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.
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
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
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
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.
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.
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.
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
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.
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
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.
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.
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.
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).
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.
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.
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.
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: