation test necessary

This case concerns a claim under section 15 Equality Act 2010  which provides that a person (A) discriminates against a disabled person (B) if

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