Emplaw Monthly - End of September 2019

NEW ARTICLES FROM OUR AUTHORS

Global Climate Strike – five key questions for employers

An interesting article from Emplaw authors Lewis SIlkin  covering questions such as 'Do employees enjoy protections if they participate in the Global Climate Strike?'

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Podcast on National Minimum Wage developments

A free podcast from Emplaw authors Gowling WLG discussing the recent developments in the NMW arena plus the risks, enforcement and some of the tricky issues when calculating the NMW in practice.

Click here for podcast

UK Employment rights in a no-deal Brexit

An excellent summary article from Russell Brimelow at Emplaw authors, Lewis Silkin which includes what employers could do now to prepare

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Government consultation on legislative changes to “reduce ill health related job loss”

An important article given that the consultation contains some important proposals that could have a very significant effect, not simply by introducing new rights, but also by affecting those that are already familiar.  Catherine Casserley, a specialist discrimination barrister at Cloisters, considers the government proposals further.

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FOCUS ON EMPLAW

With Whistleblowing never being far from the agenda, including this month's case on 'public interest' please see our Whistleblowing card

News

LEGISLATION AND LITIGATION

Worker status - ET seeks clarification from the ECJ on the proper interpretation of the “worker” classification under EU law

An employment tribunal is seeking clarification from the ECJ on the proper interpretation of the “worker” classification under EU law. – particularly around a gig-economy worker’s right to use substitutes and whether this means they cannot be regarded as a “worker”.

https://www.cloisters.com/key-questions-regarding-couriers-employment-status-referred-to-cjeu/

TUC research on class prejudice and call for new law

The TUC has published  research on class prejudice including how working class graduates miss out on higher-paying jobs and calls on the government to:

  • Make discrimination on the basis of class unlawful, like race, sex and disability
  • Introduce a legal duty on public bodies to make tackling all forms of inequality a priority
  • Make it compulsory for employers to report their class pay gaps. 

https://www.tuc.org.uk/blogs/class-prejudice-so-rife-modern-britain-we-need-new-law-tackle-it

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

HMRC guidance on off-payroll working

HMRC has published new and updated guidance to assist with the changes to the off-payroll rules. The changes will mean that the responsibility for determining whether the off-payroll working rules (also known as IR35) apply will move to the organisation receiving an individual’s services.

https://www.gov.uk/guidance/prepare-for-changes-to-the-off-payroll-working-rules-ir35

https://ion.icaew.com/taxfaculty/b/weblog/posts/off-payrolling-from-april-2020---hmrc-publishes-guidance

Acas guidance on work for young people

Acas has published guidance for young people starting work, whether an apprenticeship, full or part time job.

https://www.acas.org.uk/index.aspx?articleid=6733

Emplaw has a specific card on employing young workers here

BSB publishes finalised guidance on regulatory references

The Banking Standards Board has published its finalised good practice guidance on regulatory references for the certification regime in the banking sector (although it has wider use outside the sector and for others subject to regulatory references).

The finalised guidance is not changed in any material form from the draft guidance consulted on. It provides some very helpful practical pointers for firms on how to request and provide regulatory references and how to minimise the risk of challenge.

https://www.bankingstandardsboard.org.uk/wp-content/uploads/2019/08/BSB-statement-of-good-practice-certification-regime-regulatory-references.pdf

Law Society Guidance on NDAs

The Law Society has published guidance on confidentiality or non-disclosure agreements (‘what you need to know as a worker’).

 https://www.lawsociety.org.uk/for-the-public/common-legal-issues/problems-at-work/non-disclosure-agreements/

Updated ICO guidance on timescale for responding to a subject access request

The ICO has updated its guidance on timescales for responding to a subject access request as well as other individual rights requests. The timescale has now changed to reflect the day of receipt as ‘day one’ as opposed to the day after receipt.. This follows  a determination made in the  Court of Justice of the European Union (CJEU)   which has been adopted by the European Data Protection Board (EDPB).

Guidance on the indiividual rights has been updates accordingly

The ICO has also have published guidance on manifestly unfounded and excessive requests under the Guide to Law Enforcement Processing.

https://ico.org.uk/for-organisations/guide-to-data-protection/whats-new/

Modern slavery reforms

The National Referral Mechanism – the system by which victims of modern slavery are identified and  provided with support – is undergoing reforms to improve the decision-making process and support offered. The first measures to be announced include:

·        a single, expert unit in the Home Office to handle cases

·        an independent panel of experts to review all negative decisions

·        a  new digital system to support the process

https://www.gov.uk/government/publications/human-trafficking-victims-referral-and-assessment-forms

CONSULTATIONS AND REPORTS

Post Brexit immigration system- Migration Advisory Committee publishes call for evidence on salary thresholds

The Migration Advisory Committee (MAC) has issued a call for evidence from employers and other stakeholders, to feed into its consideration of what salary thresholds should be put in place for skilled workers under the post-Brexit immigration system.  MAC will also now consider adding points-based eligibility criteria for skilled worker visas, a commitment made by the current Prime Minister.

The MAC previously issued a report in September 2018 which recommended lowering the skill level for sponsoring skilled workers from Regulated Qualifications Framework (RQF) Level 6 to RQF Level 3, but retaining the existing Tier 2 minimum salary threshold of £30,000, with some exceptions. That report resulted in the Government White Paper on a new Immigration system for the UK from Jan 2021 which refers to the MAC recommendations of retaining the minimum salary threshold at £30,000 but committed to further consultation.

Responses to the consultation should be submitted online by 5 November 2019.

For more information see the Emplaw card Employing EU citizens in the UK in the context of Brexit

https://www.gov.uk/government/consultations/salary-threshold-and-points-based-system-pbs-commission-call-for-evidence

Reminder of  open consultations:

Good Work Plan - proposals to support families

The government has published three consultations on the Good Work Plan: proposals for families:

·        Parental leave and pay: this consultation sets out high level options for reforming existing entitlements which could help parents to balance the gender division of parental leave. Closing date is 29 November 2019.

·        Neonatal leave and pay: this consultation looks at proposals for a new leave and pay entitlement for parents of babies that require neonatal care after birth. Closing date is 11 October 2019.

·        Transparency of flexible working and family related leave and pay policies: this consultation looks at whether employers should have a duty to consider if a job can be done flexibly and make that clear when advertising a role. It also considers options for requiring large employers (those with 250 or more employees) to publish their family related leave and pay and flexible working policies. Closing date is 11 October 2019.

https://www.gov.uk/government/consultations/good-work-plan-proposals-to-support-families

Good Work Plan: one-sided flexibility - addressing unfair flexible working practices -

Closes 11th October. See more in July's Emplaw Monthly

Good Work Plan: establishing a new Single Enforcement Body for employment rights

Closes 6th October. See more in July's Emplaw Monthly

GEO Consultation on Sexual Harassment in the Workplace

Closes 2nd October. See more in July's Emplaw Monthly

Consultation on ill health related job loss and reform of statutory sick pay

Closes 7th October. See more in July's Emplaw Monthly

 Women and Equalities Committee report on enforcing the Equality Act

The Women and Equalities Committee has published a report on enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission. It concludes that the individual approach to enforcement is no longer fit for purpose. It argues against relying on the individual approach and recommends that this should be replaced by a new approach that provides a sustainable deterrent and tackles institutional and systemic discrimination.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/equality-act-role-of-ehrc-report-published-17-19/

 

 

CASES: 

Grafe and Pohle v Südbrandenburger Nahvrkehrs GmbH [2019] EUECJ C-298/18_O

AG opinion on whether there was a transfer of an undertaking where there was no significant transfer of assets

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The Harpur Trust v Brazel [2019] EWCA Civ 1402

Even for part year workers, holiday pay must be calculated by reference to average remuneration over past working 12 weeks

In this case, the Court of Appeal has confirmed that an employer should not have capped holiday pay at 12.07% of annualised hours for a zero hour contract employee working term-time. Instead, it should have based it on average earnings over the 12 week period immediately before leave is taken, even though this may provide more favourable results for term-time workers when compared to full-timers.

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National Union of Professional Foster Carers (NUPFC) v Certification Officer [2019] UKEAT 0285/17

Foster carer union did not qualify for listing as foster carers  not workers

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E.ON Control Solutions Ltd v Caspall [2019] UKEAT 0003/19

ET claim with incorrect early conciliation number was invalid

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Barrasso v New Look Retailers Ltd [2019] UKEAT 0079/19

Employee shareholder could not claim unfair dismissal

Section 205 A Employment Rights Act 1996 sets out the provisions for employee shareholders:

 (1) An individual who is or becomes an employee of a company is an "employee shareholder" if—

(a) the company and the individual agree that the individual is to be an employee shareholder,

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Community Based Care Health Ltd v Narayan [2019] UKEAT 0162/18

Out of hours GP was a worker even though her company received payment

In this case the EAT held that Dr Narayan, a GP who provided out of hours services for a not for profit company, was a worker within section 230(3)(b) Employment Rights Act 1996. Dr Narayan also did locum GP work through an agency which was treated as self employed work.

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Okwu v The Shrewsbury & Rise Community Action [2019] UKEAT 0082/19

‘Public interest’ test in whistleblowing claim

Section 43B of the Employment Rights Act 1996 provides that:

“Disclosures qualifying for protection. 

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— 

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Kasongo v Humanscale UK Ltd [2019] UKEAT 0129/19

Employer could not cherry pick privileged advice

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Hallett v Derby Hospitals NHS Foundation Trust [2019] EWCA Civ 1394

Software used to calculate rest breaks in NHS Trusts was flawed

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Okedina v Chikale [2019] EWCA Civ 1393

Employee working in breach of immigration restrictions entitled to bring contractual claims

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Fshc Group Holdings Ltd v Glas Trust Corporation Ltd [2019] EWCA Civ 1361

Mistake and rectification

Rectification is an equitable remedy by which the court may amend the terms of a legal document which, because of a mistake, fails accurately to reflect the intention of the parties to it. It was for years understood that the intention which the court was concerned to identify in deciding whether to grant this remedy was the actual intention of the relevant party or parties as a matter of psychological fact. Recently, however, a different approach has been proposed where the document is a written contract.

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