Emplaw Monthly - End of October 2019

NEW ARTICLES FROM OUR AUTHORS

Gilham v Ministry of Justice: A New Chapter in Employment Protection?

Chris Milsom,  from Emplaw authors, Cloisters, considers the recent Supreme Court decision which  puts human rights at the heart of employment protection.

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Senior Managers And Certification Regime - Are You Prepared?

Following publication by the Financial Conduct Authority (FCA) of its Final Rules on the extension of the Senior Managers and Certification Regime (SMCR) to all solo-regulated firms which will apply from 9 December 2019, Sushil Kuner and Simon Stephen, from Emplaw authors Gowling WLG, summarise the key changes and explore the practical considerations for solo-regulated firms

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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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NEWS

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

Online tool to help individuals and companies with Brexit uncertainty

There is a useful step by step guide which uses a series of questions (starting with personal matters and then moving to business

ones) and then directs the user to the relevant information including sector specific guidance.

https://www.gov.uk/brexit?gclid=EAIaIQobChMI2aGRjv275QIVRLTtCh3XqQ1_EAAYASADEgKVvvD_BwE&gclsrc=aw.ds#business

Acas guidance on menopause

Acas has published guidance on ‘menopause at work’ , which guides employers on how to support workers through the menopause and how to find solutions as well as providing guidance on the law.

https://www.acas.org.uk/index.aspx?articleid=6752&utm_medium=email&utm_campaign=NTL%20Menopause%20special&utm_content=NTL%20Menopause%20special+CID_07cd8e3f92681e0eafacff0205a6a808&utm_source=Acas%20National%20Email%20Marketing%20Live&utm_term=Read%20Acas%20Menopause%20at%20Work%20guidance

IR35 - new tool and cases

HMRC has announced it will launch an enhanced version of the CEST tool before the end of the year.  Whilst useful in the context of IR35, it is a test to determine employee or self-employed status. As such, it applies to direct engagements as well and employers would be well advised to have reference to it when engaging individual freelances. For more on IR35 see September’s Emplaw Monthly

http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j11337/TC07377.pdf

Meanwhile, the First-tier Tribunal  has decided that IR35 applies to successive contracts of three news presenters working for the BBC. The Tribunal found against the three BBC presenters and found  that there was sufficient mutuality and a sufficient framework of control to place the relationships between the BBC and the presenters in the employment (rather than self-employed) field.

https://www.taxjournal.com/articles/paya-ltd-others-v-hmrc

EHRC guidance on the use of confidentiality agreements in discrimination cases

The Equality and Human Rights Commission has published guidance giving a clear explanation of the law relating to confidentiality agreements.

It describes good practice when using confidentiality agreements, as well as explaining when they would be unlawful.

For a summary of recent developments as regards NDAs in the employment context , please see July's Emplaw Monthly

https://www.equalityhumanrights.com/en/publication-download/use-confidentiality-agreements-discrimination-cases

Queen’s Speech 2019

The Queen’s Speech, proceeding on the assumption that Brexit will take place, includes the following proposals:

Immigration

There will be an Immigration Bill, which will end free movement. The Bill will include measures to reinforce the commitment that resident European citizens have the right to remain. The Bill will align the treatment of citizens coming to the UK from the EU with those who are coming from non-EU countries.

Tips

The government will bring forward the Employment (Allocation of Tips) Bill. This is intended to ensure that tips are kept in full, or distributed fairly and transparently to, those who work for them.

Good Work Plan

The government will continue to deliver on the commitments in the Good Work Plan, ensuring that employment practices keep pace with modern ways of working and productivity is enhanced.

https://www.gov.uk/government/speeches/queens-speech-2019

https://www.gov.uk/government/publications/queens-speech-2019-background-briefing-notes

Labour party conference: employment law proposals

At its annual party conference, the Labour party announced that it would reduce the working week to 32 hours a week, without reduction of pay. It is intended that this reduction should take place over a period of ten years and would be negotiated as part of collective bargaining.

There were also proposals to provide flexible working to menopausal women and to require managers in firms with over 250 employees receive training on the effects of menopause (also see new  Acas guidance above)

https://www.bbc.co.uk/news/uk-politics-49798357

https://www.bbc.co.uk/news/uk-politics-4978113

Tory party conference: employment law proposals

The Chancellor announced plans to reduce the threshold for the National Living wage from 25 to 21 within 5 years.

The Home Secretary announced plans to introduce a points based immigration system. In terms of practical steps, the current position remains that the Migration Advisory Commitee is considering  adding points-based eligibility criteria for skilled worker visas, as part of its current  wider consultation (closing on 5th November 2019) - for more information see Emplaw Monthly -September 2019

https://www.bbc.co.uk/news/uk-politics-49881980

CONSULTATIONS AND REPORTS

EC Report on implementation of Enforcement Directive on posting of workers

The European Commission has published a report on the application and implementation of the Directive concerning the posting of workers, as required by Article 24 of the Enforcement Directive.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2019:426:FIN

https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1569415738602&uri=SWD:2019:337:FIN

Whistleblowing Directive plus report of the Charity Commission 

The European Parliament has approved a new  Whistleblowing Directive (Directive on the Protection of Persons who report breaches of Union law) which will now be published in the Official Journal and come into force 20 days later .Member states will have two years to transpose the new rules into their national law.

Whilst the Directive only concerns certain breaches of EU law its principles are expected to be applied more broadly.

In summary, the Directive will make it more important for employers to set up confidential and effective whistleblowing procedures which are managed by a named individual or department and that they consider opening up those channels to non-employees.

Meanwhile, in its recent report on Whistleblowing disclosures made to the Charity Commission for England and Wales 2018 to 2019 , the Commission states that it has begun to treat charity volunteers, as well as charity workers, as whistleblowers, where appropriate. While such volunteers do not receive the statutory protections afforded to charity workers, the Commission recognises that:"in other respects they face many of the personal challenges and risks experienced by workers and therefore need the same sort of engagement from us."

https://www.consilium.europa.eu/en/press/press-releases/2019/10/07/better-protection-of-whistle-blowers-new-eu-wide-rules-to-kick-in-in-2021/

https://www.gov.uk/government/publications/whistleblowing-disclosures-made-to-the-charity-commission-for-england-and-wales-2018-to-2019/whistleblowing-disclosures-made-to-the-charity-commission-for-england-and-wales-2018-to-2019#our-plans-for-improvement

Collection and reporting of  Class 1A employer NICs liabilities on termination awards from April

On 16 October 2019, HMRC published draft regulations to enable HMRC to collect and for real time reporting on, the Class 1A National Insurance contributions (NICs) due on termination awards above £30,000 and on payments arising from non-contractual and non-customary sporting testimonials above £100,000 created in the National Insurance contributions (Termination Award and Sporting Testimonials) 2019 Act.

The consultation closes on 16 January 2020 and the  changes are due to come into effect from 6 April 2020

The National Insurance contributions (Termination Award and Sporting Testimonials) 2019 Act readers may recall, includes the introduction of Class 1A employer’s NICs ( but not employee NICs) on Termination payments taxable under section 403 of ITEPA 2003. As with income tax, the first £30,000 of such a payment is exempt from the Class 1A NICs charge.

For more information see the Emplaw law card Tax - Post termination issues

https://www.gov.uk/government/consultations/draft-legislation-the-social-security-contributions-amendment-no-x-regulations-2020

2019 UK Annual Report on Modern Slavery

This annual report  states that  in 2018, there were 6,985 potential victims referred to the National Referral Mechanism (a 36% increase from 2017), of whom  45% (3,128) were exploited as children. The report explains the  implementation of the four Ps’ framework used in the Modern Slavery Strategy,which was published in 2014

Pursue: Prosecuting and disrupting individuals and groups responsible for modern slavery.

Prevent: Preventing people from engaging in modern slavery, either as victims or offenders.

Protect: Strengthening safeguards against modern slavery by protecting vulnerable people from exploitation and increasing awareness of and resilience against this crime.

Prepare: Reducing the harm caused by modern slavery through improved victim identification and enhanced support.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840059/Modern_Slavery_Report_2019.pdf

LEGISLATION AND LITIGATION

What is not happening

A number of Private Members' Bills failed to complete their passage through Parliament before the end of the parliamentary session and will make no further progress.  These include:

  • The Pregnancy and Maternity (Redundancy Protection) Bill 2017-19 -a Bill to prohibit making employees redundant during pregnancy, maternity leave and the period of six months from the end of pregnancy; and for connected purposes. (Note however the government, in its response to the consultation concerning the extension of redundancy protection for parents returning from maternity or other parental leave confirmed that it intends to implement most of its consultation proposals – see July’s Emplaw Monthly)
  • The National Living Wage (Extension to Young People) Bill 2017-19 which aimed  Bill to extend the National Living Wage to people aged 18 to 24.
  • The  Shared Parental Leave and Pay (Extension) Bill 2017-19 which included provision about shared parental leave and pay for workers, including those that are self-employed
  • The Workers (Definition and Rights) Bill 2017-19 aiming to amend the definition of worker and to provide workers  rights more akin to employees.

https://services.parliament.uk/bills/2017-19/pregnancyandmaternityredundancyprotection.html

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

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

https://services.parliament.uk/bills/2017-19/workersdefinitionandrights.html

ET statistics April – June 2019

The quarterly ET statistics for April – June 2019 have been  published.

Single ET receipts and caseload outstanding increased, by 14% and 19% respectively, compared to the previous year. Multiple ET receipts and disposals decreased over the same period, by 57% and 38% respectively.

In 2018/19 disability discrimination claims received the largest average award (£28,000) compared to other discrimination jurisdictions.

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-april-to-june-2019

 

CASES: 

Ugradar v Lancashire Care NHS Foundation Trust [2019] UKEAT 0301/18

NHS Agenda for Change redundancy payments and comments on the consequences of the statutory cap on contractual claims in the ET

This case is an appeal against part of an ET decision by which Ms Ugradar’s claim against the NHS Trust for a contractual redundancy payment was upheld but her claim for a statutory redundancy payment was rejected because the ET argued that that sum (£25,000) was subsumed into the contractual entitlement which was capped. Ms Ugradar appealed against the dismissal of that part of the claim.

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Conisbee v Crossley Farms Ltd & Ors [2019] UKET 3335357/2018

Vegetarianism not a protected characteristic

This case is a preliminary ET decision to establish whether vegetarianism is a protected characteristic under the Equality Act 2010.

Mr Conisbee was a vegetarian and the ET did not dispute that he had a genuine belief in his vegetarianism. The preliminary hearing was to determine whether vegetarianism was capable of satisfying the requirement and definition of being a philosophical belief (the protected characteristic).

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Dronsfield v The University of Reading [2019] UKEAT 0255/18

In house solicitor’s amendment of investigation report did not taint fairness of dismissal

This case concerns the fairness of a dismissal in circumstances where an investigation report into Mr Dronsfield’s alleged misconduct (conducting a sexual relationship with a student) was reviewed by an in house lawyer who amended the report and omitted factors favourable to Mr Dronsfield in the final report.

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Case Summary Tag: 

Mackereth v (1) Department for Work and Pensions (2) Advanced Personnel Management Group

Christian doctor’s views on transgender persons not a protected characteristic

This ET decision considered whether there was a contravention of Part V of the Equality Act 2010 and whether Mr Mackereth was subjected to direct or indirect discrimination or harassment.

APM was an employment services provider that assisted businesses with the recruitment, hiring and on-boarding process of employees, workers and contractors in a number of sectors including healthcare.

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Safeway [2019] ECJ C-171/18

ECJ rules that there should be no retrospective levelling down

This case concerns a request for a preliminary ruling concerning the interpretation of Article 119 EC Treaty (now Article 141) and enshrined today in Article 157 TFEU.

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Mrs S PO-20087

Employer's duty of care to inform employee of changes to the regulations governing the pension scheme

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Case Summary Tag: 

Delve & Anor, R (On the Application Of) v The Secretary of State for Work and Pensions [2019] EWHC 2552

State’s decision to increase the pensionable age for women from 60 to 65 was not unlawful

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Gilham v Ministry of Justice [2019] UKSC 44

Breach of Article 14 and Article 10 ECHR to exclude judges from whistleblowing protection

This case concerns the employment status of district judges although it could apply to the holder of any judicial office. The issue is whether a district judge qualifies as a ‘worker’ or a ‘person in Crown employment’ for the purpose of protection given to whistleblowers under Part IVA Employment Rights Act 1996.

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