Emplaw Monthly - End of April 2019
NEW AT EMPLAW
Spring catch up on employment law - How is the Good Work Plan panning out?
Wanting to catch up on employment law changes this year? The government’s programme flows from The Good Work Plan. Our updated briefing on the Plan and subsequent developments is essential reading.
Free webinar on TUPE and Insolvency
Join Emplaw authors Gowling WLG for a webinar on 7th May covering how TUPE applies when there is an Insolvency situation. The presenters will look at the consequences of TUPE applying in various types of insolvency scenario and how to manage the risks that creates.
Neurodiversity, autism and the workplace
Emplaw authors Lewis Silkin put the case for realising the benefits of neurodiversity in the workplace. This follows the release of a suite of new guidance from Acas on the topic, as reported in last month's Emplaw Monthly.
We have recently upgraded the search facility so that results are clearer and users can pinpoint the information they need more quickly. Search Tips are available under the site's FAQ’s.
New Law card
In the Recruitment topic, there is a new law card Employing EU citizens in the context of Brexit which includes explanation of five years 'continuous residence' in the context of the Settlement Scheme, and Right to Work Checks post Brexit as well as the proposals for a new immigration scheme in the UK, post 2021. Full content available to subscribers only
EMPLOYER/EMPLOYEE GUIDANCE/ADVISOR NEED TO KNOW
From April 2020 the rules for employers engaging individuals through personal service companies (PSCs) are changing. The responsibility for determining whether the off-payroll working rules apply will move to the organisation receiving an individual’s services. As announced in the October 2018 Budget, the measures that were implemented in the public sector in 2017 are being revised and rolled out to the private sector.
HMRC has published brief guidance on preparing for changes to the off-payroll working rules (IR35).
Meanwhile as reported in Emplaw Monthly in March, the Consultation on the implementation of the reform of the off-payroll working rules (IR35) continues until 28 May 2019.
EHRC helpline for advisors
The Equality and Human Rights Commission has set up an equality and human rights helpline for advisors who work with people who may have been discriminated against. The helpline sits alongside other resources published by EHRC for advisors.
England: 0161 829 8190
Scotland: 0141 228 5990
Wales: 029 2044 7790
Modernisation of Tribunals
Following the publication of Sir Ernest Ryder's strategy for the Modernisation of Tribunals in November 2018, he has now published an innovation plan for 2019/20 The proposals are identified in strands and include:
IMMIGRATION AND ASYLUM (IAC) PROJECT: To create a new end-to-end process for people appealing against any appealable decision made by the Home Office.
EMPLOYMENT TRIBUNAL PROJECT: To include the introduction of digital case files (to replace existing case records and file) to which judges, panel members and users would have access. The project commenced in February 2019.
COMMON COMPONENTS AND CAPABILITIES: Endorses the plan for a new case management system to replace the range of systems being used across jurisdictions. The system includes a user interface for judges to access a case file, view the case file event timeline and ask questions as part of continuous online resolution, as well as a professional user interface . The system incorporates a document generation function and the aim is that the majority of standard documents should be able to be generated through the system by June 2019.
ALL TRIBUNALS (HEARING ROOM PRESENTATION) PROJECT: Aims to identify the digital evidence presentation needs and the live video hearing needs of the users and judicial office holders in each Tribunal. The project will provide the IT equipment in Tribunal hearing rooms to enable the viewing of electronic content in hearings It has now started work with the Employment Tribunal in Birmingham.
ALL TRIBUNALS (DIGITAL RECORDING): Aims to digitally record all hearings in the Tribunals -starts this year.
UPPER TRIBUNAL AND EAT PROJECT: This aims to introduce the electronic filing system known as CE file, which is used by the civil jurisdictions of the High Court to the appellate and judicial review jurisdictions of the Upper Tribunal and the Employment Appeal Tribunal.
LITIGATION AND LEGISLATION
Vento band increases
The Presidents of the Employment Tribunals (England & Wales) and (Scotland) have issued a joint Second Addendum to the Presidential Guidance on Vento bands for injury to feelings awards in discrimination and whistleblowing claims.
It contains the (now) annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, adjusted for inflation.
The new bands for claims presented on or after 6 April 2019 are:-
• lower band (less serious cases): £900 to £8,800
• middle band: £8,800 to £26,300
• upper band (the most serious cases): £26,300 to £44,000
Agency workers - removal of Swedish derogation and addition of key information document
The Agency Workers (Amendment) Regulations 2019 and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 come into force on 6 April 2020.
The purpose of the Agency Workers (Amendment) Regulations 2019 is to revoke regulations 10 and 11 of the Agency Workers Regulations 2010 (the AWR) which allow agency workers to opt out of equal pay entitlements that become available after twelve weeks in the same role with the same hirer, subject to certain conditions including pay between individual assignments.
The AWR transposed EU directive 2008/104/EC which stipulate that after 12 weeks in the same role with the same hirer, an agency worker is entitled to the same pay, as well as the same basic terms and conditions, as a permanent employee. Under regulations 10 and 11 of the AWR, agency workers can waive this right to the same pay as permanent employee of the hirer if they sign a ‘pay between assignments’ contract, known as a Swedish derogation contract. This means that they become a permanent employee of the employment business and are paid between individual assignments.
Following a public consultation, the Secretary of State took the decision to revoke regulations 10 and 11 of the AWR. This is as a result of the Matthew Taylor Review of Modern Working Practices which identified concerns that Swedish derogation contracts were being misused to avoid giving agency workers their equal pay entitlements.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 (the Conduct Regulations) require employment businesses to provide agency work-seekers with a key information document before agreeing the terms by which the work-seeker will undertake work.
The key information document must include details such as rates of pay and other benefits and how individuals will be paid, and entitlements to annual leave.
For more information on this and other developments, following the Good Work Plan, see Emplaw’s updated article
Employment Rights (Miscellaneous Amendments) Regulations 2019
These regulations bring into force various aspects of the government’s Good Work Plan, including:
· financial penalties are increased in the event of aggravated breach of employment law to £20,000. This applies in respect of breaches on or after 6 April 2019
· extending the right to a written statement of particulars to
workers, including the right to bring a tribunal claim for breach. This applies to workers commencing work on or after 6 April 2020
· amending the Information and Consultation of Employees Regulations 2004, lowering the threshold for a valid employee request from 10% to 2%. This comes into force on 6 April 2020.
For more information on this and other developments, following the Good Work Plan, see Emplaw’s updated article
New EU Whistleblower rules approved
The EU has accepted proposals for a new Directive setting out new EU-wide standards to protect whistle-blowers revealing breaches of EU law in a wide range of areas including procurement, financial services, data protection etc.
To ensure potential whistle-blowers remain safe and that the information disclosed remains confidential, the new rules allow them to disclose information either internally to the legal entity concerned or directly to competent national authorities, as well as to relevant EU institutions, bodies, offices and agencies.
In cases where no appropriate action was taken in response to the whistle-blower’s initial report, or if they believe there is an imminent danger to the public interest or a risk of retaliation, the reporting person will still be protected if they choose to disclose information publicly.
Revision of Written Statement Directive
Following proposals from the EU Commission, the European Parliament has adopted its first reading position for a directive of the European Parliament and of the Council on transparent and predictable working conditions in the EU. Some of the provisions relating to the provision of key information have already been announced in the government's Good Work Plan (see our Essential Briefing)
Court of Appeal overturns injunction halting disciplinary process - pay should not have been withheld during disciplinary process but conducting disciplinary before conclusion of criminal case was not breach of contract
This case concerns criminal investigations into an employee’s conduct which is concurrent with the employer’s disciplinary investigation.
Failure to offer parking space was a failure to make a reasonable adjustment
Section 20 of the Equality Act 2010 provides:
"20. Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
The Independent Workers' Union of Great Britain, R (on the application of) v Central Arbitration Committee & Ors  EWHC 728
Article 11 ECHR was not engaged in application for compulsory recognition
The legal framework governing applications for recognition by trade unions is set out in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") .
Paragraph 1 of Schedule A1 provides that a trade union seeking recognition to conduct collective bargaining may make a request in accordance with Schedule A1.
Paragraph 2(4) of Schedule A1 provides:
Office party accident did not lead to vicarious liability
On 7 December 2012, a Christmas party was held at the Cambridge Research Institute of Cancer Research UK (CRUK). The Institute occupied premises at the Li Ka Shing Centre, which CRUK leased from the University of Cambridge. Each year a different department took responsibility for organising the party, using volunteer members of staff. In 2012 it was the turn of the Genomics Department, headed by Mr James Hadfield.
Employer entitled to treat witness behaviour as to failure to meet required standards of fitness and propriety for an FCA regulated role and as a reason for dismissal without further independent investigation
Mr Radia was employed as managing director of Jefferies International, a regulated position. Jefferies is regulated by the FCA.
Mr Radia brought a claim of disability discrimination against Jefferies. During the first ET hearing (ET1) the ET1 made a number of adverse findings against Mr Radia, including:
Engagement of BBC presenter via service company did not fall within IR35
This case concerns an appeal by Atholl House Productions against determinations that IR35 applied to a presenter. Atholl House was the personal service company of Ms Adams.
Ms Adams performed services for the BBC and other media organisations. She had been a freelance journalist since the mid-1990s. Her work other than for the BBC was wide and diverse and she had also worked extensively in the corporate sector. She has a significant social media profile and has written two books.