Emplaw Monthly - End of February 2019

New at Emplaw 

Asda equal pay decision

Click here for a succinct analysis by Emplaw authors, Lewis Silkin, of the recent Court of Appeal’s ruling, in this long running dispute, that lower-paid, female retail staff can compare themselves to higher-paid, male distribution depot staff.

Podcast on The Employment Law 2019 Horizon: top 12 hot topics (31st January 2019)

Click here for a podcast and accompanying article from Emplaw Online authors, Gowling WLG in which they discuss 2019's hot employment law topics from holiday pay calculations to whistleblowing to tribunal proceedings and much more.

Updated articles

With Brexit still undecided, our  recent articles on Employing EU citizens in the UK – what you need to know  and Brexit, deal or no deal – what does it all mean for employment law? have been updated and are very useful reading.

And with The Good Work Plan remaining the centrepiece of the Government's employment law strategy, we have updated our briefing on the Response to to the Plan to include subsequent actions.

Focus on Emplaw content

At Emplaw Online we have excellent cards on ET and EAT procedures, all drafted by leading barristers from Cloisters and updated to reflect the recent changes to the EAT practice direction on procedure. For the full list of cards in this section, click here

NEWS

EMPLOYER/EMPLOYEE GUIDANCE/ADVISOR NEED TO KNOW

Acas guidance on age discrimination

Acas has published guidance on age discrimination: key points for the workplace. The guide offers employers, managers, HR professionals, employees, employee/ trade union representatives and job applicants:

  • steps to take to prevent age discrimination happening in the workplace
  • examples of how age discrimination might still occur, and
  • how age discrimination should be dealt with if it does happen 

http://www.acas.org.uk/media/pdf/o/1/Age_discrimination_key_points_for_the_workplace.pdf

The Guidance is accompanied by a factsheet on Age discrimination:obligations for employers and  a factsheet on Age discrimination:top ten myths

Update to Code of Practice on  Preventing Illegal Working to reflect online right to work checks 

As reported last month. employers can now choose to conduct an online right to work check to establish the statutory excuse against a civil penalty in the event of illegal working. Not all employees, or prospective employees, will have an immigration status that can be checked online. To conduct an online check, the Home Office online right to work checking service must be used, which is currently restricted to checking 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.

The Code of Practice on  Preventing Illegal Working has been amended to reflect online right to work checks. Chapter 4 of the Code of Practice sets out how to conduct a right to work check, both manually and online.

GEO guidance on gender pay gap

The Government Equalities Office has published two sets of guidance for employers on closing the gender pay gap. The GEO recommends that employers have an effective GPG action plan to help their organisations understand their GPG and to signal to employees and the public their commitment to taking serious steps to tackle it

https://gender-pay-gap.service.gov.uk/public/assets/pdf/understand-your-gender-pay-gap.pdf

https://gender-pay-gap.service.gov.uk/public/assets/pdf/action-plan-guidance.pdf

Separately, the data analytics firm Paygaps.com has easy to read statistics (apparently from official sources) on reports from years 2017/2018 and 2018/2019 showing median pay gap figures and including a Pay Gap calculator according to sector.

MyPayLondon

A new website has been launched to assist people working in London with problems concerning pay from employment. It covers the most common circumstances in which disputes arise over pay. The site is intended to provide answers to problems with pay by taking the user through a series of questions.

https://mypay.london

Banking Standards Board draft guidance on regulatory references

The Banking Standards Board has published a consultation paper and draft guidance on regulatory references for financial services firms. The guidance is intended to help firms implement the regulatory reference requirement of the senior managers and certification regime effectively by providing a high level set of principles and good practice guidance.

https://www.bankingstandardsboard.org.uk/wp-content/uploads/2019/01/Draft-guidance-BSB-consultation-regulatory-references.pdf

https://www.bankingstandardsboard.org.uk/wp-content/uploads/2019/01/BSB-consultation-regulatory-references.pdf

BREXIT 

European Data Protection Board information note on data transfers in the event of a no-deal Brexit

The European Data Protection Board has published an information note on data transfers under the GDPR in the event of a no deal Brexit.

On 30 March 2019 the UK will become a third country, which means that the transfer of personal data to the UK has to be based on one of the following instruments:

  • standard or ad hoc data protection clauses
  • binding corporate rules
  • codes of conduct and certification mechanisms
  • derogations.

The note provides information to commercial and public organisations on these transfer instruments under the GDPR for the transfer of personal data.Separately, the Department for Business, Energy and Industrial Strategy has published guidance on the use of personal data in the event of a no deal and also if there is a deal after Brexit.

https://edpb.europa.eu/sites/edpb/files/files/file1/edpb-2019-02-12-infonote-nodeal-brexit_en.pdf

https://www.gov.uk/guidance/using-personal-data-after-brexit

Meanwhile The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) (No. 2) Regulation 2019 have been published which uses powers under the EU (Withdrawal) Act 2018 (EUWA) to amend the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“the Main Regulations”) in order to correct deficiencies in EU-derived data protection legislation as a result of the withdrawal of the UK from the EU. This instrument amends the transitional provisions under the Main Regulations which relate to the Privacy Shield. This is required to provide that transfers of personal data from the UK in reliance on the Privacy Shield can only take place after 29 March 2019 in a no deal scenario, if the certified Privacy Shield company has a privacy policy which includes a commitment to comply with the Privacy Shield Principles inrelation to personal data transferred from the UK.

The Regulations and a helpful explantory memorandum are found  at https://www.gov.uk/eu-withdrawal-act-2018-statutory-instruments/the-data-protection-privacy-and-electronic-communications-amendments-etc-eu-exit-no-2-regulation-2019

LEGISLATIVE CHANGES

Social security benefits increase

 The Social Security Benefits Up-rating Order 2019 has been published. The main uplifts of interest to employment specialists are:

From 6 April 2019, the rate for statutory sick pay will increase to £94.25 per week.

From 7 April 2019, the rate for statutory maternity pay, shared parental pay and adoption pay will increase to £148.68 per week.

http://www.legislation.gov.uk/ukdsi/2019/9780111179888

Tribunal compensation limits increase

The Employment Rights (Increase of Limits) Order 2019 has been published. The main uplifts to take effect from 6th April include:

  • Limit on a Week's Pay taken for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal. - increases from £508 to £525 .
  • Limit on Compensatory award - increases from £83,682 to £86,444 (still subject to the 52 weeks' pay cap)
  • Limit on the daily amount of statutory guarantee payment – increases from £28.00 to £29.00.

https://www.legislation.gov.uk/uksi/2019/324/body/made

 

CONSULTATIONS,REPORTS AND STATEMENTS

Consultation on extending redundancy protection for pregnant women and new parents

The government has published a consultation seeking views on extending redundancy protection for pregnant women and new parents. It also sets out more widely what BEIS is doing to tackle pregnancy and maternity discrimination and explains the current law on redundancy protection. The consultation arises from a commitment in the government’s response to the Matthew Taylor review (see Emplaw summary of the Good Work Plan) . It closes on 5th April 2019.

The consultation proposes that the government extend the current protection afforded under the Maternity and Paternity Leave etc Regulations 1999 to cover the period of pregnancy and a period after, an extension of six months. It asks how best to achieve that and who would be covered, for example, those taking shared parental leave or adoption leave.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/773179/extending-redundancy-protection-for-pregnant-women.pdf

Ministry of Justice statement in fee-paid judicial litigation: February 2019

The MOJ has written to the Employment Tribunal following the ECJ's decision in O'Brien v Ministry of Justice (C-432/17) where the court  confirmed that in situations where judicial service extended over a period both prior and post-deadline ,the pre-deadline service must be taken into account. The letter confirms to all affected fee paid judicial office holders the MOJ approach to claims for pre 7 April 2000 service.(ie service before the deadline for transposing the EC Part Time Work Directive 97/81/EC). 

 

CASES: 

Olalekan v Serco Ltd [2019] UKEAT 0189/18

Race discrimination: hypothetical comparators- a person who was otherwise a suitable comparator was not rendered unsuitable merely because a different decision maker was involved.

This case concerns the use of comparators in a race discrimination claim and whether it made a difference that the complainant’s case was decided on internally by a different decision maker to that of the comparators.

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Lamb v The Garrard Academy [2018] UKEAT 0042/18

Disability discrimination: reasonable adjustments in dealing with a grievance from a disabled person

Sections 20 and 21 of the Equality Act 2010 set out the framework for the duty to make reasonable adjustments. The duty comprises three requirements.

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Asda Stores Ltd v Brierley & Ors [2019] EWCA Civ 44

Depot workers were appropriate comparators for female shop workers

The Court of Appeal has held that female shop workers at Asda could use as comparators for their equal pay claim male depot workers working at different locations.

There were two main aspects to the case brought by Asda employees; an equal pay issue and use of the multiple claim process in the employment tribunal on a single form. The Court of Appeal decided the latter issue that multiple claims in this litigation were not based on the same set of facts.

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Gan Menachem Hendon Ltd v. De Groen (2019] UKEAT 0059/18

Religious school’s instruction to teacher to confirm she did not live with her boyfriend was not discrimination on grounds of religion or belief

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Gallagher for Judicial Review (NI), R v Secretary of State for the Home Department [2019] UKSC 3

Minor criminal convictions: statutory scheme disproportionate in limited circumstances

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Case Summary Tag: 

Linklaters LLP & Anor v Mellish [2019] EWHC 295

High Court grants injunction to restrain disclosure of information to the media

This case concerns the law firm Linklaters and the company through which it employs its UK-based employees (LBS). Mr Mellish worked from 27 March 2017 as Linklaters’ Director of Business Development and Marketing. He was also a member of the Executive Committee.

Mr Mellish’s contract included an express obligation of confidentiality as follows:

‘You must not at any time, other than for the proper performance of your work: 

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J v K & Anor [2019] EWCA Civ 5

Court of Appeal allows appeal against refusal of extension of time for appeal

This case concerns another appeal about extensions of time for appealing to the EAT from a decision of the ET.

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London Underground Ltd v Amissah & Ors [2019] EWCA Civ 125

Hirer liable to pay their proportion of compensation where agency had failed to pass on pay to agency workers

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