Emplaw Monthly - End of November 2018

NEWS

EMPLOYER/EE GUIDANCE/ADVISOR NEED TO KNOW

Guide on employing people with a disability or health condition

The Department for Work and Pensions has published a practical guide for line managers on recruiting, managing and developing people with a disability or health condition.

https://www.gov.uk/government/publications/disability-confident-and-cipd-guide-for-line-managers-on-employing-people-with-a-disability-or-health-condition/guide-for-line-managers-recruiting-managing-and-developing-people-with-a-disability-or-health-condition

Acas advice on performance management processes

Acas has published useful advice after its research revealed that only one in four employers confirmed that their performance management systems are adapted for staff with special needs, disabilities and conditions such as dyslexia and autism. The short guidance covers how to get performance management right; measuring staff performance; maintaining effective performance management arrangements and developing staff.

http://www.acas.org.uk/index.aspx?articleid=6608

The data protection charge – do you need to pay?

The ICO has concluded its  Review of exemptions from paying charges to the ICO and concludes that the government does not believe there was a strong case made for any particular new exemption to be introduced at this time

https://www.gov.uk/government/consultations/review-of-exemptions-from-paying-charges-to-the-ico

There is a useful online self-assessment tool to help controllers assess whether they need to pay the fee

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

Regulatory References regime applies to senior managers at insurers from 10 December 2018 

The Senior Managers & Certification Regime  will extend to insurers and reinsurers  from 10 December 2018.

In November 2018 the PRA published a policy statement (PS27/18)  which provides the final set of rules for the implementation of the extension of the Senior Managers and Certification Regime (SM&CR) to insurers.

Regulatory references will extend to all senior managers and certification staff working for insurers covered by the SMCR and it is vital that firms put arrangements in place to ensure compliance with the rules. For more information see the Emplaw law card Regulatory References

The Ministry of Justice has confirmed it may reintroduce fees for employment tribunal claims

https://www.lawgazette.co.uk/law/employment-tribunal-fees-may-be-resurrected-moj-confirms/5068224.article

Gender pay gap reporting  - what have the reports shown, and new guidance for  solicitors

The Government Equalities Office has published s summary of gender pay gap information provided by employers for 2017/18. The key points arising are set out in  the recent article from Emplaw authors Moordcrofts Gender Pay Gap Reporting – summary of progress so far

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/751209/GPG-Reporting-Portal-Report.pdf

Meanwhile the  Law Society for England & Wales has produced guidance for law firms entitled Gender pay gap reporting: Setting the standard for the profession

From 6 December 2018, solicitors required to publish fee and other information

From 6 December 2018, firms regulated by the law society will be required to publish information about certain price, service and regulatory matters.

The Law Society has issued a practice note  to explain and assist at

https://www.lawsociety.org.uk/support-services/advice/practice-notes/price-and-service-transparency/#pst5

CONSULTATIONS AND REPORTS

Inquiry into use of Non-Disclosure Agreements in harassment and discrimination cases

The Women and Equalities Committee has launched an inquiry into NDAs, specifically to look at the wider use of such agreements in cases where any form of harassment or other discrimination is alleged. This might include for example pregnancy or maternity discrimination or racist abuse.

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

Acas research on reporting sexual harassment

Acas has published research on sexual harassment that reveals that only one in four workers agree that international media coverage has helped to improve their workplace culture.

The poll also found that

·         Four in ten workers said that they would be ‘very likely’ to report sexual harassment if they personally experienced it in the workplace

·         Six out of ten workers believe that their current employer is doing the right amount to reduce sexual harassment

·         46% of workers believe that ‘making changes to the wider culture of the company’ would be effective in preventing sexual harassment.

http://www.acas.org.uk/media/pdf/8/k/Sexual_harassment_in_the_British_workplace.pdf

Women on Boards – third report from the Hampton Alexander Review

The Hampton Alexander Review has published its third report and focuses on increasing the numbers of women in senior positions in FTSE 350 companies. The report welcomes the new Corporate Governance Code which requires companies  to address the shortfall of women in leadership roles. There is more on the Corporate Governance Code in the Emplaw card on Company Directors

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/755679/HA-review-report-november-2018.pdf

Review of banks’ whistleblowing arrangements

The FCA has published the results of a review on how the regulatory whistleblowing rules have been implemented giving examples of good practice and setting out areas for improvement.

https://www.fca.org.uk/publications/multi-firm-reviews/retail-and-wholesale-banking-review-firms-whistleblowing-arrangements

LEGISLATION UPDATE

Shared Parental Leave and Pay (Extension) Bill for workers, including the  self employed

This  Private Member’s Bill is intended to make provision about shared parental leave and pay for workers, including those that are self-employed and aims to extend statutory maternity allowance to a mother’s self-employed partner. The text of the Bill has now been published  and it is expected to have its second reading debate on Friday 25 January 2019.

https://services.parliament.uk/Bills/2017-19/sharedparentalleaveandpayextension.html

Brexit: arrangements in the event of a no-deal

Back in August, the government published guidance on  Workplace rights if there’s no Brexit deal.

In accordance with matters set out in  the notice, the government has published draft regulations which make amendments to employment law to reflect the UK’s withdrawal from the EU in the event that there is no deal with the EU. They are not aimed at making substantive changes but there will be some effect for European Work Councils,

For more insight, please see the Emplaw article Deal or No Deal Brexit – What does it mean for employment law?

Employment Rights (Amendment) (EU Exit) Regulations 2018 (the SI) and The Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018.

https://www.gov.uk/eu-withdrawal-act-2018-statutory-instruments/the-employment-rights-amendment-eu-exit-regulations-2018

CASES: 

Addison Lee Ltd v Lange & Ors [2018] UKEAT 0037/18

Couriers working for Addison Lee were workers

In this case, the EAT has upheld the ET’s finding that couriers working for Addison Lee were limb (b) workers and that time spent logged on other than break times was ‘working time’.

Regulation 2(1) of the Working Time Regulations 1998 provides that:

" "worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) -

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Kreuziger [2018] EUECJ C-619/16 Max-Planck-Gesellschaft zur Forderung der Wissenschaften [2018] EUECJ C-684/16

No right to exclude right to carry forward holiday unless employer can show it enabled the worker to exercise the right

Article 7 of the Working Time Directive 2003/88/EC provides:

‘1.      Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

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Evans v Xactly Corporation Ltd [2018] UKEAT 0128_18

Calling a colleague a ‘fat ginger pikey’ was not harassment

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Wood v Durham county Council UKEAT/0099/18

Stealing even where a manifestation of post-traumatic stress disorder was not a disability

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Martin v University of Exeter [2018] UKEAT 0092/18

Meaning of disability - long term effects test in SCA Packaging v Boyle complied with

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Barnard v Hampshire Fire & Rescue UKEAT/0179/18

Time limits for equal pay claim - EAT considers ‘stable employment relationship’

An equal pay claim must be brought within a six months time limit. Where there is ‘stable work’ time begins to run when the stable working relationship ends.

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O'Brien [2018] EUECJ C-432/17

Pension of part time judge to take full service into account where the accrual of pension entitlement extended over periods both prior to and after the deadline for transposition of the Part-Time Workers Directive

Clause 4 of the Part-Time Workers Directive 97/81 EC (the Directive) provides

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British Airways Plc v Pinaud [2018] EWCA Civ 2427

Part time cabin crew less favourably treated than full time comparator

Regulation 5 of the Part-Time Workers (Prevention of Less Favourable) Treatment Regulations 2000 ("the PTW Regulations") provides:-

"5.—(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker— 

(a) as regards the terms of his contract; or

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Sindicatul Familia Constanţa and Others [2018] EUECJ C-147/17

Foster parents are not workers

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