Emplaw Monthly - End of March 2019

NEW AT EMPLAW 

Podcast - TUPE update

This podcast from Emplaw authors Gowling WLG covers how the recent TUPE case law has developed over the past year, focusing on three TUPE cases providing useful reminders of existing law and which deal with some of the most common scenarios which occur in practice. 

Click here for podcast

London Borough of Lambeth v Agoreyo – No Longer in Suspense

A useful  blog from Emplaw authors Cloisters explaining the recent ruling and the guidance from the Court of Appeal for employers considering whether to suspend staff who are facing serious allegations Read more..

Consultation launched on misuse of confidentiality clauses

A clear explanation of the proposals made in the recently launched government consultation and their implications, from Emplaw authors Lewis Silkin Read more

UPDATED ARTICLES

With Brexit still undecided, our recent article Brexit, deal or no deal – what does it all mean for employment law? has been updated and are very useful reading.

FOCUS ON EMPLAW CONTENT

At Emplaw, our reference law cards include summary guides to recent acts and upcoming bills, as well as a checklist of statutory limits for benefits  (such as sick pay) and tribunal awards.

https://www.emplaw.co.uk/lawguide

EMPLOYER/EMPLOYEE GUIDANCE/ADVISOR NEED TO KNOW

BEIS holiday pay guidance

BEIS has published guidance on calculating holiday pay for workers without fixed hours or pay. Importantly, whilst the guidance relies on the familiar 12.07% figure to calculate holiday entitlement, it makes clear that employers should calculate holiday pay for such workers in line with S124 Employment Rights Act ( i.e based on the average weekly remuneration in the period of twelve weeks preceedig the holiday taken)

The guidance includes explanation of the change to the holiday pay reference period from this 12 week period to 52 weeks and which comes into effect in April 2020.The change is designed to even out the seasonal variation in pay for many casual workers . 

The new guidance follows recommendations which the government accepted from the Taylor Review.

https://www.gov.uk/government/publications/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay

New Acas guidance on neurodiversity in the workplace

Acas has released a suite of new guidance to help organisations understand and better support neurodiversity in the workplace

Neurodiversity refers to the different ways the brain can work and interpret information. Most people are neurotypical, meaning that the brain functions and processes information in the way society expect but around 1 in 7 people) are neurodivergent, meaning that the brain functions, learns and processes information differently. Neurodivergence includes Attention Deficit Disorders, Autism, Dyslexia and Dyspraxia.

The guidance includes separately targeted information for employers, managers and employees as follows:

Employers: Changing your workplace to better support neurodiversity

Managers: Managing staff with ADHD, Autism, Dyslexia, Dyspraxia and other forms of neurodivergence

Employees: Working when neurodivergent

Links to research paper and other websites Neurodiversity at work

Acas guidance on leadership

Acas  has published new guidance on leadership which sits alongside a framework that helps leaders to focus on the four key areas of leadership. Acas identifies these as  personal style , workplace culture , communication skills and the big workplace issues.

http://www.acas.org.uk/index.aspx?articleid=6605

Apprenticeship funding updates

In his spring statement the chancellor said  ‘to help small businesses take on more apprentices, I can announce that I am bringing forward the £700 million package of reforms I announced at Budget to the start of the new financial year in April.

The Department of Education has published  the policy for apprenticeship funding in England from 1st April 2019. Updates include

From 1st April 2019

  • the rate of co-investment will be reduced from 10% to 5% for all new apprenticeship starts, with government funding of 95% provided to cover the remaining costs.
  • levy paying employers wishing to support apprenticeships in other businesses (e.g across their supply chains) can transfer up to 25% (up from 10%) of the annual funding in their apprenticeship service account.
  • Expiry of funds will be on a rolling 24-month cycle
  • Information relevant to Exiting the European Union

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/788312/Apprenticeship_funding_in_England_from_April_2019.pdf

FCA Directory of financial services workers and final guidance on statements of responsibilities

The FCA has published its final rules in PS19/7 on its proposed new online Directory of financial services workers, which is expected to go live in 2020. The Directory will sit alongside the Financial Services Register, which already provides details of regulated firms and approved persons (including senior managers). The Directory will include details of other categories of individuals, such as certified persons, who might cause harm to consumers, firms or other stakeholders.

Banking firms and insurers will be able to submit data to the new Directory from September 2019; other firms will be able to submit data after commencement of the extension of the senior managers and certification regime (SMCR) on 9 December 2019.

It is hoped that the Directory information will, for example, help customers to verify the identity of those offering financial products or services. For firms recruiting new hires, it will assist in cross checking regulatory references and carrying out inquiries into previous work histories. It is also anticipated that the data accuracy measures proposed for the Directory will assist firms in ensuring they have carried out their annual fitness and propriety checks.

The Directory will be a new public register that contains details of:

  • Certified individuals under the SMCR
  • Executive and non-executive directors who are not senior managers
  • Other individuals who are sole traders or appointed representatives where they undertake business with clients and require a qualification to do so

The Directory will include the following information:

  • Employer details (place of business and contact details)
  • Restrictions applying to a firm’s regulated activities
  • Individual’s name and reference number
  • Relevant roles held
  • Start and end dates of each role
  • Type of business the individual is qualified to undertake (if a qualification is required)
  • Workplace location
  • Customer engagement method
  • Membership of relevant accredited bodies
  • Regulatory sanctions and prohibitions
  • Date information was last updated

The Directory will not contain information on remuneration.

https://www.fca.org.uk/publication/policy/ps19-07.pdf

LEGISLATION AND LITIGATION

A reminder of April changes

Itemised payslips extends to all ‘workers’ from 6th April 2019

The right to itemised payslips extends to workers from 6th April 2019 plus information must include hours worked and the rate paid but only where the employee’s pay varies according to time worked (e.g. overtime and irregular hour workers).

Useful govt guidance including case studies are found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/764576/payslips-legislation-april-2019-additional-info-on-payslips.pdf

Increases to statutory payments and to Tribunal compensation limits

See February's  Emplaw Monthly

All the up-to-date limits for these plus new minimum wage rates and tax and NI rates and allowances are available for subscribers in the Reference law card Statutory Limits for Awards and Benefits 2019-2020

What is not happening-----reforms to the NICs treatment of termination payments

Readers may recall that, as part of the government’s reforms to taxation of termination payments announced in 2017, it was proposed that termination payments in excess of £30,000 would be subject to employer national insurance contributions (“NICs”). It was anticipated that these changes would take effect at the same time as the changes to income tax on termination pages (April 2018) but they were  postponed until April 2019.  In case you missed it, the 2018 budget papers revealed that the measure has been delayed for a second time and will now take effect from April 2020.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/752202/Budget_2018_red_web.pdf  (p42)

Guidance for employment tribunals users on the powers available to tribunals.

BEIS have published guidance which includes:

  • an outline of the purpose and limits of the powers
  • an explanation of how to ask tribunals to make use of the powers
  • evidence that poor behaviour or conduct in bringing or defending a claim or response can have financial consequences

The guidance comes in response to feedback that there is a lack of awareness or confusion amongst tribunal users over what powers tribunals have to either act against employment law breaches and poor behaviour in bringing or defending a claim, or the way a case is conducted, and the way those powers are applied.

The stated aim of the document is to provide an accessible explanation of the powers available
and highlight case law which illustrates how tribunals have used them. 

https://www.gov.uk/government/publications/employment-tribunals-powers-their-use-and-application

Supreme Court to hear the appeal in Royal Mencap Society v Tomlinson-Blake in December 2019

This is the  appeal against the Court of Appeal's decision which suggested “sleep-in” workers were not entitled to National Minimum Wage for the time asleep. Following the grant of permission to appeal to the Supreme Court given in  in February, it is understood the hearing will be in December 2019.

For discussion of the Court of Appeal's decision, see the blog here from Emplaw Online author, Nathaniel Caiden from Cloisters

More information for subscribers is available in topic law card NMW - Time Work, Salaried Work, Output Work and Unmeasured Work

CONSULTATIONS AND REPORTS

Consultation on on misuse of confidentiality clauses

The government has published a consultation on misuse of confidentiality clauses, specifically on measures to prevent misuse in situations of workplace harassment or discrimination.

The government notes that despite protections some employers have used confidentiality clauses to suggest victims of harassment cannot make any disclosures and intimidate them into silence. The consultation therefore seeks views on what further limitations might be put on confidentiality clauses, to ensure they cannot be misused in this way or to clarify what they can and cannot cover.

The consultation also considers how to enforce the proposed requirement on wording of confidentiality clauses and proposes separate mechanisms for settlement agreements and the written statement of particulars.

Consultation closes on 29 April 2019.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/783011/confidentiality-clauses-consultation.pdf

For more discussion of the background to the consultation and the proposals, see the recent article here from Emplaw authors Lewis Silkin 

Consultation on the implementation of the reform of the off-payroll working rules (IR35) from April 2020

On 5 March 2019, HMRC published a policy paper and consultation document on extending the off-payroll working rules to the private sector from 6 April 2020. The consultation closes on 28 May 2019.

The paper confirms that the government has decided that the smallest organisations (as defined by section 382 of the Companies Act 2006) will not be affected by the reform and will not need to determine the status of the off-payroll workers they engage. Other points  of interest include:

  • Although the fee-payer is treated as the employer for the purposes of income tax, NICs, and the Apprenticeship Levy, as per the public sector reform, the fee-payer will not be required to make deductions for student loans purposes.
  • The government considers it necessary to legislate to ensure that the status determination – and the reasons for that determination – are cascaded to all parties within the labour supply chain, to ensure they comply with their obligations
  • The government believes that the introduction of a client-led status disagreement process will mean that fewer off-payroll workers will need to use end of year processes to challenge the status determination

https://www.gov.uk/government/consultations/off-payroll-working-rules-from-april-2020

European Commission report on gender equality

The European Commission has published its 2019 report on gender equality. The report notes that while inequalities still exist, the EU has made progress in gender equality and there are encouraging trends.

However, gaps in gender equality remain. The EC has therefore put together a framework for strategic engagement focusing on 5 priority areas:

  • Increasing female labour market participation and economic independence of men and women
  • Reducing the gender pay, earnings and pension gaps and thus fighting poverty among women
  • Promoting equality between women and men in decision-making
  • Combating gender-based violence and protecting and supporting victims
  • Promoting gender equality and women’s rights across the world

https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/gender-equality-strategy_en

CASES: 

Tywyn Primary School v Aplin [2019] UKEAT 0298/17

Dismissal of gay head teacher was discriminatory on grounds of sexual orientation

This case concerns the dismissal of an openly gay head teacher.

Under section 13 of the Equality Act 2010 direct discrimination occurs when:

‘A person (A) discriminates against another (B) if, because of [his sexual orientation] A treats B less favourably than A treats or would treat others’.

Mr Aplin met two 17-year-old males on the dating app Grindr and the three of them had sex.

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Nosworthy v Instinctif Partners Ltd [2019] UKEAT 0100/18

Bad leaver provisions neither a penalty nor an unlawful deduction from wages

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Grange v Abellio London Ltd [2018] UKEAT 0304/17

Personal injury damages permissible for breach of working time claim

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Network Rail Infrastructure Ltd v Crawford [2019] EWCA Civ 269

Compensatory rest could be interrupted periods exceeding 20 minutes

Regulation 12 of the Working Time Regulations reads:

"(1) Where a worker's working time is more than six hours, he is entitled to a rest break.

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London Borough of Lambeth v Agoreyo [2019] EWCA Civ 322

An act of suspension can constitute a breach of the implied term of trust and confidence but not in this case

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Hare Wines Ltd v Kaur & Anor [2019] EWCA Civ 216

The reason for the dismissal was the TUPE transfer and so automatically unfair – that the reasons for dismissal were personal to the employee did not defeat her case

Mr Kaur was employed as a cashier in a wine wholesale business run, over the course of her employment, by a number of different corporate entities. The common link between them was that Mr K Hare and Mr Alexander Wilson were directors/shareholders. By 2014 Ms Kaur was employed by H&W.

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Case Summary Tag: 

iForce Ltd v Wood [2019] UKEAT 0167_18

Broad approach must be adopted when determining whether the ‘something’ that leads to unfavourable treatment arises in consequence of disability

This appeal concerns the application of section 15 Equality Act 2010; specifically the requirement that the ‘something’ which gives rise to unfavourable treatment arises in consequence of a complainant’s disability.

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