Emplaw Monthly - End of May 2019

NEW AT EMPLAW

Ramadan - employment issues

An article from Emplaw authors Lewis Silkin looking at the issues employers need to be aware of during Ramadan and how they can support their staff.

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TUPE - Beckmann rights – back to basics

An article by Emplaw authors, Gowling WLG on pension benefits, which, contrary to the general position, do transfer under TUPE.

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FOCUS ON EMPLAW CONTENT

Don’t forget our detailed and incisive information on Employment Tribunal process and procedures including appeals. All written and updated by excellent barristers at Cloisters chambers. Full content available to subscribers only

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News

EMPLOYER/EMPLOYEE GUIDANCE/ADVISOR NEED TO KNOW

TUC Guide on pregnancy, breastfeeding and health and safety

The TUC has published guidance for workplace representatives on pregnancy, breastfeeding and health and safety. The guidance, produced jointly with Maternity Action, is intended to help workplace representatives ensure that their employer has processes in place to protect and support women during and after pregnancy and also how to support any members who have any problems or concerns.

It includes

  • a useful and practical explanation of  various relevant workplace risks from lifting, sitting and standing  and travelling to  chemicals and infectious diseases, as well as stress and violence.
  • a summary of the law and best practice with regards to risk assessment duties.
  • some suggested practical measures for employers to take such as rest facilities  and changing the workload to reduce levels of stress
  • a discussion of the issues around notifying the employer of pregnancy, noting that expectant mothers should be encouraged to give early notice as it gives increased protection against unfair treatment or dismissal and entitlement to time off for antenatal appointments.
  • a discussion of the obligations and support that should be offered around return to work and breastfeeding

https://www.tuc.org.uk/sites/default/files/PregnancyBreastfeedingHS.pdf

The Emplaw law card on  Maternity Health and Safety by Cloister’s barrister Tom Gillie, provides more detailed information on the legal obligations.

CONSULTATIONS AND REPORTS

Women’s and Equalities select committee response to proposals to extend redundancy protection for new mothers

The Consultation on extending redundancy protection for pregnant women and new parents closed last month and the response is awaited. The consultation included a proposal that the government extend the current protection afforded to those under the Maternity and Paternity Leave etc Regulations 1999 (that is the obligation on employers to offer a suitable alternative vacancy) to cover the period of pregnancy and a period after a return to work. It asked how best to achieve that and who would be covered, for example, those taking shared parental leave or adoption leave. It also sought views on how best to enforce maternity and pregnancy protections.  The consultation document includes a useful summary of the current law.

On 1st May, the Women’s and Equalities select committee published its submission to the  consultation. The committee welcomes and agrees with the proposals to provide an additional 6 month period of protection for new mothers and those on adoption leave or shared parental leave. However, the committee is of the view that the proposals made in the consultation need to go further in ensuring workers and employers are aware of the rights and robustly address the issue of enforcement of existing and new rights. In particular ,

  • They invite the Government to set up a single comprehensive website for employers and employees
  • They propose that large companies should be required to report on retention rates for women 12 months after returning from maternity leave and 12 months after lodging an application for flexible working
  • They would like some clarity about the proposals to create a new, single labour market enforcement agency and  how this agency will ensure that maternity and pregnancy rights are being protected
  • They recommend that any consultation process into extending the time limit for pregnancy/maternity discrimination claims (as suggested in the  consultation documents)  be put in motion swiftly

Moreover, whilst the Government response to the consultation is still awaited, Maria Miller MP, the Chair of the Women and Equalities Committee, this month introduced, The Pregnancy and Maternity (Redundancy Protection) Bill 2019. see below

Statutory Sick Pay consultation trailed

The Work and Pensions Secretary Amber Rudd in her speech on  The Future of the Labour Market at the Recruitment and Employment Confederation on 9th May announced that the government ‘will shortly consult on reforming Statutory Sick Pay, in order to better support employers to retain staff who experience health problems’  

Reform of SSP is not a new subject. To recap the background

The Improving Lives: the Work, Health and Disability Green Paper’, published in October 2016, set out aspirations for ‘A society where everyone is ambitious for disabled people and people with long-term health conditions, and where people understand and act positively upon the important relationship between health, work and disability’.

The follow-up government paper ‘Improving Lives - The Future of Work, Health and Disability’ presented to Parliament in November 2017 expressed a  vision to see a reformed SSP system which supports more flexible working including phased returns to work, managing a long-term health condition, or recovering from illness. The November 2017 paper committed to carry out a consultation on these changes.

The Taylor Review of Modern Working Practices recommended reform of Statutory Sick Pay so that it is ‘explicitly a basic employment right, comparable to the National Minimum Wage, for which all workers are eligible regardless of

income from day 1’  In its response in December 2018  (The Good Work Plan) the government confirmed simply that it is looking to reform Statutory Sick Pay and would  be consulting on measures to encourage and support all employers to play their part. They would also consider whether changes are required to the enforcement mechanism.

For more information on the Good Work Plan, please see the updated Emplaw Article Your essential briefing on The Good Work Plan and subsequent developments

Low Pay Commission report

In this report, the Low Pay Commission (LPC) looks at the most up to date statistical evidence on the extent of non-compliance with the minimum wage and uses evidence from stakeholders and the Government to reflect on the policy responses to non-compliance. Its findings include that the  number of people paid less than the statutory minimum wage in the UK increased in 2018.

https://www.gov.uk/government/news/minimum-wage-underpayment-on-the-rise-low-pay-commission-finds

LITIGATION AND LEGISLATION

Bill to provide for online procedures in employment tribunals and certain courts

The Courts and Tribunals (Online Procedure) Bill [HL] 2017-19 was introduced into the House of Lords this month. It will establish an Online Procedure Rule Committee (OPRC) that will be able to make Online Procedure Rules (OPR) in relation to civil, tribunal (including employment tribunals and the Employment Appeal Tribunal) and family proceedings. It prescribes the process for making OPR which presumably will sit alongside the standard procedural rules.

Whilst digitisation of the initial stages of court process is already well established, the recommendation for changes to existing rulemaking was made in the Civil Courts Structural Review (CCSR),conducted by Lord Briggs in 2016. 

A fact sheet that is published with the Bill provides that the new Committee will focus on improving the online experience and make rules to ensure that the online services are designed in a way which is simple and accessible.

https://services.parliament.uk/Bills/2017-19/courtsandtribunalsonlineprocedure.html

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/799299/catop-factsheet.pdf

Unite case - substantial compensation agreed for blacklisted workers 

Unite has settled its long running blacklisting case against the construction companies who blacklisted workers. It is reported that as part of the overall settlement,

  • 53 blacklisted workers will receive over £1.9 million in compensation.
  • £230,000 will be placed by the construction companies into a training fund which will be administered by Unite for all victims of blacklisting who have brought proceedings

https://unitetheunion.org/news-events/news/2019/may/unite-secures-historic-million-pound-plus-blacklisting-legal-settlement/

The Pregnancy and Maternity (Redundancy Protection) Bill 2019 introduced

Following the submissions of the Women and Equalities Committee to the government consultation, as reported above, and whilst the Government response to the consultation is still awaited, Maria Miller MP, the Chair of the Committee, this month introduced a Bill under the 10-minute Rule, The Pregnancy and Maternity (Redundancy Protection) Bill 2019.  This goes further than the extension of 6 months to the protected period. It would provide that a new or expectant mother cannot be made redundant unless the employer has secured the consent of a specific public authority, which is only given in exceptional circumstances. This is a model adopted in Germany and very different to the  UK’s  current protections that state that if a woman is made redundant during her maternity leave, she must be offered any suitable alternative vacancies.  Under the bill it is proposed that, from the time a woman is pregnant to six months after she returns to work, she cannot be made redundant, unless the employer is closing down all of the business or ceasing the work that she is employed to do. Women who experience a stillbirth or miscarriage would similarly be protected for up to six months from the end of their pregnancy or any leave that they were entitled to.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Termination payments - The National Insurance Contributions Bill 

A bill to introduce employers National Insurance contributions on  termination payments which are taxable for income tax and exceed £30,000. Originally planned to come into effect at the same time as the reform of the tax and NI treatment of PILONS in April 2018, the changes are now on track for 6 April 2020.

Currently termination payments above £30000 attract income tax but not National Insurance as payments within sections 401 to 416 of ITEPA 2003 (which include termination payments) are not "earnings" for NICs purposes and are therefore not generally liable to NIC

Changes found in the Social Security (Contributions) (Amendment No. 2) Regulations 2018 and The National Insurance Contributions Bill will mean that from April 2020 (two years later than anticipated), Class 1A (employer’s only) NIC will also apply to the non-PENP element of a termination payment to the extent that it exceeds £30,000.

The Social Security (Contributions) (Amendment No. 2) Regulations 2018 provides that termination payments within section 402B ITEPA 2003 be treated as earnings for Class 1 NICs purposes and the  National Insurance Contributions Bill, which was introduced into Parliament on 25 April 2019. introduces a new 13.8% Class 1A Employer National Insurance contributions charge to any part of a termination award that is already Income Tax liable. Any income derived from termination awards will remain free from Employee National Insurance contributions. There is guide to the bill (which also covers the taxation of sporting testimonials)

https://services.parliament.uk/Bills/2017-19/nationalinsurancecontributionsterminationawardsandsportingtestimonials.html

 

CASES: 

Kuteh v Dartford And Gravesham NHS Trust [2019] EWCA Civ 818

Court of Appeal rule on Article 9 ECHR and unfair dismissal

Article 9 of the ECHR, which is one of "the Convention rights" set out in the Human Rights Act 1998 ("HRA"), provides that:

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Case Summary Tag: 

Foreign and Commonwealth Office & Ors v Bamieh [2019] EWCA Civ 803

Territorial application of the whistleblowing provisions in ERA 1996

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Baldeh v Churches Housing Association of Dudley & District Ltd [2019] UKEAT 0290/18

Knowledge of disability in claim for discrimination arising from disability

In this case, Ms Baldeh was dismissed by the Housing Association at the end of a six-month probationary period. It was accepted that Ms Baldeh was disabled by depression. She claimed that her dismissal was an act of disability related discrimination under section 15 Equality Act 2010.

Section 15,  Discrimination arising from disability, provides:

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

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Owen v AMEC Foster Wheeler Energy Ltd & Anor [2019] EWCA Civ 822

It was not disability discrimination to deny overseas posting to disabled employee

Section 6 of the Equality Act 2010 provides:

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and 

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."

Section 39 of the Act applies to employment and provides: 

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CCOO v Deutsche Bank SAE [2019] EUECJ C-55/18

ECJ rules that employers must maintain detailed records of workers’ working time

This ECJ case considers the requirement to maintain detailed records of a worker’s working time on a daily basis. In this case the ECJ considered a reference from the Spanish courts in connection with a complaint brought by a Spanish trade union against Deutsche Bank that the bank was breaching its obligations to monitor and record information about how many hours its employees were working.

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Pora v Cape Industrial Services Ltd [2019] UKEAT 0253/18

Unfair dismissal complaint submitted out of time due to advisor’s fault

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Base Childrenswear Ltd v Otshudi [2019] UKEAT 0267/18

Discrimination claim damages - injury to feelings award in middle of Vento band and useful analysis of other heads

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Praxair MRC [2019] EUECJ C-486/18

Calculation of benefits of employee who has taken ‘part time parental leave’

Clauses 4.1 and 4.2 of the framework agreement on part-time work states

‘1.      In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.

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Ali v Capita Customer Management Ltd [2019] and The Chief Constable of Leicestershire Police v Anthony Hextall EWCA Civ 900 and

 

 

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