Emplaw Monthly - End of January 2019

NEWS

EMPLOYER/EMPLOYEE GUIDANCE/ADVISOR NEED TO KNOW

From 1st January 2021- a new Immigration system for the UK

In December 2018, the  government published a White Paper setting out key provisions for 2021 and beyond, which will apply whether  we leave the EU with or without a deal. For more detail see the Emplaw Online article Employing EU citizens in the UK – what you need to know with and without a Brexit deal and beyond

Naming scheme for unpaid employment tribunal awards- how will it apply?

As announced in the Good Work Plan, employers that default over payment of employment tribunal awards will be named and shamed. BEIS has published the policy around the scheme. This provides for claimants to register tribunal awards which remain unpaid after 42 days. It applies to awards of over £200 made from 18th December 2018.
As with the existing scheme for National Minimum Wage underpayment , employers will be named, along with the unpaid employment tribunal award, approximately quarterly in a press release on Gov.uk. The process runs in parallel with the  existing financial employment tribunal penalty scheme. Before being identified, employers will be notified and given 14 days to outline to BEIS exceptional circumstances as to why they should not be named under the scheme (e.g. the award has been paid, there are national security risks associated with naming).

https://www.gov.uk/government/publications/employment-tribunal-naming-scheme-guidance

Online right to work checks

The Home Office online Right to Work Checking Service gives employers information about migrants’ rights to work. Recent changes mean that employers can use the online service (and not need to rely on paper evidence) to demonstrate they conducted the necessary right to work checks on migrants and avoid a penalty if they are found to be employing illegal workers.

The service is however voluntary for employers and individuals and can only be used with regards to non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status under the EU Settlement Scheme. EEA nationals who have not been granted settled status under the EEA scheme will still need to demonstrate their right to work through the appropriate documents, such as their national passport, as now.

https://www.gov.uk/government/news/online-right-to-work-checks

For information on employing EU citizens in the UK post Brexit, please see the recent article from Emplaw – Employing EU citizens in the UK – what you need to know with and without a Brexit deal and beyond

ICO updates its data protection guidance with Guide to Data Protection and more information on contracts and liabilities between controllers and processors

The Information Commissioner’s Office has published its Guide to Data Protection combining its existing guidance on the GDPR and law enforcement regimes with new guidance explaining some basic concepts, how the DPA 2018 works, and which regime applies. The guide is split into five sections:

·        Introduction to data protection

·        Guide to the GDPR

·        Guide to law enforcement processing

·        Guide to intelligence services processing

·        Key data protection themes

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

ICO guidance: contracts and liabilities between controllers and processors

The Information Commissioner’s Office has published guidance supplementary to that in the Guide which discusses contracts and liabilities between controllers and processors in more detail. The guidance is aimed at helping both controllers and processors understand their new responsibilities and liabilities under the General Data Protection Regulation and what needs to be included in a contract and why.

https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/contracts-and-liabilities-between-controllers-and-processors-multi/

Committees of Advertising Practice new rule on gender stereotypes

As widely publicised, the CAP has introduced a new rule banning harmful gender stereotypes in ads. The new rule in the advertising codes will apply to broadcast and non-broadcast media and states: ‘[advertisements]must not include gender stereotypes that are likely to cause harm, or serious or widespread offence’. The new rule will come into force on 14 June 2019.

https://www.asa.org.uk/news/harmful-gender-stereotypes-in-ads-to-be-banned.html

CONSULTATIONS AND REPORTS

Government response and proposals following the annual report from the Director of Labour Market Enforcement

The second annual report from the Director of Labour Market Enforcement was published in May 2018 and the government response in December 2018. The  response acknowledges that some of the proposals made are already being implemented and some of the recommendations in the Good Work Plan compliment those in the report.

By virtue of the Immigration Act 2016, the Director of Labour Market Enforcement is required to prepare and report on a strategy at the beginning of each financial year which sets out his assessment of:

  • the scale and nature of non-compliance in the labour market during the year before the one to which the strategy relates, and
  • the likely scale and nature of such non-compliance during the year to which the strategy relates and the following two years.

The strategy must also  contain a proposal for the year to which the strategy relates setting out how labour market enforcement functions should be exercised.

Interesting recommendations accepted in the government response to this second such annual report include:

  • The three enforcement bodies (the Gangmasters and Labour Abuse Authority (GLAA), Employment Agency Standards Inspectorate (EAS) and HMRC National Minimum Wage and National Living Wage (HMRC NMW)).should learning from shared experience to ascertain best practice for joint working, ensuring the best enforcement tools are applied to each case 
  • BEIS and EAS should investigate the potential for EAS being given the powers to impose civil penalties on non-compliant employment
  • agencies as an alternative to prosecution.
  • HMRC, or another state body, should be provided with the powers and remit to take responsibility for the enforcement of holiday pay for vulnerable workers, including mechanisms to recover holiday pay arrears.
  • BEIS/ HMRC should review the guidance around NMW in collaboration with stakeholders to identify and improve problem areas such as pay averaging and salary sacrifice ( see below)

BEIS Consultation on salaried workers and salary sacrifice schemes

The Department for Business, Energy and Industrial Strategy (BEIS ) has acknowledged feedback from employers that some of the conditions required to classify work as salaried hours work for the purposes of the National Minimum Wage regulations are “complex, restrictive and make compliance with the legislation difficult”. It is also the  case that some employers have  withdrawn salary sacrifice schemes from workers on low pay to avoid breaching the NMW regulations.

Accordingly, BEIS has published a consultation on the National Minimum Wage rules regarding salaried workers and the operation of salary sacrifice schemes. It seeks views on proposed changes to the NMW Regulations (especially Regulations 21 and 24) which relate specifically to salaried hours work and on how effective the regulations are in preventing worker exploitation. 

The government invites views on whether, and if so how, it might amend the regulations to include additional payment cycles and fixing the definition of the calculation year for employers, without any detriment to workers.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/765127/salaried-hours-work-and-salary-sacrifice-consultation.pdf

Government response to Women and Equalities select committee report on sexual harassment

As reported, hot off the press last month, the government has published its response to the Women and Equalities select committee’s report on sexual harassment in the workplace. To add some more detail, the Government:  

  • agrees that a statutory code of practice should be introduced and states that it will work with the EHRC to develop it. However, ministers have not agreed, at this stage, to introduce a duty on employers to protect workers from harassment and victimisation, or to increase sanctions for poor employer practices. 
  • agrees that non-disclosure agreements require better regulation and a clearer explanation of the rights that a worker cannot abrogate by signing one and commits to consult on how best to achieve this and enforce any new provisions. 
  • agrees that regulators should make it clear that workplace sexual harassment is unacceptable, and that sexual harassment should be taken into account when considering the fitness and propriety of the individuals and employers they regulate.
  • agrees that employers “should have a responsibility to take reasonable steps to protect their staff from third party harassment where they know that their staff are at risk” and proposes to consult on “how best to strengthen and clarify the laws in relation to third party harassment”.  
  • states that it will amend whistleblowing law to make the EHRC a prescribed organisation and will consider further whether to add the police to the list. 
  • agrees to work with Acasthe EHRC and employers to raise awareness of appropriate workplace behaviours and individual rights.  
  • agrees to gather regular data on the prevalence and nature of workplace sexual harassment at least every three years, with a view to launching survey questions during 2019. 

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/sexual-harassment-workplace-government-response-17-19/

 

 

CASES: 

Ameyaw v Pricewaterhousecoopers Services Ltd [2019] UKEAT 0244/18

ET judgment not to be removed from the Register and so remain online

In this case, Ms Ameyaw applied for an earlier ET judgment in the proceedings (sent out to the parties and entered in the public Register over a year before) to be removed from the Register as she objected to the fact that it was publicly accessible on-line; alternatively, she asked for an anonymity order to be made under Rule 50 of the Employment Tribunal Rules.

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Chatfeild-Roberts v Phillips & Anor [2018] UKEAT 0049/18

Live in carer recruited through agency was an employee

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Williams v The Trustees of Swansea University Pension & Assurance Scheme & Anor [2018] UKSC 65

Pension which was enhanced as a result of disability related termination but paid at a rate reflecting disability related part-time service was not  ‘unfavourable treatment’.

Section 15(1) of the Equality Act 2010 (“the 2010 Act”) provides that - 

“A person (A) discriminates against a disabled person (B) if - 

(a)       A treats B unfavourably because of something arising in consequence of B’s disability, and 

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Uber BV v Aslam and others [2018] EWCA Civ 2748

Uber drivers are workers

This test case concerns individuals who provide personal services through internet platforms and whether they should enjoy some or all of the rights and protections that come with worker status (section 230(3) ERA 1996).

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The Lord Chancellor & Anor v McCloud & Ors [2018] EWCA Civ 2844

Transitional provisions in new pension schemes were age discriminatory

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Ideal Standard International SA and another v Herbert [2018] EWHC 3326

Constructing restrictive covenants in employee shareholder agreement.

This case concerns an application for an interim injunction to restrain breach of the non-compete clause in a shareholders’ agreement.

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